Date: 20051130
Docket: T-1254-92
Citation: 2005 FC 1623
BETWEEN:
CHIEF ERMINESKIN, LAWRENCE WILDCAT, GORDON LEE, ART
LITTLECHILD, MAURICE WOLFE, CURTIS ERMINESKIN, GERRY ERMINESKIN, EARL
ERMINESKIN, RICK WOLFE, KEN CUTARM, BRIAN LEE, LESTER FRAYNN, the elected Chief
and Councillors of the Ermineskin Indian Band and Nations suing on their own
behalf and on behalf of all the other members of the Ermineskin Indian Band and
Nation
Plaintiffs
-
and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA, THE
MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT AND THE MINISTER OF FINANCE
Defendants
REASONS
FOR JUDGMENT
TEITELBAUM, J.
I. Introduction
A. Overview
[1]
On its face, this case appears to be about money – royalties that were
generated by the commercial exploitation of the Bonnie Glen D3A oil and gas
field underlying the Pigeon Lake Reserve and the interest that was, in turn,
paid on these royalties. If only things were that simple. This case is also
about a relationship that is often described as sui generis, that is,
unique, unlike any other. The parties to this sui generis relationship
are the Plains Cree of Treaty 6 – more particularly, the Ermineskin Indian Band
and Nation – and the Crown, or the Canadian Government. In some instances, I
will speak of the Plains Cree in a general and wider sense; at other times, I
will focus on the Ermineskin Indian Band and Nation. I wish to stress the very
important point that I am not attempting to describe or define the Crown’s
relationship with all First Nations or aboriginal people; rather, I am
concerned with their relationship vis-à-vis Ermineskin.
[2]
The origins of this relationship are steeped in history. Treaty 6 was
concluded in August and September 1876. The Dominion of Canada came into being
on July 1, 1867, with Confederation. While the country was young at treaty
time, European presence on the North American continent, and in the Canadian
Northwest in particular, dated back centuries. Of course, it is too simplistic
to speak of one history. There are many, and they are rich and varied. They
include the origins, cultures, and lives of the tapestry of First Nations
across the continent; the fur trade and economic history; the political
histories of French, British, and American colonies; and of course, the
development of Canada.
[3]
While at times it felt like the Court had been sent back to school, the
historical information and interpretations presented were always interesting
and, on many occasions, quite fascinating. It would have been all too easy to
wander down the many well-trod avenues, lesser byways, and faint trails of our
history.
[4]
A vast quantity of evidence and documents was produced at trial. For
example, exhibit SEC-427 comprises 48 binders containing 1243 documents.
Exhibit EC-429 marks a series of 32 binders housing 969 documents. Then there
are several other smaller series of binders consisting of documents tendered by
one party but objected to by the other or agreed to by all the parties.
Clearly, much ink has been spilled and reams of paper devoured over the course
of this action.
[5]
I am sure that all counsel believed every bit of this material is
important and merits mention. Counsel and their experts obviously went to a
great deal of trouble and effort to assemble this information for the Court’s
benefit. Much of it has been helpful. I am greatly appreciative and commend all
counsel for their efforts in this regard. I do, however, offer this caveat:
while I have sought to consider all relevant material, it is not possible to
reproduce, or describe, in these Reasons all of the evidence adduced, nor is it
necessary. I shall endeavour to present intelligently and succinctly what took
370 days over the course of nearly five years to present at trial. I have
attempted to present, for the most part, an historical chronology, as opposed
to drifting into any analytical abstractionism, which is best left to
academics, not judges.
[6]
On February 24, 1994, Jerome A.C.J. ordered that Federal Court Actions
T-1254-92 (the “Ermineskin action”), T-2022-89 (the “Samson action”), and
T-1386-90 (the “Enoch action”) be heard together. The Enoch action, however,
was subsequently severed from the Ermineskin and Samson actions, by Order dated
June 20, 1996. On October 1, 1999, MacKay J. ordered that the Ermineskin and
Samson actions be heard together, commencing on May 1, 2000 in Calgary.
[7]
On June 2, 2000, this Court set out the manner in which evidence was to
be treated in these actions. The Federal Court of Appeal amended paragraphs 3
and 4 of that Order, on September 11, 2000, for purposes of clarity. The effect
of the Order is that the actions were not conducted on the basis of common
evidence. A system was established whereby a plaintiff could elect to adopt a
witness’s evidence, before that witness testified, so that the entirety of the
witness’s evidence was evidence in that plaintiff’s case. Thus, each plaintiff
retained control and discretion over the manner in which it chose to litigate
its case, subject, of course, to the Court’s ultimate control over the
proceedings. While the two actions were heard together, each maintained its
integrity as a separate, discrete action.
[8]
The parties agreed to proceed with the trial in phases: General and
Historical, Money Management, Oil and Gas, Other Oil and Gas Issue (plaintiffs
call it the Tax Issue; the Crown refers to it as the Regulated Price Regime
Issue), and Programs and Services (including Per Capita Distribution Issue,
which I note seems to have morphed into its own phase at some point). By Order,
dated June 12, 2000, the Programs and Services phase was severed from the
Ermineskin action, but without prejudice to a future resolution of those
issues. Soon after the trial of this action began, however, it became readily
apparent that all of these phases could not be heard within the 120 trial days
originally forecasted by the parties. Indeed, that forecast was completely
divorced from reality and may better be described as an example of wishful
thinking or perhaps boundless optimism. Accordingly, and on consent of the
parties, I ordered, on September 17, 2002, that I would continue as trial judge
for the first two phases only and that the other phases be severed off to be
heard by another judge at some point in the future.
B.
Objections Taken Under Reserve
[9]
During the course of most, if not all, trials, one can expect to
hear objections by counsel. Given the length and complexity of this particular
trial, there were numerous objections. Some were decided at once, while others
were taken under reserve, with the evidence objected to being allowed in for
the sake of a complete record and any appellate action. I propose now to set
out the disposition of those objections, where relevant and necessary for the
purposes of these Reasons. Wherever possible, I have tried to pinpoint the
objections by reference to transcript volumes and pages numbers. What follows
is the disposition of the outstanding objections:
(i) Transcript volume 197, pp.
28008-28023: the Crown’s objection to
SE-453 is denied.
(ii) Transcript volume 201, pp.
28407-28409: the plaintiffs’ objection
is denied.
(iii) Transcript volume 202, pp.
28565-28576: the plaintiffs’ objection
is denied. The question relates to facts and is not seeking to elicit a legal
opinion.
(iv) Transcript volume 216, pp.
30946-30953: Ermineskin’s objection is
allowed. C-490 is an exhibit in the Samson action only.
(v) Transcript volume 220, pp.
31542-31561: the Crown’s objection is
denied. The questions relate to facts within the witness’s direct knowledge and experience.
(vi) Transcript volumes 223-227: the
plaintiffs’ objections to the
admissibility of the without prejudice privilege documents are denied. Such
documents are allowed in solely to contradict facts or assertions made by the
plaintiffs and not to show any weakness in their case. Evidence on band
spending and investments is also not admissible.
(vii) Transcript volume 255, pp.
37375-37378: plaintiffs’ objection is
allowed; the evidence relates to the Ermineskin Heritage Trust proposal and is
irrelevant.
(viii) Transcript volume 285, pp. 67-86
and 125-133: plaintiffs’ objection is
denied; C-688 and C-692 are admissible.
(ix) Transcript volume 286, pp. 36-83:
plaintiffs’ objection is allowed.
Evidence pertaining to the Ermineskin Heritage Trust proposal is irrelevant and
therefore inadmissible.
(x) Transcript volume 334, pp. 158-162:
the plaintiffs’ objection is denied and
the question permitted.
(xi) Transcript volume 335, pp. 95-104:
the plaintiffs’ objection is denied and
questions on the target ratio are allowed.
(xii) Transcript volume 339, pp.
165-168: the Crown’s objection is
allowed. Oil and gas valuations are not relevant for the first two phases of
this action. Transcript volume 339, pp. 178-182: the Crown’s objection is allowed. The cut-off issue and the
Crown’s subsequent settlement of that
issue are of no relevance to the ongoing action.
(xiii) Transcript volume 344, pp. 47-63:
The Crown’s objections to S-1017 and
S-1018 are allowed. These reports are totally irrelevant to the first two
phases.
(xiv) The plaintiffs object to the
entirety of the reports (C-286 and C-287) and viva voce evidence of
Professor Flanagan. The objections are denied.
(xv) The plaintiffs object to the
reports (C-341 and C-342) and viva voce evidence of Dr. von Gernet. The
objections are denied.
(xvi) The plaintiffs object to the
reports (C-910, C-911, and C-912) and evidence of Mr. Ambachtsheer. Their
objections raise serious issues. The Court will not consider those passages of
Mr. Ambachtsheer’s reports that were
shown to arise largely, if not entirely, from the pen of Crown counsel. The
Court will permit as admissible Mr. Ambachtsheer’s viva voce evidence; the weight it will be assigned remains to
be determined.
(xvii) The plaintiffs object to the
report (C-897) and viva voce evidence of Mr. Bertram. The plaintiffs’ objections are denied.
(xviii) The plaintiffs object to the
reports (C-998 and C-999) and viva voce evidence of Mr. Scalf. The
objections are denied.
(xix) The plaintiffs object to the
report (C-1008) and viva voce evidence of Mr. John Williams. The
objections are denied.
[10]
If I have failed to include any other objections taken under
reserve, it is because it was not necessary to decide them for the resolution
of the issues before the Court.
C. Issues
[11]
In the first of their two volume closing arguments brief, Ermineskin
sets out its view of the issues to be decided in both phases of the action
which, for clarity’s sake, are reproduced in full below:
(a) is and was the Crown in breach of its duties as a
trustee (or, alternatively, as a fiduciary with obligations identical to those
of a trustee) by:
(i) using Ermineskin’s moneys for its own purposes
rather than investing them;
(ii) failing to provide a proper return through prudent
investment or otherwise;
(iii) failing to monitor the trust fund and its rate of
return adequately or at all;
(iv) failing to obtain and to properly consider
appropriate investment advice; and
(v) failing to maintain proper accounts, and to report
properly to the beneficiary; and
(b) if the Crown is in breach of its duties as a
trustee, what is the proper approach to assessing damages or equitable
compensation for the breach; that is:
(i) what ought the Crown to have done in terms of investing
the moneys, if it had invested them;
(ii) what is the difference between what would have
been the value of the fund if properly invested, compared with its actual value
at the time of judgment;
(iii) alternatively, if the Crown did not have a duty to
actually invest the moneys, what formula or benchmark ought the Crown to have
adopted in order to calculate the amount payable to Ermineskin, and by what
amount would that calculation have exceeded the amount actually paid by the
Crown (in Ermineskin’s submission, the answer to this question ought to be the
same as the answer to (ii), above); and
(iv) in the alternative, what is the amount by which
the Crown benefited in using Ermineskin’s moneys for its own purposes, rather
than borrowing the moneys at arms length from third parties?
(Closing Argument of the Ermineskin Plaintiffs, Volume 1, pp. 3-4)
[12]
Ermineskin also filed a Notice of Constitutional Question, dated
November 2, 2004, in which it challenges, among other things, what it terms the
“Indian Moneys Enactments” insofar as they have been interpreted to preclude
investment of its moneys or to provide a rate of return commensurate with the
return which a reasonable trustee ought to have obtained by investing the money
prudently.
[13]
The Crown, for its part, addressed both the Samson and Ermineskin
actions in the same closing arguments briefs. As the Crown sees it, Ermineskin
has put forth two broad theories of Crown liability. First, the Crown should
have adopted a different method of investing Indian moneys or calculating
interest, dating back to the mid-1970s. Second, the Crown placed itself in a
conflict of interest by depositing Indian moneys to the Consolidated Revenue
Fund (CRF); the Crown benefited by paying a lower rate of interest than it
would have paid to borrow the same amount of money from arm’s-length third
parties.
[14]
The following constitutes the Crown’s view of the issues the Court is
faced with in the money management phase of the trial (with those portions
relevant to the Samson action edited out):
(a) In general terms, how is the relationship between
the Crown and the Plaintiffs with respect to their moneys to be characterized?
In particular, are there significant differences between this relationship and
that between an ordinary private law trustee and beneficiary? The Crown’s
position is that there are significant differences. The Crown is a trustee of
the Indian moneys, but the only terms of that trust are those set out in the
governing legislation. Any other obligations which the Crown has with respect
to Indian moneys can only be characterized as fiduciary obligations or as
implied statutory obligations – not private trust law obligations.
(b) Are the objectives set by [Ermineskin], the degree
of long-range planning in which they engaged, and the pattern of their
expenditures, significantly different than those typical of pension and
endowment funds generally or the PSSA in particular? The Crown submits that
they are.
(c) By virtue of the combination of the Indian Act
and the Financial Administration Act (and since 1977 the Indian Oil
and Gas Act as well):
(i) Must the Crown deposit Indian moneys in the CRF
rather than investing them in the private markets? The Crown submits that it
must.
(ii) Must the Crown accord the same rate of interest to
all Indian Bands? The Crown submits that it must.
*
* *
(d) Does the legislation governing the Crown’s handling
of Indian moneys infringe some Treaty or aboriginal right of the Plaintiffs, or
does it otherwise offend the Constitution in some way? More specifically:
*
* *
(iii) Does the legislative scheme
governing the treatment of Indian moneys infringe the right to equality before
the law granted to individuals under Section 15 of the Charter? The Crown
submits that it does not.
(iv) Is any infringement of constitutionally protected
rights of the Plaintiffs a justifiable one in all of the circumstances? The
Crown submits that it is.
In summary, the Crown submits that the legislation
governing the Crown’s handling of Indian moneys is constitutional. It infringes
no Treaty or aboriginal right of the Plaintiffs, and in the alternative is a
justifiable infringement in the circumstances.
* * *
(f) Does the Parliament of Canada owe any fiduciary
duty to the Plaintiffs with respect to the creation of legislation concerning
Indian moneys? The Crown submits that it does not.
(g) Does the Governor-in-Council owe any fiduciary duty
to the Plaintiffs in establishing the interest rate to be paid on Indian moneys
pursuant to Section 61(2) of the Indian Act? The Crown submits that it
does not.
(h) Is the establishment of the interest rate by the
Governor-in-Council subject to one or more standards that may be implied in
Section 61(2) of the Indian Act, such as an obligation to act in good
faith, an obligation to take the Indian interest into account, an obligation to
establish a rate not designed to benefit the Crown, or an obligation to
establish a rate which is reasonable in all of the circumstances? The Crown
does not concede that any such standards can be read into the legislation, but
submits that if there are to be, the Crown has met all of them.
(i) In establishing the interest rate to be paid on
Indian moneys pursuant to Section 61(2), is the Governor-in-Council entitled to
take into account:
(i) the fact that the rate applies to all Indian Bands
across the country?
(ii) the fact that Indian moneys are not committed to
remain in the CRF for any particular period of time?
(iii) the fact that higher rates benefit Indian Bands
but at the expense of increased borrowing costs for Canada?
The Crown submits that the Governor-in-Council is
entitled to take into account all of these things.
(j) Is the Indian moneys interest rate formula a
reasonable one given all of the circumstances surrounding it, and in particular
that:
(i) It includes a risk premium by virtue of the use of
a long bond rate;
(ii) At the same time, it involves no risk to
[Ermineskin] of any decline in principal value;
(iii) The long bond rate is typically the highest rate
paid by the Crown to finance its borrowing requirements;
(iv) The formula applies to all Indian Bands across the
country;
(v) Indian moneys are not committed to remain in the
CRF for any particular period of time, but instead may be withdrawn at any time
upon request by [Ermineskin] and approval by the Minister;
(vi) The Crown has been prepared to work with
[Ermineskin] to establish new mechanisms whereby [Ermineskin itself] can pursue
higher rates of return by assuming greater risk with [its] moneys?
The Crown submits that it is a reasonable formula in
all of the circumstances.
(k) At any point in time, was the prospect of declining
interest rates so certain that it was unreasonable for the Crown not to have
taken steps to lock-in current rates for the Indian moneys, bearing in mind inter
alia the competing risks entailed in doing so, the fact that Indian moneys
were not locked in for any particular time period in the CRF, and the
aspirations of the Bands to in fact remove them in the near term. The Crown
submits that it was not unreasonable in all of the circumstances.
(l) If the Crown had any authority to make investments
with Indian moneys:
(i) Was the conservatism inherent in the Indian moneys
formula nevertheless appropriate for the Plaintiffs given their level of long
range planning, objectives, risk tolerance and spending patterns? The Crown
submits that it was.
(ii) Was the Crown entitled to respect the spending
decisions of [Ermineskin] in view of [its] demands for increased respect by the
Crown for [its] decision-making and increased powers of self-government? The
Crown submits that it was, and that it had no obligation to impose upon the
Plaintiffs a restricted spending policy contrary to their wishes.
(m) If Indian moneys had not been deposited in the CRF,
how would the Crown have met its incremental borrowing costs, and would it have
inevitably involved more cost to the Crown? The Crown submits that no increased
cost was inevitable because the Crown could have replaced the Indian moneys with
the issuance of additional Treasury Bills at lower cost to the Crown. The Crown
further submits that this is in fact what it would have done, and that its
overall debt management costs would have been lower under any alternative
scenario as well.
(Written Closing Argument of the Crown, Moneys Phase, Volume 1, tab 1,
pp. 26-30)
[15]
The starting point is Treaty 6. Ermineskin contends that Treaty 6
governs the relationship between the parties and that Treaty 6 is the source,
or one of the sources, of the trust and fiduciary relationship between the
parties.
[16]
I am mindful of the fact that there is a phase that may be heard later,
even though Ermineskin had it severed from this action, tentatively called
Programs and Services. I will not attempt to define the exact parameters of
that phase, but I do note that it will deal with, at least in part, treaty
rights and entitlements. It is inescapable that Treaty 6 – the historical
context and surrounding circumstances of its creation, as well as its content –
has been put into issue in this first phase. Unlike the Samson action, however,
Ermineskin have deliberately chosen not to litigate the meaning and
interpretation to be given to the surrender clause of Treaty 6. Ermineskin is
not, in this action at least, challenging the off-reserve surrender issue.
[17]
Ermineskin asserts that there is a trust relationship between Ermineskin
and the Crown. Ermineskin contends that the foundation for this trust and its
essential terms were laid down in Treaty 6. According to the plaintiffs, the
trust corpus comprises the capital received by the Crown, on behalf of
Ermineskin, after Ermineskin surrendered its mineral rights in the Pigeon Lake
Reserve in 1946.
[18]
Ermineskin contends that that there have been serious breaches by the
Crown of its trust obligations relating to the control and management by the
Crown of Ermineskin’s moneys. The plaintiffs argue that the Crown ought to have
conducted itself as a trustee according to standard industry practice – as a
commercial trustee. In Ermineskin’s submission, the Crown ought to have
invested its royalty moneys in a balanced, diversified portfolio;
alternatively, the Crown ought to have paid the plaintiffs an equivalent
return, tied to a benchmark or market index.
II. Phase
One: General and Historical
A. Witnesses
I. Experts
1. For the plaintiffs
Professor Arthur Ray
[19]
Professor Ray tendered a report titled “The Economic Background to
Treaty 6" and a rebuttal report titled “Commentary on Report of Dr. Thomas
Flanagan” (both filed as S-3). Professor Ray earned his Ph.D. in historical
geography in 1971 from the University of Wisconsin for his thesis “Indian
Exploitation of the Forest-Greenland Transition Zone in Western Canada,
1650-1860: A Geographical View of Two Centuries of Change.” He has held the
rank of Professor and taught in the History Department at the University of
British Columbia since 1981. Professor Ray has taught numerous courses in the
Department of History, and has published extensively, including the book Indians
in the Fur Trade. Professor Ray was qualified at trial as “an expert in the
historical geography of the Aboriginal Peoples of Canada, with a particular
expertise on the fur trade and the economic history of the Canadian Aboriginal
Peoples, including the Plains Cree.”
Professor Douglas Sanders
[20]
Professor Sanders, a lawyer and legal historian, tendered an expert
report titled “Historical Thinking and Practice on the Relationship Between
Indian Tribes and the Crown in Canada” (S-49). Professor Sanders received his
Master of Laws from the University of California, Berkeley in 1963. Professor
Sanders practised law in Vancouver from 1964 until 1969 and in Victoria from
1975 until 1977. He was an Associate Professor in the Faculty of Law at the
University of Windsor from 1969 to 1972. He was director of the Native Law
Centre at Carleton University from 1972 until 1974. Professor Sanders acted as
legal counsel and research coordinator for the Union of British Columbia Indian
Chiefs from 1974 to 1975. At the time of his testimony, in January 2001, he had
been a Professor of Law at the University of British Columbia since 1977. His
C.V. lists his principal teaching areas as Indigenous Peoples, federalism,
international human rights, and sexuality. Professor Sanders was qualified at
trial as “an expert legal historian with particular expertise in comparative
policy and international developments in relation to indigenous peoples, and
with particular attention to the evolution of government policy in Canada
relating to aboriginal peoples, including the role of treaties and the
development of government policy relating to Aboriginal self-government.”
Professor H.C. Wolfart
[21]
Professor Wolfart, a linguist, tendered an expert report titled
“Linguistic Aspects of Treaty Six” and a surrebuttal report titled “Aspects of
Linguistics” (S-68). Professor Wolfart earned an M.A. in 1966, M. Phil. in
1967, and Ph.D. in 1969 from Yale University. Since 1969, Professor Wolfart has
been at the University of Manitoba. From 1969 to 1972, he was an Assistant
Professor; and from 1972 until 1977, he was an Associate Professor, both
positions in linguistics / anthropology. From 1977 to 1984, he was a Professor
in linguistics / anthropology, and he served as head of the Anthropology
Department from 1977 to 1978. Professor Wolfart was a Professor of Linguistics
from 1969 to 1987, and was head of the Linguistics Department from 1987 until
1996. Since 1993 until at least the time of his testimony in March and April
2001, he has held the rank of University Distinguished Professor in
Linguistics. His C.V. (S‑66) demonstrates that he has published rather
extensively in, among many other things, the area of Algonquian linguistics,
and more particularly, the Cree language. Professor Wolfart was qualified at
trial as “an expert in general and historical linguistics, the history of
linguistics, with an emphasis on linguistic and philological methods, the
linguistic analysis of Cree, and the analysis of texts and their structures.”
2. For the defendants
Dr. Thomas Flanagan
[22]
Dr. Flanagan, a political scientist, tendered a report titled “Analysis
of Plaintiffs’ Experts’ Reports in the Case of Chief Victor Buffalo v. Her
Majesty the Queen et al.” (C‑286) and a rebuttal report to Professor
Wolfart’s report (C-287). Dr. Flanagan earned his Ph.D. in political science
from Duke University in 1970 for his dissertation “Robert Musil and the Second
Reality.” He has been with the University of Calgary’s Department of Political
Science since 1968 and until at least the time of his testimony in January and
March 2002. He became a Professor in 1979 and served as department head from
1982 until 1987. He was academic policy advisor to the president from 1988 to
1990. Dr. Flanagan served as the director of policy, strategy, and
communications, then director of research for the Reform Party of Canada from
1991 to 1992. At the time of his testimony in May 2002, he indicated he would
be seeking a secondment from the University of Calgary so as to become the
director of operations for the Office of the Leader of the Opposition in
Ottawa. Dr. Flanagan has published extensively, including the book First
Nations? Second Thoughts (C-277). Dr. Flanagan was qualified at trial as “a
political scientist and historian whose expertise includes Western Canadian
Political History generally and, in particular, the history of aboriginal and
government relations, including treaties and the administration of government
programs. He also has expertise in the use of historical research
methodologies, including the analysis and interpretation of historical primary
source documents.”
Dr. Alexander von Gernet
[23]
Dr. von Gernet, an
anthropologist, tendered the following reports: “Aboriginal Oral Documents and Treaty Six” (C-341); “An Assessment of
Certain Evidence Relating to Plains Cree Practices” (C-323), which serves as a rebuttal to Ms. Holmes’s report; “Cree
Territory at the Time of First European Contact” (C-322); “Comments on Winona
Wheeler’s ‘Indigenous Oral Tradition Histories, An Academic
Predicament’” (C-321); and “Treaty Six: An Assessment of the Written and Oral
Documents” (C-320), which, I note,
replaces and updates an earlier report (C-342) (I did not consider those portions
of his reports that deal with witnesses not adopted by Ermineskin). Dr. von Gernet received a Ph.D. in anthropology from
McGill University in 1989, where he specialized in ethnohistory and archaeology
of Aboriginal peoples in North America. Since 1989, he has been at the
Department of Anthropology, University of Toronto, Mississauga campus, where he
is an Adjunct Professor. He has consulted for the Government of Canada on
various occasions on aboriginal issues; he has also testified as an expert witness,
including in Benoit v. Canada, [2002] F.C.J. No. 257. Dr. von
Gernet was qualified at trial as “an anthropologist and ethnohistorian specializing
in the use and analysis of archaeological evidence, written documentation and
oral traditions to reconstruct the history and past cultures of Aboriginal
peoples (including the Cree), as well as the history and past cultures of
Aboriginal peoples and European newcomers throughout Canada.”
ii. Lay Witnesses
For the plaintiffs
John Ermineskin
[24]
Mr. Ermineskin was born and raised on the Ermineskin reserve at Hobbema,
Alberta. He served as Chief of the Ermineskin Indian Band and Nation for two
terms, from 1990 to 1996. He also served as an elected councillor from 1988 to
1990 and 1998 to 2001.
Brian Wildcat
[25]
Mr. Wildcat is a member of the Ermineskin Indian Band and
Nation. Mr. Wildcat earned a Bachelor of Physical Education from the University
of Calgary in 1987. He received his M. Ed. from the University of Alberta in
1995. At the time of his testimony, on December 11, 2001, Mr. Wildcat had spent
the past two decades working as an administrator, primarily in the field of
education, with Ermineskin. As well, since 1994, he has been the director of
education for Miyo Wahakowtow Community Education Authority, which runs and
operates the Ermineskin schools.
B. Legal Framework
[26]
Counsel for Ermineskin submitted two volumes, containing 25 authorities
back in May 2000, at the outset of the opening statements. During the course of
the trial – and indeed after it closed in January 2005 – counsel for all
parties have continued to supply the Court with jurisprudence they believe is
helpful. I thank counsel for their Herculean efforts and excellent arguments.
However, I think it is unnecessary to refer to many of the cases insofar as
this particular section is concerned because the Supreme Court of Canada has,
in recent jurisprudence, lessened the work of trial judges somewhat by
summarizing and listing the relevant legal principles and tests for treaty
interpretation, oral history evidence, and aboriginal rights. Thus, I need not
review the long development of the case law, but instead I defer to the Supreme
Court’s wisdom on the current state of the law in these areas.
Treaty
Interpretation
[27]
Treaty 6 is part of a series of treaties the government made with
various aboriginal peoples often referred to as the numbered treaties, or
western numbered treaties. A contentious issue in the trial of this action was
what the Cree understood they were giving up when they took treaty. The meaning
and interpretation of Treaty 6 have been put in issue in this trial and I
intend to make certain, specific findings, based on the evidence tendered in
Court.
[28]
In R. v. Marshall, [1999] 3 S.C.R. 456, McLachlin J., as
she then was, set out the principles governing treaty interpretation. While
her opinion was in dissent, the overview she provided was based on a survey of
past jurisprudence. I note also that the list is not exhaustive. The
following are the principles as set out in paragraph 78 of R. v. Marshall:
1. Aboriginal treaties
constitute a unique type of agreement and attract special principles of
interpretation: R. v. Sundown, [1999] 1 S.C.R. 393, at para.
24; R. v. Badger, [1996] 1 S.C.R. 771, at para. 78; R. v. Sioui,
[1990] 1 S.C.R. 1025, at p. 1043; Simon v. The Queen, [1985] 2 S.C.R.
387, at p. 404. See also: J. (Sákéj) Youngblood Henderson, “Interpreting Sui
Generis Treaties” (1997), 36 Alta. L. Rev. 46; L. I. Rotman,
“Defining Parameters: Aboriginal Rights. Treaty Rights, and the Sparrow Justificatory
Test” (1997), 36 Alta. L. Rev. 149.
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1. Les traités conclus
avec les Autochtones constituent un type d’accord unique, qui demandent
l’application de principes d’interprétation spéciaux: R. c. Sundown,
[1999] 1 R.C.S. 393, au par. 24; R. c. Badger, [1996] 1
R.C.S. 771, au par. 78; R c. Sioui, [1990] 1 R.C.S. 1025,
à la p. 1043; Simon c. La Reine, [1985] 2 R.C.S. 387, à la p.
404. Voir également: J. (Sákéj) Youngblood Henderson, «Interpreting Sui
Generis Treaties» (1997), 36 alta. L. Rev. 46; L. I. Rotman, «
Defining Parameters: Aboriginal Rights, Treaty Rights, and the Sparrow Justificatory
Test» (1997), 36 Alta.L.. Rev. 149.
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2. Treaties should be
liberally construed and ambiguities or doubtful expressions should be
resolved in favour of the aboriginal signatories: Simon, supra,
at p. 402; Sioui, supra, at p. 1035; Badger, supra, at
para. 52.
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2. Les traités doivent
recevoir une interprétation libérale, et toute ambiguité doit profiter aux
signataires autochtones: Simon, précité, à la p. 402; Sioui, précité,
à la p. 1035; Badger, précité, au par. 52.
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3. The goal of treaty
interpretation is to choose from among the various possible interpretations
of common intention the one which best reconciles the interests of both
parties at the time the treaty was signed: Sioui, supra, at pp.
1068-69.
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3. L’interprétation des
traités a pour objet de choisir, parmi les interprétations possibles de
l’intention commune, celle qui concilie le mieux les intérêts des deux
parties à l’époque de la signature: Sioui, précité, aux pp. 1068 et
1069.
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4. In searching for the
common intention of the parties, the integrity and honour of the Crown is
presumed: Badger, supra, at para. 41.
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4. Dans la recherche de
l’intention commune des parties, l’intégrité et l’honneur de la Couronne sont
présumées: Badger, précité, au par. 41.
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5. In determining the
signatories’ respective understanding and intentions, the court must be
sensitive to the unique cultural and linguistic differences between the
parties: Badger, supra, at paras. 52-54; R. v. Horseman,
[1990] 1 S.C.R. 901, at p. 907.
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5. Dans l’appréciation de
la compréhension et de l’intention respectives des signataires, le tribunal
doit être attentif aux différences particulières d’ordre culturel et
linguistique qui existaient entre les parties: Badger, précité, aux
par. 52 à 54; R. c. Horseman, [1990]1 R.C.S. 901, à la p. 907.
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6. The words of the treaty
must be given the sense which they would naturally have held for the parties
at the time: Badger, supra, at paras. 53 et seq.; Nowegijick
v. The Queen, [1983] 1 S.C.R. 29, at p. 36.
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6. IL faut donner au texte
du traité le sens que lui auraient naturellement donné les parties à
l’époque: Badger, précité, aux par. 53 et suiv.; Nowegijick c. La
Reine, [1983] 1 R.C.S. 29, à la p. 36.
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7. A technical or
contractual interpretation of treaty wording should be avoided: Badger,
supra; Horseman, supra; Nowegijick, supra.
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7. Il faut éviter de
donner aux traités une interprétation formaliste ou inspirée du droit
contractuel: Badger, précité, Horseman, précité, et Nowegijick,
précité.
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8. While construing the
language generously, courts cannot alter the terms of the treaty by exceeding
what “is possible on the language” or realistic: Badger, supra, at
para. 76; Sioui, supra, at p. 1069; Horseman, supra,
at p. 908
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8. Tout en donnant une
interprétation généreuse du texte du traité, les tribunaux ne peuvent en
modifier les conditions en allant au-delà de ce qui est réaliste ou de ce que
« le language utilisé [...] permet»: Badger, précité, au par. 76; Sioui,
précité, à la p. 1069; Horseman, précité, à la p. 908.
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9. Treaty rights of
aboriginal peoples must not be interpreted in a static or rigid way. They
are not frozen at the date of signature. The interpreting court must update
treaty rights to provide for their modern exercise. This involves determining
what modern practices are reasonably incidental to the core treaty right in
its modern context: Sundown, supra, at para. 32; Simon,
supra, at p. 402.
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9. Les droits issus de
traités des peuples autochtones ne doivent pas être interprétés de façon
statique ou rigide. Ils ne sont pas figés à la date de la signature. Les
tribunaux doivent les interpréter de manière à permettre leur exercice dans
le monde moderne. Il faut pour cela déterminer quelles sont les pratiques
modernes qui sont raisonnablement accessoires à l’exercice du droit
fondamental issu de traité dans son contexte moderne: Sundown,
précité, au par. 32; Simon, précité, à la p. 402.
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[29]
Chief Justice McLachlin discussed the matter of extrinsic evidence of
the historical and cultural context of a particular treaty and concluded that
courts have allowed such evidence, even absent any ambiguity (see paragraph
81). The Chief Justice set out a two step approach to treaty interpretation:
The fact that both the words of the treaty and its historic and cultural
context must be considered suggests that it may be useful to approach the
interpretation of a treaty in two steps. First, the words of the treaty
clause at issue should be examined to determine their facial meaning, in so
far as this can be ascertained, noting any patent ambiguities and
misunderstandings that may have arisen from linguistic and cultural differences.
This exercise will lead to one or more possible interpretations of the
clause. As noted in Badger, supra, at para. 76, “the scope of treaty
rights will be determined by their wording”. The objective at this stage is
to develop a preliminary, but not necessarily determinative, framework for
the historical context inquiry, taking into account the need to avoid an
unduly restrictive interpretation and the need to give effect to the
principles of interpretation.
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Le fait qu’il faille examiner tant le texte du traité
que son contexte historique et culturel tend à indiquer qu’il peut être utile
d’interpréter un traité en deux étapes. Dans un premier temps, il convient
d’examiner le texte de la clause litigieuse pour en déterminer le sens
apparent, dans la mesure où il peut être dégagé, en soulignant toute
ambiguité et tout malentendu manifestes pouvant résulter de différences
linguistiques et culturelles. Cet examen conduira à une ou à plusieurs
interprétations possibles de la clause. Comme il a été souligné dans Badger,
précité, au par. 76, «la portée des droits issus de traités est fonction de
leur libellé». À cette étape, l’objectif est d’élaborer, pour l’analyse du
contexte historique, un cadre préliminaire – mais pas nécessairement
définitif – qui tienne compte d’un double impératif, celui d’éviter une
interprétation trop restrictive et celui de donner effet aux principes
d’interprétation.
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At the second step, the meaning or different meanings
which have arisen from the wording of the treaty right must be considered
against the treaty’s historical and cultural backdrop. A consideration of
the historical background may suggest latent ambiguities or alternative
interpretations not detected at first reading. Faced with a possible range
of interpretations, courts must rely on the historical context to determine
which comes closest to reflecting the parties’ common intention. This
determination requires choosing “from among the various possible
interpretations of the common intention the one which best reconciles” the
parties’ interests: Sioui, supra, at p. 1069. Finally, if the
court identifies a particular right which was intended to pass from
generation to generation, the historical context may assist the court in
determining the modern counterpart of that right: Simon, supra,
at pp. 402-3; Sundown, supra, at paras. 30 and 33.
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Dans un deuxième temps, le ou les sens dégagés du
texte du droit issu de traité doivent être examinés sur la toile de fond
historique et culturelle du traité. Il est possible que l’examen de
l’arrière-plan historique fasse ressortir des ambiuités latentes ou d’autres
interprétations que la première lecture n’a pas permis de déceler. Confronté
à une éventuelle gamme d’interprétations, le tribunal doit s’appuyer sur le
contexte historique pour déterminer laquelle traduit le mieux l’intention
commune des parties. Pour faire cette détermination, le tribunal doit choisir,
«parmi les interprétations de l’intention commune qui s’offrent à [lui],
celle qui concilie le mieux» les intérêts des parties: Sioui, précité,
à la p. 1069. Enfin, si le tribunal conclut à l’existence d’un droit
particulier qui était censé se transmettre de génération en géneration, le
contexte historique peut l’aider à déterminer l’équivalent moderne de ce
droit: Simon, précité, aux pp. 402 et 403; Sundown, précité,
aux par. 30 et 33.
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[30]
The third principle enumerated in Marshall is that of determining
the common intention of the parties at treaty time. I quote also from Justice
Binnie’s opinion in Marshall, at paragraph 14, on common intention:
“Generous”
rules of interpretation should not be confused with a vague sense of
after-the-fact largesse. The special rules are dictated by the special
difficulties of ascertaining what in fact was agreed to. The Indian parties
did not, for all practical purposes, have the opportunity to create their own
written record of the negotiations. Certain assumptions are therefore made
about the Crown’s approach to treaty making (honourable) which the Court acts
upon in its approach to treaty interpretation (flexible) as to the existence
of a treaty (Sioui, supra, at p. 1049), the completeness of any
written record (the use, e.g., of context and implied terms to make
honourable sense of the treaty arrangement: Simon v. The Queen,
[1985] 2 S.C.R. 387, and R. v. Sundown, [1999] 1 S.C.R. 393),
and the interpretation of treaty terms once found to exist (Badger).
The bottom line is the Court’s obligation is to “choose from among the
various possible interpretations of the common intention [at the time
the treaty was made] the one which best reconciles” the Mi’kmaq interests and
those of the British Crown (Sioui, per Lamer J., at p. 1069
(emphasis added)).
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Il
ne faut pas confondre les règles «généreuses» d’interprétation avec un vague
sentiment de largesse a posteriori. L’application de règles spéciales est
dictée par les difficultés particulières que pose la détermination de ce qui
a été convenu dans les faits. Les parties indiennes n’ont à toutes fins
pratiques pas eu la possiblilité de créer leurs propres compte-rendus écrits
des négociations. Certaines présomptions sont donc appliquées relativement
à l’approche suivie par la Couronne dans la conclusion des traités (conduite
honorable), présomptions dont notre Cour tient compte dans son approche en
matière d’interprétation des traités (souplesse) pour statuer sur l’existence
d’un traité (Sioui, précité, à la p. 1049), le caractière exhaustif de
tout écrit (par exemple l’utilisation du contexte et des conditions
implicites pour donner un sens honorable à ce qui a été convenu par traité: Simon
c. La Reine, [1985] 2 R.C.S. 387, et R. c. Sundown,
[1999]
1 R.C.S. 393), et l’interprétation des conditions du traité, une fois qu’il a
été conclu à leur existence (Badger). En bout de ligne, la Cour a
l’obligation «de choisir, parmi les interprétations de l’intention commune
[au moment de la conclusion du traité] qui s’offrent à [elle], celle qui concilie
le mieux» les intérêts des Mi’kmaq et ceux de la Couronne britannique (Sioui,
le juge Lamer, à la p. 1069 (je souligne)).
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[31]
A generous interpretation must be realistic and reflect the intentions
of both parties, not just the aboriginal side: see Lamer J., as he then was, in
R. v. Sioui, [1990] 1 S.C.R. 1025 at 1069.
[32]
Treaty interpretation also involves the principle of the honour of the
Crown. This principle derives from the Crown’s assertion of sovereignty in the
face of prior occupation by aboriginal people: see Taku River Tlingit First
Nation v. British Columbia (Project Assessment Director), [2004]
S.C.J. No. 69, 2004 S.C.C. 74 at paragraph 24. The honour of the Crown is a
“core precept” that finds its application in concrete practices: see Haida
Nation v. British Columbia (Minister of Forests), [2004] S.C.J. No.
70, 2004 S.C.C. 73 at paragraph 16. Moreover, the honour of the Crown is
always at stake in its dealings with aboriginal people: see R. v. Badger,
[1996] 1 S.C.R. 771 at paragraph 41.
[33]
Chief Justice McLachlin further elaborated on the honour of the Crown in
Mitchell, [2001] 1 S.C.R. 911, at paragraphs 17 and 19:
17. The
second factor, the nature of the conflict between the claimed right and the
relevant legislation, while more neutral, does not displace this conclusion.
The law in conflict with the alleged right is the Customs Act. It
applies both to personal goods and goods for trade.
*
* *
19. I
conclude that the Van der Peet factors of the impugned action, the
governmental action or legislation with which it conflicts, and the ancestral
practice relied on, all suggest the claim here is properly characterized as the
right to bring goods across the Canada-United States boundary at the St.
Lawrence River for purposes of trade.
[34]
Having
set out the relevant jurisprudence, I turn my sights now to a consideration of
the historical background relating to the making of Treaty 6.
C. Historical Background
i. Treaty-Making in Ontario and the West
Pre-Robinson Treaties
[35]
In his expert report, Professor Ray wrote,
Until the end of the War of 1812,
Upper Canada was highly vulnerable to attack by American forces. Consequently,
courting Native support remained a cornerstone of British policy until 1816.
For this reason, colonial governments adhered to the practice of following the
guidelines set out in the Royal Proclamation of 1763 for the surrender of
aboriginal title. These principles were:
1. Surrenders had to be voluntary.
2.
Aboriginal land could only be surrendered to the Crown.
3.
Negotiations had to take place in public at meetings specifically called for
the purpose of negotiating the surrenders of title.
(S-4, pp. 37-38)
[36]
The pre-Robinson treaties, negotiated with Ojibway groups in what was
then Upper Canada and Canada West, were essentially land purchases by the
government. Professor Ray testified,
And so in the early treaties, these
were simply what were called “simple purchases,”
in which natives signed the treaties. They received a one-time payment in cash
or goods for surrendering the land, and they simply moved a little bit further
north.
(transcript vol. 23,
p. 2943)
[37]
The pre-Robinson treaties are noteworthy in that they did not provide
for annuities, reserves, or livelihood rights (e.g., hunting and fishing
clauses). These treaties were driven by the government’s desire to acquire land
for colonization and agricultural development (transcript, vol 23, p. 2947).
[38]
After 1818, the British Crown initiated a change in policy whereby the
colonies would shoulder the burden of paying for aboriginal land. Colonial
governments, however, lacked the cash for these purchases. Sir Peregrine
Maitland, Lieutenant-Governor of Upper Canada, devised a solution. Instead of a
lump sum payment, the colonial government would pay the Indians – those who
signed the treaties and their descendants – annuities in perpetuity. The money
for the annuities would come from interest payments made by the land developers
and settlers who would subsequently purchase the land from the government.
[39]
As time went on, however, the land available for the Ojibway to move to
was rapidly diminishing. Thus, the practice began of setting aside reserves.
According to Professor Ray, missionaries and social reformers were strong
supporters of natives having their own land base, so as to secure their future
economic well-being.
Robinson
Treaties of 1850
[40]
While the pre-Robinson treaties were motivated by the desire for land
for agricultural and colonial development, the Robinson treaties of 1850 had
their genesis in the great mineral wealth found in the upper Great Lakes
region. By the 1840s, non-natives were developing copper mines along the shores
of Lake Huron and Lake Superior. The colony of Canada, formed by the union of
Upper and Lower Canada in 1840, began issuing mining licences, despite not
having secured any land surrenders from the aboriginal people in the area.
Professor Ray testified that the Ojibway, too, were issuing their own mining
licences (transcript vol. 23, p. 2949). Faced with the uncertainty of who had
the right to issue these licences, Métis and Ojibway seized the Quebec Mining
Company’s property at Mica Bay in 1849 in a bid to force the colonial
government to the negotiating table.
[41]
Further pressure for treaties was added by the Governor General of
Canada, James Bruce, 8th Earl of Elgin. He wrote to the colonial
secretary in London, complaining about Canada’s practice of issuing mining
licences for areas where no land surrenders had been obtained.
[42]
Eventually, the colonial government sent out surveyors and then
representatives to negotiate treaties. The results were the Robinson Superior
Treaty and the Robinson Huron Treaty, signed in September, 1850. In his expert
report, Professor Ray noted,
These two treaties encompassed more
territory than did all of the previous Upper Canadian cessions combined.
Significantly, the Robinson agreements included all of the major elements of
previous treaties – annuities, a distribution of gifts
at the conclusion of negotiations, and the establishment of reserves – and some very important new provisions. The most significant addition
was the written guarantee that the Aboriginal People could always hunt, trap,
and fish on undeveloped Crown lands, as was their custom from time immemorial.
[underlining
in the original]
(S-3, p. 40)
[43]
The Robinson Treaties also addressed the issue of mineral deposits that
might be found on native reserves:
And should the said Chiefs and their
respective tribes at any time desire to dispose of any such reservations, or of
any mineral or other valuable productions thereon, the same will be sold or
leased at their request by the Superintendent-General of Indian Affairs for the
time being, or other officer having authority so to do, for their sole benefit,
and to the best advantage.
(Morris, S-4, Robinson Huron Treaty, p. 305; see p.
303 for similar provision in Robinson Superior Treaty)
Numbered Treaties, 1 - 5
Pressures for Treaties
[44] The
economic potential of Rupert’s Land began
to attract the attention of developers following the conclusion of the earlier
treaties in the east. Development interest was further fuelled by reports
stemming from two scientific expeditions to the territory in the late 1850s.
Captain John Palliser, an experienced traveller and adventurer, led a
British-backed expedition. Henry Youle Hind, a professor in chemistry and
geology at the University of Toronto, headed a party sponsored by the
government of Canada West. Although the American west was somewhat developed,
not much was known about Rupert’s Land,
beyond the world of the fur traders and their native allies. The prairies were
still quite wild and sparsely populated. The expeditions reported on the
territory’s plants, animals, climate,
soil, terrain, minerals, and rivers. They observed the land for its
agricultural and development potential, and made note of possible
transportation routes. Palliser was interested in finding a practical route
through the Rockies to the Pacific Ocean. Early in the 19th century,
fur trader and explorer David Thompson had blazed a route through these
mountains; however, it was farther to the north, using the Athabasca Pass.
[45]
Their reports, according to Professor Ray, were key factors in the
decision by the International Financial Society (IFS) – a consortium of
European bankers and stock promoters – to buy control of the HBC in 1863. The
IFS reissued HBC stock in a large public offering; shares were snapped up by
those hoping to turn a quick profit from the HBC’s impending sale of Rupert’s
Land to either the Canadian or British governments. The latter, however, had no
intention of buying the land. Canada eventually bought the territory for £300
000 ($1.5 million Canadian), much less than expected by the IFS. Under the terms
of the 1870 Deed of Surrender, the HBC retained its trading posts and land
surrounding them, one-twentieth of lands in the Fertile Belt (described in the
Deed as the land stretching from the U.S. border in the south, the North
Saskatchewan River to the north, the Rocky Mountains to the west, and to the
east by Lake Winnipeg, Lake of the Woods, and their connecting waters), as well
as an indemnity against “exceptional taxes” on its trade, land, and employees.
The Order-in-Council, dated June 23, 1870, which effected the title transfer,
contained an article stating that the HBC was relieved of any claims by
aboriginal people for compensation for lands required for purposes of
settlement; that obligation was thus assumed by Canada (S-3, App. 3).
[46]
Native people in the territory were outraged over the sale and concerned
for their futures. The Red River Uprising by Métis in Manitoba in 1869-70 was
one repercussion. Among other things, it led to the Manitoba Act of
1870, and the birth of the province of Manitoba. The insurgency also acted as
an unsettling force among native people in the west (transcript, vol. 23, p.
2988).
[47]
Events happening south of the border also played a role in shaping
future treaty-making in the west. From 1860 to 1890, the U.S. government was
engaged in the Indian Wars on its western frontier. Hind addressed these events
in his report:
In Canada, much trouble, great
expense, and endless enquiry have been created by Indian claims, which even now
remain in part unsettled, and are a source of many incidental expenses to the
government, which might have been avoided if proper arrangements had been made
at the right season. In Rupert’s Land, where disaffected Indians
can influence the savage prairie tribes and arouse them to hostility, the
subject is one of great magnitude; open war with the Sioux, Assiniboines,
Plains Cree or Blackfeet, might render a vast area of prairie country
unapproachable for many years, and expose settlers to constant alarms and
depredations. The Indian wars undertaken by the United States government during
the last half century, have cost infinitely more than the most liberal
annuities or comprehensive efforts for the amelioration of the condition of the
aborigines would have done; and in relation to the northern prairie tribes, war
is always to be expected at a day’s notice.
(S-3, p. 44)
[48]
Hind’s report refers to the HBC’s role as a stabilizing force in
Rupert’s Land. Native relationships and alliances with the HBC, dating back
hundreds of years in some instances, had helped keep the peace; however,
growing unrest among Indians over the increasing numbers of settlers and
diminishing numbers of buffalo threatened that peace.
[49]
Furthermore, the Plains Cree were considered a military threat at that
time. On December 28, 1870, HBC trader Richard Hardisty wrote to William
Christie, Chief Factor of the HBC’s Saskatchewan district, airing his concerns,
With reference to your letter of 15th
November respecting the Indians, I will now give you my opinion as far as it
has come under my own observation, as regards their trade and their present
disaffection towards the Whites in the Saskatchewan District.
In the present unprotected state of
the Country, the trade with the plain Indians is a dead loss to the Concern. As
it had been customary before the introduction of Free Traders into the district
to advance these Indians with Supplies, it has been continued more or less up
to the present time; as long as the Indians had none but the Company to look to
for supplies, they were, in some measure Kept in check and would make some
attempts to pay up their Debts. At present, they demand supplies without any
intention of ever paying them and even go so far as to threaten the Shooting of
our animals and even further if refused.
For the last few years a great many
dissatisfied Halfbreeds have lived among the Indians and done all they could to
sow seeds of discord in the Indian minds, and again as the Buffalo have been
scarce for some years, many have been ready to catch at the idea that whites
coming into the Country have been the cause of the absence of Buffalo, and that
the Company are to blame for this change. If they could prevent the settlement
of whites in the Country they would gladly do it.
The plain Indians as far back as I
can recollect have always considered the whites and Halfbreeds as aggressors on
their lands when parties have gone to the plains to make provisions, but as it
has always been our policy to have staunch men from among them-selves as Guides
and Hunters, no very serious collusions has ever taken place, but latterly, the
aspect of things has changed con-considerably, and as I have mentioned above,
the disturbances in Red River, have sensibly affected the Indian mind in this part
of the Country, and again the small pox having carried away so many of their
friends for which they blame the whites there appears to be a careless
indifference as to the future not caring how soon troubles may commence.
In the month of October when the
Victoria freemen were out on the Plains, a party of Plain Crees came to their
Camp with the deliberate intention of pillaging them and even going further if
necessary, but then the Crees saw that the freemen armed them-selves and were
determined to resist them, they considered it useless to attempt anything. If
the Crees party had been larger it would likely have ended in bloodshed.
It is my opinion that, as soon as an
influx of whites comes to the Country and especially of miners and if there is
no protection speedily sent into the Country or law enforced, which will be
wanted as much for the Indians as the white man, and even more so, the Country
will be embroiled in Indian troubles which none of us may live to see the end
of.
(S-3, pp. 52-53)
[50]
On April 13, 1871, Christie received a visit from several Cree Chiefs,
including Sweet Grass, a prominent Cree Chief. Christie sent a letter, dated
that same day, to Lieutenant-Governor Adams Archibald at Fort Garry, Red River
Settlement. Messages from four Cree chiefs, translated into English, were
attached to the letter. Christie also included a memorandum containing a
warning. I quote the document in its entirety as it adds considerably to the
historical context of the growing pressures for treaties in the territory:
Edmonton House, 13th April, 1871.
On the 13th instant
(April) I had a visit from the Cree Chiefs, representing the Plain Crees from
this to Carlton, accompanied by a few followers.
The object of their visit was to
ascertain whether their lands had been sold or not, and what was the intention
of the Canadian Government in relation to them. They referred to the epidemic
that had raged throughout the past summer, and the subsequent starvation, the
poverty of their country, the visible diminution of the buffalo, their sole
support, ending by requesting certain presents at once, and that I
should lay their case before Her Majesty’s representative at Fort Garry. Many
stories have reached these Indians through various channels, ever since the
transfer of the North-West Territories to the Dominion of Canada, and they were
most anxious to hear from myself what had taken place.
I told them that the Canadian
Government had as yet made no application for their lands or hunting grounds,
and when anything was required of them, most likely Commissioners would
be sent beforehand to treat with them, and that until then they should remain
quiet and live at peace with all men. I further stated that Canada, in her
treaties with Indians, heretofore, had dealt most liberally with them, and that
they were now in settled houses and well off, and that I had no doubt in
settling with them the same liberal policy would be followed.
As I was aware that they had heard
many exaggerated stories about the troops in Red River, I took the opportunity
of telling them why troops had been sent; and if Her Majesty sent troops to the
Saskatchewan, it was as much for the protection of the red as the white man,
and that they would be for the maintenance of law and order.
They were highly satisfied with the
explanations offered, and said they would welcome civilization. As their
demands were complied with, and presents given to them, their immediate
followers, and for the young men left in camp, they departed well pleased for
the present time, with fair promises for the future. At a subsequent interview,
with the Chiefs alone, they requested that I should write down their words, or
messages to their Great Masters in Red River. I accordingly did so, and have
transmitted the messages as delivered. Copies of the proclamation issued,
prohibiting the traffic in spirituous liquors to Indians or others, and the use
of strychnine in the destruction of animal life, have been received, and due
publicity given to them. But without any power to enforce these laws, it is
almost useless to publish them here; and I take this opportunity of most
earnestly soliciting, on behalf of the Company’s servants, and
settlers in this district, that protection be afforded to life and property
here as soon as possible, and that Commissioners be sent to speak with the
Indians on behalf of the Canadian Government.
MEMORANDA:
Had I not complied with the demands
of the Indians – giving them some little presents –
and otherwise satisfied them, I have no doubt that they would have proceeded to
acts of violence, and once that had commenced, there would have been the
beginning of an Indian war, which it is difficult to say when it would have
ended.
The buffalo will soon be
exterminated, and when starvation comes, these Plain Indian tribes will fall
back on the Hudson’s Bay Forts and settlements for
relief and assistance. If not complied with, or no steps taken to make some
provision for them, they will most assuredly help themselves; and there being
no force or any law up there to protect the settlers, they must either quietly
submit to be pillaged, or lose their lives in the defence of their families and
property, against such fearful odds that will leave no hope for their side.
Gold may be discovered in paying
quantities, any day, on the eastern slope of the Rocky Mountains. We have, in
Montana, and in the mining settlements close to our boundary line, a large
mixed frontier population, who are now only waiting and watching to hear of
gold discoveries to rush into the Saskatchewan and, without any form of
Government or established laws up there, or force to protect whites or Indians,
it is very plain what will be the result.
I think that the establishment of
law and order in the Saskatchewan District, as early as possible, is of most
vital importance to the future of the country and the interest of Canada, and
also the making of some treaty or settlement with the Indians who inhabit the
Saskatchewan District.
W.J. CHRISTIE, Chief
Factor,
In charge of Saskatchewan District,
Hudson’s Bay Company.
________________
Messages from the Cree Chiefs of the
Plains, Saskatchewan, to His Excellency Governor Archibald, our Great Mother’s representative at Fort Garry, Red River Settlement.
1. The Chief Sweet Grass, The Chief
of the country.
GREAT FATHER, –
I shake hands with you, and bid you welcome. We heard that our lands were sold
and we did not like it; we don’t want to sell our lands; it is our
property, and no one has a right to sell them.
Our country is getting ruined of
fur-bearing animals, hitherto our sole support, and now we are poor and want
help – we want you to pity us. We want cattle, tools,
agricultural implements, and assistance in everything when we come to settle –
our country is no longer able to support us.
Make provision for us against years
of starvation. We have had great starvation the past winter, and the small-pox
took away many of our people, the old, young, and children.
We want you to stop the Americans
from coming to trade on our lands, and giving firewater, ammunition and arms to
our enemies the Blackfeet.
We made a peace this winter with the
Blackfeet. Our young men are foolish, it may not last long.
We invite you to come and see us and
to speak with us. If you can’t come yourself, send some one in
your place.
We send these words by our Master,
Mr. Christie, in whom we have every confidence. – That is all.
2. Ki-he-win, The Eagle.
GREAT FATHER, –
Let us be friendly. We never shed any white man’s blood, and
have always been friendly with the whites, and want workmen, carpenters and
farmers to assist us when we settle. I want all my brother, Sweet Grass, asks.
That is all.
3. The Little Hunter.
You, my brother, the Great Chief in
Red River, treat me as a brother, that is, as a Great Chief.
4. Kis-ki-on, or Short Tail.
My brother, that is coming close, I
look upon you, as if I saw you; I want you to pity me, and I want help to
cultivate the ground for myself and descendants. Come and see us.
(S-4, Morris, pp. 169-171)
[51]
In his book on the treaties, Morris included a letter penned by Indian
Commissioner Wemyss Simpson, dated November 3, 1871, to the Secretary of State.
In the extract, Simpson touches on the topic of the Indians’ knowledge of other
treaties, as well as emphasizing the importance of making a treaty in order to
preserve the peace. Simpson wrote:
I desire also to call the attention of His Excellency
to the state of affairs in the Indian country on the Saskatchewan. The
intelligence that Her Majesty is treating with the Chippewa Indians has already
reached the ears of the Cree and Blackfeet tribes. In the neighbourhood of Fort
Edmonton, on the Saskatchewan, there is a rapidly increasing population of
miners and other white people, and it is the opinion of Mr. W.J. Christie, the
officer in charge of the Saskatchewan District, that a treaty with the Indians
of that country, or at least an assurance during the coming year that a treaty
will shortly be made, is essential to the peace, if not the actual retention,
of the country.
(S-4, p. 168)
[52]
Lieutenant-Governor Morris shared similar concerns about the potential
military threat posed by the Cree. On August 2, 1873, he wrote the following to
Alexander Campbell, Deputy Minister of the Interior,
The numbers of the Indians west of
Fort Ellice (up to which point treaties have been made with the Indians) are
formidable. I have made enquiries of persons likely to know the numbers, such
as Bishop Granden, Père Andre, Honble Pascal Breland,
Honble J. McKay, and others. From these sources of information, I estimate the
number dwelling in the Plain country as follows: - Blackfeet, (a very warlike
tribe, well armed and supplied horses) 7000. Plain Crees (another warlike
tribe, at present at peace with their hereditary foes, the Blackfeet) 5000. Assiniboines
2000 - = 14000.
But these numbers are liable to be
largely increased at any time by members of these tribes, and others, such as
the Sioux in the U.S. who cross the line for hunting purposes.
The number of children in Indian
families is small, averaging probably three per family, so that in the event of
hostilities arising, I believe the Indians could place in the field 5000
mounted warriors, well armed.
The Americans are obliged to
maintain a large force in the adjoining State and Territories ... . By pursuing
a policy of conciliation, I believe the Dominion might secure the preservation
of peace by maintaining, in addition to the proposed Police force, a Military
Force of 500 men in the N.W. This I regard as absolute necessity. Already the
Indian Tribes have formed a very low estimate of the Military power of Canada,
and believe that about 3000 warriors could drive the Canadians from the
country. If there were no force here the results would be disastrous and at any
moment the scenes of Massacre, plunder, and violence enacted in Minnesota might
be repeated here.
(S-3, supporting documentation, volume
II, tab 54, pp. 3-6)
[53]
Campbell replied on August 6, 1873:
I myself was in favor or going on
with the treaty this year ... because I conceived it would be easier to deal
with the Indians now than hereafter, and also that dealing with them now would
be the means of preserving peace amongst them, but Sir John Macdonald and all
my colleagues were of the other opinion holding that there was no use making a
treaty so long in advance of our requiring the land.
(S-3, supporting documentation, volume
II, tab 55, pp. 2-3)
[54]
Morris continued to relay his concerns to Campbell, sending the
following on October 23, 1873:
I have inc. copy of a confidential
statement, given to me by Mr. Bell, of the Geological Survey, at my request. He
has just returned from the Territories, and reports to me that a very bad
feeling exists among the Indians, as also that the Half-breeds at Lake Qu’Appelle,
claimed that there is no visible government there, and no policy, and that they
did not wish strangers to enter the country. I transmitted to the Government,
on the 5th June last, a letter from the Half-Breeds there, presented
by one Fisher, and my reply. Fisher then stated that they did not want any
strangers to come into the country; but I told him that the country was open to
all, but that they would be dealt with justly. I am led to fear, from various
sources of information, some movement there which may give trouble, and think
that the Government should reconsider their decision as to making a Treaty with
the Indians in the region I indicated to them in my dispatch of July 26th.
(S-3, supporting documentation, volume
II, tab 55, pp. 1-2)
[55]
Morris had the support of the Territorial government, whose members
resolved on September 8, 1873,
That the Council of the North-West
are of opinion, that in view of the rapid increase of Settlement in the
North-West Territories, and the present disturbed condition of the Indians and
their anxiety as to the future, it is imperatively necessary that a Treaty
should be concluded with the bands of Indians living between the Western
Boundary of that portion of the Territory in which the Indian Title has already
been extinguished, and Fort Carlton or thereabouts.
The Council are of opinion that to
defer the negotiation of a Treaty of this nature beyond the earliest time
possible in the year 1874 would be attended with unfortunate results.
(S-3, supporting documentation, volume
II, tab 56, p. 1000)
[56]
The Canadian Government, while it wanted to eventually open the West for
settlement, was in no great hurry to do so. As Professor Ray termed it, Canada
had a “go slow policy” in regard to development (transcript vol. 23, p. 3016).
Development costs would be substantial. Land surveys, roads and railway construction,
and other necessary infrastructure, not to mention treaties and their
associated costs, were expensive and the Canadian government had limited
financial resources. Thus, such development, and the treaties that would
precede it, would only occur once sufficient pressure could justify it. And
this is demonstrated in the slow, but steady, march west of the numbered
treaties.
Treaty
Negotiations, 1-5
[57]
In 1880, Morris published The Treaties of Canada with the Indians of
Manitoba and the North-West Territories; it included accounts of
negotiations, official government reports, and the texts of treaties and
adhesions. His preface reads as follows,
The question of the relations of the
Dominion of Canada to the Indians of the North-West, is one of great practical
importance. The work, of obtaining their good will, by entering into treaties
of alliance with them, has now been completed in all the region from Lake Superior
to the foot of the Rocky Mountains. As an aid to the other and equally
important duty – that of carrying out, in their
integrity, the obligations of these treaties, and devising means whereby the
Indian population of the Fertile Belt can be rescued from the hard fate which
otherwise awaits them, owing to the speedy destruction of the buffalo, hitherto
the principal food supply of the Plain Indians, and that they may be induced to
become, by the adoption of agricultural and pastoral pursuits, a self-supporting
community – I have prepared this collection of the treaties made
with them, and of information, relating to the negotiations, on which these
treaties were based, in the hope that I may thereby contribute to the
completion of a work, in which I had considerable part, that, of , by treaties,
securing the good will of the Indian tribes, and by the helpful hand of the
Dominion, opening up to them, a future of promise, based upon the foundations
of instruction and the many other advantages of civilized life.
(S-4, preface)
[58]
Morris served as a government Commissioner for Treaties 3, 4, 5, and 6;
he also dealt with the revisions to Treaties 1 and 2 – the “outside promises”
issue. He was also Lieutenant-Governor of Manitoba and the North-West
Territories.
[59]
The Indians were tough negotiators; their very future was at stake. By
the early 1870s, the winds of change were blowing through the west. The vast
herds of buffalo, so vital to the culture and survival of the Plains Indians,
were greatly reduced in size. The collapse of the buffalo hunting economy was
no longer simply a dreaded possibility; it was imminent. Settlers and
surveyors, the latter busy preparing the way for telegraph and railway, were
arriving in increasing numbers, thanks, in part, to the Dawson Road. This
route, which took three years to build, was something of an engineering marvel
of its time, as well as a testimony to sheer hard, back-breaking labour. It was
built through the forest, muskeg, and Precambrian rock of what is now northern
Ontario. The Dawson Road began at Prince Arthur’s landing on the eastern end of
Lake Superior and ended at Fort Garry. Until the railway was built, this was an
important thoroughfare for those travelling to the west.
[60]
Indians in the North-West Territories were aware of these changes and
were anxious to secure a place for themselves in the new economic order. As we
shall see further on in these Reasons, Indian negotiators placed great emphasis
on economic issues and tangible goods during treaty talks.
[61]
Treaties 1 and 2 are essentially identical. The former was concluded at
Stone Fort (Lower Fort Garry), while the latter was signed at Manitoba Post, an
HBC fort at the north end of Lake Manitoba. The Indians of the area had applied
in the autumn of 1870 to Lieutenant-Governor Adams Archibald for a treaty. By
the following August, both treaties were concluded. Morris noted that the
Indians were,
full of uneasiness, owing to the
influx of population, denied the validity of the Selkirk Treaty, and had in
some instances obstructed settlers and surveyors.
(S-4, pp. 25-26)
[62]
These treaties provided for, amongst other things, relinquishment of
aboriginal title, provision of reserves, maintenance of schools on reserves,
hunting and fishing on unoccupied land, prohibition of the sale of liquor, and
annuities.
[63]
A controversy arose later over these treaties, having to do with what
were called the “outside promises.” A memorandum, signed by the treaty commissioners
and containing their understanding of the treaties’ terms, was attached to
Treaty 1. However, certain verbal promises (also found in the memorandum)
failed to be included in the written text of the treaties, and thus were not
implemented. This caused great consternation and dissatisfaction amongst the
affected Indians. Eventually, the Privy Council agreed to consider the
memorandum as part of the treaties and agreed to carry out its terms.
Additional payments of money and clothing were also made. Morris and the Indian
Commissioner, Lieutenant-Colonel Provencher, were sent out in October 1875 to
meet with the treaty bands and secure their consent to the revisions. Morris
reflected upon this episode,
The experience derived from this
misunderstanding, proved however, of benefit with regard to all the treaties,
subsequent to Treaties One and Two, as the greatest care was thereafter taken
to have all promises fully set out in the treaties, and to have the treaties
thoroughly and fully explained to the Indians, and understood by them to
contain the whole of the agreement between them and the Crown.
[Underling is mine]
(S-4, p. 128)
[64]
Treaty 3, the North-West Angle Treaty, covered the lake and forest
country from the watershed of Lake Superior to the north-west angle of the Lake
of the Woods, and from the U.S. border to the height of land from which the
streams drain into Hudson’s Bay. Morris described this treaty as necessary,
in order to make the route known as “the
Dawson route,” ... which was then being opened up,
“secure for the passage of emigrants and of the people of
the Dominion generally,” and also to enable the Government
to throw open for settlement any portion of the land which might be susceptible
of improvement and profitable occupation.
(S-4, p. 44)
[65]
The government commissioners first met with the Indians concerned at
Fort Francis in July, 1871. They explained the government’s intention of
obtaining a surrender of the Indians’ territorial rights; in return, the Indians
would receive reserves and annuities. The Indians contended that they were owed
compensation for the raw materials used to construct the Dawson Road, as well
as for rights of access and land use. The commissioners agreed to pay a small
sum of money, as well as some provisions and clothing to settle the matter. No
treaty, however, was concluded and the parties agreed to meet the next summer.
Negotiations were further postponed until the fall of 1873.
[66]
Meanwhile, Morris was appointed treaty commissioner in 1873. He and the
other commissioners met with the Indians at the north-west angle of the Lake of
the Woods in September, 1873. According to Morris, negotiations were
“protracted and difficult” (S-4, p. 45).
[67]
In his chapter on Treaty 3, Morris included an extract of a report
published in the newspaper the Manitoban, dated October 18, 1873. The
report contains speeches from the negotiations, taken down by a short-hand
reporter. Morris described the report as presenting “an accurate view of the
course of the discussions, and a vivid representation of the habits of Indian
thought” (S-4, p. 52). The Manitoban extract reports the following
speech, by one of the chiefs on the third day of the negotiations, when the
topic of mineral resources was raised,
CHIEF – “My
terms I am going to lay down before you; the decision of our chiefs; ever since
we came to a decision you push it back. The sound of the rustling of the
gold is under my feet where I stand; we have a rich country; it is the
Great Spirit who gave us this; where we stand upon is the Indians’
property, and belongs to them. If you grant us our requests you will not go
back without making the treaty.”
(S-4, p. 62)
[68]
Further along in the newspaper report appears this exchange between
Morris and a chief:
CHIEF – “Should
we discover any metal that was of use, could we have the privilege of putting
our own price on it?”
GOVERNOR – “If any important minerals are
discovered on any of their reserves the minerals will be sold for their benefit
with their consent, but not on any other land that discoveries may take place
upon; as regards other discoveries, of course, the Indian is like any other
man. He can sell his information if he can find a purchaser.”
[underlining is mine]
(S-4, p. 70)
[69]
Morris also included this latter discussion in his official report to
the government, dated October 14, 1873 (S-4, p. 50).
[70]
Pondering the significance of Treaty 3, Morris wrote,
This treaty was one of great
importance, as it not only tranquilized the large Indian population affected by
it, but eventually shaped the terms of all the treaties, four, five, six and
seven, which have since been made with the Indians of the North-West Territories
– who speedily became apprised of the concessions which had
been granted to the Ojibbeway nation.
(S-4, p. 45)
[71]
The next agreement, Treaty 4, is also known as the Qu’Appelle Treaty
because it was concluded at Qu’Appelle Lakes in what is now the province of
Saskatchewan. It was signed in September 1874. Once again, Morris acted for the
government as a treaty commissioner, along with the Hon. David Laird, Minister
of the Interior, and W. J. Christie, now retired from working for the HBC.
Morris described the negotiations,
The Commissioners encountered great
difficulties, arising, from the excessive demands of the Indians, and from the
jealousies, existing between the two Nations, Crees and Chippawas, but by
perseverance, firmness and tact, they succeeded in overcoming the obstacles,
they had to encounter, and eventually effected a treaty, whereby the Indian
title was extinguished in a tract of country, embracing 75,000 square miles of
territory. After long and animated discussions the Indians, asked to be granted
the same terms as were accorded to the Indians of Treaty Number Three, at the
North-West Angle, hereinbefore mentioned. The Commissioners assented to their
request and the treaty was signed accordingly.
(S-4, pp. 78-79)
[72]
Treaty 5, the Lake Winnipeg Treaty, was signed in September, 1875 with
the Saulteaux and Swampy Cree. Its terms were virtually identical to those of
Treaties 3 and 4. Morris and James McKay acted as treaty commissioners. They
travelled this immense lake using the HBC’s new steamship, the Colville. Morris
noted the impetus for this treaty:
The necessity for it had become urgent. The lake is a
large and valuable sheet of water, being some three hundred miles long. The Red
River flows into it and the Nelson River flows from it into Hudson’s Bay. Steam
navigation had been successfully established by the Hudson’s Bay Company on
Lake Winnipeg ... .
(S-4, p. 143)
[73]
Morris also remarked upon the potential value of the land,
The east coast is much inferior to
the west coast, as far as I could learn, but appeared to be thickly wooded, and
it is understood that indications of minerals have been found in several
places.
(S-4, p. 150)
ii. The Making of Treaty 6
[74]
Treaty 6 was signed in August and September 1876 at Forts Carlton and
Pitt, respectively. James McKay and W.J. Christie acted as treaty
commissioners, along with Morris. Christie, as previously noted, had been Chief
Factor of the HBC in the Saskatchewan District. He was of mixed blood and spoke
Cree. He had also acted as a treaty commissioner at the Qu’Appelle Lakes
Treaty. Over the course of his life, both in his personal and working spheres,
he had extensive contact and interactions with aboriginal people. James McKay
was a Métis from Red River and was Minister of Agriculture in the Manitoba
government.
[75]
The Treaty Commission was assisted by Dr. A.G. Jackes, the commission
secretary. He recorded a daily narrative of the negotiations. Morris considered
it an “accurate account of the speeches of the Commissioners and Indians” (S-4,
p. 180; see also p. 195).
[76]
Thus, contemporary documentary accounts of Treaty 6 consist of Morris’s
report and the Jackes narrative, contained within the Morris text. Another
source is the book Buffalo Days and Nights, the autobiography of Peter
Erasmus, as told by Erasmus to Henry Thompson. Erasmus lived from 1833 to 1931.
He acted as interpreter for the Cree at Treaty 6, having been hired by Cree
chiefs Mista-wa-sis and Ah-tuk-a-kup. Thompson interviewed Erasmus twice, first
in 1920 and then later in 1928, to clear up uncertainties in the manuscript
generated from the 1920 interview. The manuscript became the book, Buffalo
Days and Nights, told in the first person; in that sense, it is an oral
history, albeit frozen in documentary form. The introduction to the book,
penned by historian Irene Spry, notes that some changes were made to the book,
but with Thompson’s approval. Reference notes were inserted to explain substantial
alterations; asterisks denote minor changes (C-7, introduction, p. xii).
[77]
The Erasmus account is not perfect. Some passages are nearly identical
to Morris and Jackes, suggesting some reliance by Erasmus on them to refresh
his memory. Yet, despite these shortcomings and perhaps a tendency
towards self-aggrandizement, Erasmus provides a valuable eyewitness
recollection of what occurred during the Fort Carlton negotiations, and
especially the Cree council, which he attended.
[78]
The Reverend John McDougall, a Methodist minister, was present at the
Fort Pitt negotiations, and signed the treaty as a witness. Rev. McDougall was
also present at the Treaty 6 adhesion at Blackfoot Crossing. He is recorded on
the adhesion document as having explained it to the Indians; he also signed it
as a witness. Rev. McDougall recorded his account of the Fort Pitt talks in his
book Opening the Great West (C-8).
Documentary
/ Eyewitness Accounts
1. Prelude
to a Treaty
[79]
As early as 1871, Cree chiefs, of what was to become Treaty 6 territory,
had petitioned the government for a treaty (as seen with Christie’s letter of
April 13, 1871; S-4, pp. 169-171). The government, however, was in no hurry to
obtain title surrenders for land until it was needed for settlement. And so,
the Indians waited while to the east the numbered treaties slowly began to
cover territory closer and closer to them.
[80]
After Treaty 5 was concluded in 1875, the government finally turned its
gaze towards Treaty 6 territory. In order to pave the way for negotiations,
Morris engaged Rev. George McDougall to travel about the territory explaining
the government’s intentions. McDougall, father of Rev. John McDougall, was also
a Methodist minister. The McDougalls had emigrated from Ontario to the west in
1862. They first established a mission at Victoria, near Edmonton, in 1862, and
later one at Morley, in 1873. The elder McDougall perished in January 1876,
after losing his way on the prairie one night.
[81]
According to Morris, Rev. McDougall carried a letter from the
Lieutenant-Governor, stating that commissioners would meet with the Indians the
next summer for treaty talks (S-4, p. 173). Rev. McDougall reported to Morris
on his travels and the councils he attended. The report, dated October 23,
1875, is reproduced in the Morris text. Rev. McDougall noted that he was
informed by Indians near Carlton that the Crees and Plain Assiniboines were
united on two points:
1st. That they would not
receive any presents from Government until a definite time for treaty was
stated. 2nd. Though they deplored the necessity of resorting to
extreme measures, yet they were unanimous in their determination to oppose the
running of lines, or the making of roads through their country, until a
settlement between the Government and them had been effected.
(S-4, p. 173)
[82]
Further along, Rev. McDougall reported on the topics discussed by the
Indians and which they planned to put to the commissioners at the treaty talks.
He set it out using their words, but translated into English:
“Tell
the Great Chief that we are glad the traders are prohibited bringing spirits
into our country; when we see it we want to drink it, and it destroys us; when
we do not see it we do not think about it. Ask for us a strong law, prohibiting
the free use of poison (strychnine). It has almost exterminated the animals of
our country, and often makes us bad friends with our white neighbors. We
further request, that a law be made, equally applicable to the Half-breed and
Indian, punishing all parties who set fire to our forest or plain. Not many
years ago we attribute a prairie fire to the malevolence of an enemy, now every
one is reckless in the use of fire, and every year large numbers of valuable
animals and birds perish in consequence. We would further ask that our
chiefships be established by the Government. Of late years almost every trader
sets up his own Chief and the result is we are broken into little parties, and
our best men are no longer respected.”
(S-4, pp. 174-175)
2. Negotiations at Fort Carlton
[83]
Morris, McKay, and their party arrived at Fort Carlton on August 15,
1876. The previous day, they encountered a Cree messenger at Dumont’s Crossing
at the South Saskatchewan River. The messenger gave Morris a “letter of welcome
in the name of their nation” (S-4, p. 181). According to Morris, this was done
because some Saulteaux from Quill Lake, in Treaty 4 territory, had suggested
uniting with the Cree to prevent Morris from crossing the river and entering
“the Indian country.” The Crees rejected this offer and welcomed Morris (S-4,
p. 181).
[84]
On the morning of the 15th, Morris met up with fellow
commissioner James McKay at Duck Lake, about 12 miles from Fort Carlton. Chief
Beardy of the Willow Crees also met with Morris at this point. He wished to
make the treaty at Duck Lake. Morris went to Beardy’s encampment, but declined
to change the venue from Fort Carlton. Instead, the party carried on to Fort
Carlton, where they took rooms at the HBC fort, which was under the command of
Chief Factor Lawrence Clarke. McKay eschewed these rooms and camped about four
miles away. Morris remarked on this arrangement in his report:
I have to acknowledge the benefit I
derived from the services of the Hon. James McKay, camping as he did near the
Indian encampment. He had the opportunity of meeting with them constantly, and
learning their views which his familiarity with the Indian dialects enabled him
to do.
(S-4, p. 195)
[85]
In the evening, Cree chiefs Mista-wa-sis and Ah-tuk-a-kup paid a visit
to Morris. Erasmus was present at this meeting and described it thus:
The Governor [Morris] advanced and
shook hands with the chiefs, saying, “I have come to meet you Cree chiefs
to make a treaty with you for the surrender of your rights of the land to the
government ... .”
(C-7, pp. 237-238)
[86]
A discussion about the interpreters followed. Morris said it was
unnecessary for the Indians to have hired their own interpreter as the
government had brought two interpreters, Peter Ballenden and the Reverend John
McKay, brother of Commissioner McKay. Erasmus reported Mista-wa-sis insisted
that the Indian side would use its own interpreter and Morris acceded (C-7, p.
238).
[87]
The next day, the Crees requested a postponement so that they could use
the day to confer further amongst themselves. Morris agreed. On the 17th,
they sent word to Morris that they would be ready to begin formal talks the
following day.
[88]
On the morning of August 18th, a troop of North-West Mounted
Police escorted the treaty commissioners from the fort to the Indian
encampment, where the treaty talks would take place. This is how Morris
described the scene in his report,
On my arrival I found that the
ground had been most judiciously chosen, being elevated, with abundance of
trees, hay marshes and small lakes. The spot which the Indians had left for my
council tent overlooked the whole.
The view was very beautiful: the
hills and the trees in the distance, and in the foreground, the meadow land
being dotted with clumps of wood, with the Indian tents clustered here and
there to the number of two hundred.
(S-4, p. 182)
[89]
The Union Jack was raised and the Crees began to assemble in front of
the council tent. A calumet, or pipe stem, ceremony was performed. After
the ceremony, Morris opened the proceedings with an address to the assembled
Indians. His report contains a brief synopsis of the speech; the Jackes
narrative records what appears to be the text of the speech (S-4, pp. 183;
199-202).
[90]
Erasmus’s account of this first day focusses more on his own role. He
recorded the beginning of Morris’s speech, with the Rev. McKay interpreting,
as,
“You
nations of the Crees,” he began, “I
am here on a most important mission as representing Her Majesty the Queen Mother
to form a treaty with you in her name, that you surrender your rights in these
northern territories to the government.”
(C-7, p. 242)
[91]
Erasmus offered this opinion on the capabilities of the commission’s
interpreters:
I knew that Peter Ballenden had not
the education or practice to interpret, and his voice had no carrying quality
to make himself heard before all this large assembly. The Rev. McKay had
learned his Cree among the Swampy and Saulteaux. While there was a similarity
in some words, and I had learned both languages, the Prairie Crees would not
understand his Cree. Further, the Prairie Crees looked down on the Swampy and
Saulteaux as an inferior race. They would be intolerant at being addressed in
Swampy or Saulteaux words. I knew that McKay was not sufficiently versed in the
Prairie Cree to confine his interpretations to their own language.
(C-7, p. 241)
[92]
Eventually, it was settled that Erasmus would translate Morris’s speech.
Erasmus noted,
The Governor spoke for an hour or so
explaining the purpose of the treaty and its objectives, and describing in some
detail the terms. He especially emphasized the money each person would get.
(C-7, p. 243)
[93]
The Crees asked for an adjournment after the speech so they could meet
in council. And so ended the first day of treaty negotiations.
[94]
That evening, according to Erasmus, he was summoned to Morris’s rooms.
Morris complimented him on his translating labours that day and formally hired
him for the balance of the treaty talks (C-7, pp. 243-244).
[95]
The second day of negotiations is recounted in the greatest detail in
the Jackes narrative. Upon assembly, the Cree chiefs were presented to Morris.
A messenger from Chief Beardy’s Duck Lake Indians arrived at that point and
asked to be told the treaty’s terms. Morris refused, but advised him to stay to
hear the day’s proceedings (S-4, pp. 203-204)
[96]
Morris began the talks by speaking of his concern for the Crees’ future
and the impact of the growing scarcity of the large game on which they
depended. He told them of Indians to the east who had successfully taken up
agriculture and permanent homes, but added this,
Understand me, I do not want to
interfere with your hunting and fishing. I want you to pursue it through the
country, as you have heretofore done; but I would like your children to be able
to find food for themselves and their children that come after them. Sometimes
when you go to hunt you can leave your wives and children at home to take care
of your gardens.
(S-4, p. 204)
[97]
Morris moved on to the topic of reserves and the reality of non-native
settlers moving into the country in the near future:
I am glad to know that some of you
have already begun to build and to plant; and I would like on behalf of the
Queen to give each band that desires it a home of their own; I want to act in
this matter while it is time. The country is wide and you are scattered, other
people will come in. Now unless the places where you would like to live are
secured soon there might be difficulty. The white man might come and settle on
the very place where you would like to be.
(S-4, p. 204)
[98]
Morris then explained how the size and location of reserves would be
determined and the land surrender process. Secretary Jackes recorded Morris’s
comments as follows:
“There is one thing I would say about the reserves. The
land I name is much more than you will ever be able to farm, and it may be that
you would like to do as your brothers where I came from did.
They, when they found they had too much land, asked the
Queen to sell it for them; they kept as much as they could want, and the price
for which the remainder was sold was put away to increase for them, and many
bands now have a yearly income from the land.
But understand me, once the reserve is set aside, it
could not be sold unless with the consent of the Queen and the Indians; as long
as the Indians wish, it will stand there for their good; no one can take their
homes.”
(S-4, p. 205)
[99]
Morris went on to discuss maintenance of schools on reserves,
prohibition of the sale or use of liquor on reserves, and the provision of
various agricultural tools, equipment, livestock, and seed. He spoke of Chiefs
and Councillors and the respect they deserved. Morris also stated that the
Queen expected her laws to be obeyed by everyone, native and non-native (S-4,
p. 206). He also spoke of the 1873 Cypress Hills massacre, where a group of
American wolfers killed some Assiniboines encamped in the hills. Morris related
this to the presence of the NWMP and the security and protection they would
provide. Morris indicated that chiefs and councillors would be given uniforms,
medals, and flags, in recognition of their positions (S-4, p. 207).
[100]
Religious services were held on Sunday. Jackes reported that, at the
request of the Indians, Rev. McKay held a service with them in the afternoon,
“preaching in their own tongue to a congregation of over two hundred adult
Crees” (S-4, p. 209). Further negotiations were postponed until Tuesday, August
22nd, to allow the Crees to consult amongst themselves.
[101]
The Crees held their council on Monday. Erasmus was the only non-native
present. His account of it in Buffalo Days and Nights constitutes the
sole evidence tendered at trial about this event (C-7, pp. 245-251). Erasmus
explained the purpose of his attendance:
I was asked to attend the council
with them and was personally escorted to the meeting by Mista-wa-sis and his
ally Star Blanket. They said that I might be called upon to explain the talks,
in case of any misunderstanding of my interpretations of the treaty terms. “There
are many among us who are trying to confuse and mislead the people; that is why
I thought it best to give them lots of time for their bad work. Today they will
have to come out in the open and will be forced to show their intentions,”
said Big Child.
The chiefs were in agreement that it
was better to bring about an understanding among their own people before
meeting with the Commissioner.
(C-7, pp. 245-246)
[102]
According to Erasmus, Poundmaker and the Badger led the faction opposed
to taking treaty. As the day wore on, Erasmus despaired of any hope of reaching
an agreement. Finally, Mista-wa-sis arose and addressed the council. After
lamenting the destruction of the buffalo and the passing of their old way of
life, Mista-wa-sis said,
“I
speak directly to Poundmaker and The Badger and those others who object to
signing this treaty. Have you anything better to offer our people? I ask,
again, can you suggest anything that will bring these things back for tomorrow
and all the tomorrows that face our people?
“I
for one think that the Great White Queen Mother has offered us a way of life
when the buffalo are no more. Gone they will be before many snows have come to
cover our heads or graves if such should be.”
(C-7, p. 247)
[103]
Mista-wa-sis spoke of the hardships faced by the Blackfoot, especially
those stemming from incursions by American traders (“Big Knives” or “Long
Knives”) into their territory:
“These
traders, who were not of our land, with smooth talk and cheap goods persuaded
the southern tribes it would be a good thing to have a place to trade products
of the hunt, the hides and tanned goods. The traders came and built strong
forts, and with their long rifles that can kill at twice the distance of our
own and the short guns that can spout death six times quicker than you can tell
about it, they had the people at their mercy. The Blackfoot soon found out the
traders had nothing but whisky to exchange for their skins. Oh, yes! They were
generous at first with their rotten whisky, but not for long. The traders
demanded pay and got Blackfoot horses, buffalo robes, and all other things they
had to offer.
“Those
traders laughed at them for fools, and so they were, to sell their heritage for
ruin and debauchery. Some of the bravest of the Blackfoot tried to get revenge
for the losses but they were shot down like dogs and dragged to the open plains
on horses to rot or be eaten by wolves.”
(C-7, pp. 247-248)
[104]
He spoke of the NWMP, or Red Coats, sent forth to expel the whisky
traders and protect the Blackfoot. He advised the assembly to heed the
experiences of Indians south of the border, where the Indian Wars were causing
great loss of life and, ultimately, land (C-7, p. 249).
[105]
After Mista-wa-sis sat down, Ah-tuk-a-kup stood and spoke of the ravages
of war with the Blackfoot and the devastation wrought by small pox. He agreed
with Mista-wa-sis about the impending destruction of the buffalo and spoke of
the necessity of taking up agriculture. Ah-tuk-a-kup finished his speech with
these words,
“For
my part, I think that the Queen Mother has offered us a new way and I have
faith in the things my brother Mista-wa-sis has told you. The mother earth has
always given us plenty with the grass that fed the buffalo. Surely we Indians
can learn the ways of living that made the white man strong and able to
vanquish all the great tribes of the southern nations. The white men never had
the buffalo but I am told they have cattle in the thousands, that are covering
the prairie for miles and will replace the buffalo in the Long Knives’
country and may even spread over our lands. The white men number their lodges
in the thousands, not like us who can only count our teepees by tens. I will
accept the Queen’s hand for my people. I have spoken.”
(C-7, p. 250)
[106]
Erasmus noted that the councillors of these two chiefs indicated, by
gestures, their acceptance of the chiefs’ position. He further noted that the
majority accepted their views as well. Mista-wa-sis ended the meeting by
assuring everyone that they would have the chance to ask questions and that
their interpreter would mark down the things they thought they should have
under the treaty (C-7, p. 250).
[107]
The third day of treaty negotiations took place on Tuesday, August 22nd.
Morris opened the talks by asking to hear the chiefs’ views (S-4, p. 184).
Poundmaker responded. He asked for government assistance once the Indians began
to settle on reserves. Morris replied that the government could not feed the
Indians, but only assist them when they settled (S-4, pp. 184-185). In his
report, Morris remarked that the Badger, Soh-ah-moos (Sak-ah-moos in Jackes and
Sakamoos in Erasmus), and several others reiterated Poundmaker’s request (S-4,
pp. 184-185).
[108]
Morris responded by telling them that the government sent money to
Indians whose crops had been destroyed by grasshoppers, even though such aid
was not promised in their treaty (S-4, p. 211).
[109]
Commissioner McKay addressed the assembly next, speaking in Cree. The
Jackes narrative has Morris inviting McKay to speak (S-4, p. 211). Jackes
reported McKay’s speech as follows:
“My
friends, I wish to make you a clear explanation of some things that it appears
you do not understand. It has been said to you by your Governor that we did not
come here to barter or trade with you for the land. You have made demands on
the Governor, and from the way you have put them a white man would understand
that you asked for daily provisions, also supplies for your hunt and for your
pleasure excursions. Now my reasons for explaining to you are based on my past
experience of treaties, for no sooner will the Governor and Commissioners turn
their backs on you than some of you will say this thing and that thing was
promised and the promise not fulfilled; that you cannot rely on the Queen’s
representative, that even he will not tell the truth, whilst among yourselves
are the falsifiers. Now before we rise from here it must be understood, and it
must be in writing, all that you are promised by the Governor and
Commissioners, and I hope you will not leave until you have thoroughly
understood the meaning of every word that comes from us. We have not come here
to deceive you, we have not come here to rob you, we have not come here to take
away anything that belongs to you, and we are not here to make peace as we
would to hostile Indians, because you are the children of the Great Queen as we
are, and there has never been anything but peace between us. What you have not
understood clearly we will do our utmost to make perfectly plain to you.”
(S-4, pp. 211-212)
[110]
In the Jackes narrative, Morris spoke immediately after McKay,
recounting a further story about aid given to the Red River people after a
grasshopper plague. He noted that in that instance, there was no treaty; the
people were simply the Queen’s subjects. Jackes then recorded the Badger
responding to McKay’s remarks (S-4, pp. 212-213). Morris’s account is similar
to Jackes, although much less detailed.
[111]
Erasmus painted a rather different picture. He described McKay’s tone as
arrogant and said he admonished the Cree for their excessive demands; he also
noted that there was a murmur of disapproval from the assembled Indians (C-7,
p. 251). According to Erasmus, after McKay sat down, the Badger leapt to his
feet and scolded McKay,
“I
did not say that I wanted to be fed every day. You, I know, understand our
language and yet you twist my words to suit your own meaning. What I did say
was that when we settle on the ground to work the land, that is when we will
need help and that is the only way a poor Indian can get along.”
(C-7, pp. 251-252)
[112]
According to Jackes, the third day of talks ended after Mista-wa-sis
stated that the Indians did not want food everyday, but only when they began
farming, and in case of famine or calamity. Ah-tuk-a-kup reiterated this
request and then asked for an adjournment (S-4, p. 213). Morris included a
similar, albeit truncated, version in his report and noted,
The whole day was occupied with this
discussion on the food question, and it was the turning point with regard to
the treaty.
The Indians were, as they had been
for some time past, full of uneasiness.
They saw the buffalo, the only means
of their support, passing away. They were anxious to learn to support
themselves by agriculture, but felt too ignorant to do so, and they dreaded
that during the transition period they would be swept off by disease or famine –
already they have suffered terribly from the ravages of measles, scarlet fever
and small-pox.
It was impossible to listen to them
without interest, they were not exacting, but they were very apprehensive of
their future, and thankful, as one of them put it, “a
new life was dawning upon them.”
(S-4, p. 185)
[113]
Erasmus’s rendition of many of the third day’s speeches is very similar
to the Jackes narrative. He differed in his portrayal of McKay’s speech;
indeed, his report of the Badger’s angry response, viz. that McKay
deliberately distorted the Badger’s words, shows that the Cree were mindful of
how their speeches were understood and used by the government’s side.
[114]
The final day of formal talks occurred on the 23rd. In the
Jackes narrative, Morris admonished a Chippewa, who had interrupted the
proceedings. Morris said that if the Chippewas wanted to speak to him, he would
hear them after he finished the treaty talks. He observed that the buffalo were
near and the Cree were anxious to go hunting, and then said he was ready to
hear them (S-4, p. 214).
[115]
Erasmus recounted that a man named Teequaysay (Tee-Tee-Quay-Say in the
Jackes narrative) stood and told the Crees,
“Listen, my friends,
all of you sitting around here, be patient and listen to what our interpreter
has been instructed to tell you. What he will tell you are the things our main
chiefs and councillors have decided to ask for and have agreed are for our best
interests. There will be no more talk or questions asked of the Governor.”
(C-7, p. 253)
[116]
Morris reported that the interpreter, Erasmus, read out the Crees’
demands (S-4, p. 185). The Jackes narrative also contains this part of the
proceedings (S-4, pp. 214-215). Both of these accounts specify the items and
changes sought by the Crees. According to Erasmus, he explained to the
commissioners that the list had been prepared by the main chiefs and their
councillors and that it contained little more than what had been promised.
Erasmus interpreted the list to the assembled Indians for their agreement and
then handed it to Morris (C-7, p. 253).
[117]
The Jackes narrative provides the greatest level of detail regarding
Morris’s response to the Cree counter-proposal. Morris responded to the Crees
by noting that some of what they asked for was already promised, but also, more
importantly, by making three major concessions. He promised one thousand
dollars each spring for three years to assist in the transition to agriculture
upon settlement on reserves. He agreed to a famine clause, where help would be
rendered in times of national famine or sickness. Morris also agreed to what
became known as the medicine chest clause. The other concessions involved
increasing the number of various agricultural implements and livestock to be
provided under treaty. He rejected the Crees’ request for provisions for the
poor, blind, and lame. He also declined their request for missionaries and
ministers, saying that while he was pleased by the request, the Cree must look
to the churches and various societies for such people. Regarding military
conscription, he said Indians would not have to fight unless they desired to do
so, but that if the Queen called on them to fight to protect their wives and
children, he was sure they would do so (S-4, pp. 217-219).
[118]
Poundmaker and Joseph Thoma spoke out after Morris’s response, both
objecting to what was offered. Thoma said that he was speaking on behalf of Red
Pheasant, chief of the Battle River Indians. Some of his remarks, as recorded
by Jackes, show an awareness of a previous treaty and also of the issue of land
value:
It is true the Governor says he
takes the responsibility on himself in granting the extra requests of the Indians,
but let him consider on the quality of the land he has already treated for.
There is no farming land whatever at the north-west angle, and he goes by what
he has down there. What I want, as he has said, is twenty-five dollars to each
Chief and to his head men twenty dollars. I do not want to keep the lands nor
do I give away, but I have set the value. I want to ask as much as will cover
the skin of the people, no more nor less. I think what he has offered is too
little. When you spoke you mentioned ammunition; I did not hear mention of a
gun; we will not be able to kill anything simply by setting fire to powder. I
want a gun for each Chief and head man, and I want ten miles around the reserve
where I may be settled. I have told the value I have put on my land.
(S-4, p. 220)
[119]
Morris rejected Thoma’s additional demands, and scolded Red Pheasant for
sitting silently earlier when Erasmus read the list of demands. Red Pheasant
stood and repudiated Thoma’s remarks (S-4, p. 221). Erasmus mentioned this episode
briefly (C-7, p. 253); Morris also included it in his report (S-4, p. 186).
[120]
After this incident, the principal Cree chiefs demonstrated their
acceptance of the proposed terms. Morris then said the following,
I will ask the interpreter to read
to you what has been written, and before I go away I will have a copy made to
leave with the principal Chiefs. The payments will be made tomorrow, the suits
of clothes, medals and flags given also, besides which a present of calicoes,
shirts, tobacco, pipes and other articles will be given to the Indians.
(S-4, pp. 221-222)
[121]
Erasmus described the revisions, reading, and signing process thus,
The Governor thanked the Indians for
their attention and co-operation in all the proceedings and stated that the additional
requests would be written in the treaty in all things he had agreed to. These
special provisions were added into the draft of the treaty before the signing
began. There were fifty signatures to that historic document and other
adhesions following the same wording as that signed at Carlton. The reading of
the treaty took a great deal of time and required the services of all the
interpreters but this time there were no fireworks in the matter of words used,
nor the objection to Ballenden’s voice. Half the Indians were not
concerned.
Mista-wa-sis had called me aside and
told me to keep a close watch on the wording to see that it included everything
that had been promised. However, the other chiefs appeared satisfied that the
Governor would carry out his promises to the letter. I was able to assure
Mista-wa-sis that everything promised had been included in the writing. He was
satisfied and his name was the first in the signing.
(C-7, pp. 253-254)
[122]
The revisions made to Treaty 6 are apparent on the document. The treaty
commissioners either arrived at Fort Carlton with a treaty already written out
on several sheets of parchment, its terms based on those of the earlier
numbered treaties, or had one drawn up before making the concessions to the Cree.
After the Cree proved to be formidable negotiators, revisions were made in the
field; additions were written in and extra pages were added before the
signature page (see S-1).
[123]
On the morning of the 24th, Morris presented the head chiefs
with their medals, uniforms, and flags. Christie gave the same to the other
chiefs and councillors that evening. Treaty payments commenced that day and
finished on the 25th. Erasmus assisted Christie in this task (C-7,
p. 254). Erasmus also recounted that Morris hired him to interpret at Fort Pitt
and paid him for his work at Fort Carlton (C-7, p. 255).
[124]
In Morris’s report, and in the Jackes narrative, an encounter with some
Saulteaux Indians is recorded (Jackes names them as Chippewas). Morris noted,
Besides these Saulteaux, there were
others present who disapproved of their proceedings, amongst them being
Kis-so-way-is, already mentioned, and Pecheeto, who was the chief spokesman at
Qu’Appelle, but is now a Councillor of the Fort Ellice Band.
(S-4, p. 187)
[125]
It is apparent that there were those who resisted taking treaty at Fort
Carlton. Erasmus’s description of the Cree council noted, as well, that there
were factions of the Indians who were opposed. Speeches made by Poundmaker and
Joseph Thoma show this as well. However, these voices did not carry the day and
the Cree leadership at Fort Carlton signed the treaty.
[126]
On the morning of August 26th, the Cree camp paid a farewell
visit to Morris at the fort. The Willow Indians sent a message the next day
from Duck Lake, in reply to a message sent to them by Morris. In his report,
Morris wrote that it was undesirable that so many Indians should be excluded
from the treaty (S-4, p. 187). The Willow Indians agreed to meet with the
commissioners at McKay’s camp on the 28th (S-4, p. 225).
[127]
Accordingly, both sides met. The chief of the Willow Indians, Beardy,
expressed some unhappiness with the treaty’s terms, and said there were not
enough of some things. He spoke about his concern for the future and asked for
assistance. He also requested a blue coat, rather than a red one (S-4, pp.
226-227).
[128]
Morris responded by saying he would speak as he had to the other
Indians: the government would not feed them on a daily basis, but the Willow
Indians would get their share of the thousand dollars’ worth of provisions once
they settled on reserves and took up tilling the soil. Morris also explained
that the government would help out in times of national famine or sickness, and
referred to the Red River grasshopper plague again as an example. He refused
Chief Beardy’s request for a blue coat. Morris agreed that the preservation of
the buffalo was important and that the territorial government would consider
the matter of passing a law on it. He finished be restating what he had said at
Fort Carlton, that the treaty was only for the Indians, not the half-breeds
(S-4, pp. 227-228).
[129]
In his December 1876 report, Morris made these observations:
The persistency with which these
Indians clung to their endeavor to compel the Commissioners to proceed to Duck
Lake was in part owing to superstition, the Chief, Beardy, having announced
that he had a vision, in which it was made known to him that the treaty would
be made there.
It was partly, also, owing to
hostility to the treaty, as they endeavored to induce the Carlton Indians to
make no treaty, and urged them not to sell the land, but to lend it for four
years.
The good sense and intelligence of
the head Chiefs led them to reject their proposals, and the Willow Indians
eventually, as I have reported, accepted the treaty.
(S-4, pp. 188-189)
[130]
August 29th was spent by Christie settling accounts, taking
stock of the clothing, and preparing for departure. Morris and Christie left
for Fort Pitt on the 31st, McKay having preceded them by way of
Battle River (S-4, p. 189).
3.
Negotiations at Fort Pitt
[131]
Erasmus arrived at Fort Pitt with his companion Little Hunter, ahead of
the government party (C-7, p. 258). John McDougall, accompanied by his younger
brother George, also arrived several days before the treaty commissioners:
From Victoria to Fort Pitt, George and
I made a rapid trip. Here we found the Indians assembling in large numbers from
the prairies and the woods. No such event as this had ever taken place in all
their history and all through the camps now becoming numerous dotting the hills
back of the fort there was much speculation as to what was about to happen.
Many of my old friend and
acquaintances came to see me in the fort and also invited me to their lodges. I
continued to assure them that the representatives of the Queen would do what
was right and fair. I asked them to wait patiently until the commissioners came
to place before them the proposals of the government.
Sweetgrass was the head chief of the
Plains Crees and Chief Pakan of the Wood and semi-Wood Crees. It was very evident
that the chiefs were feeling keenly the responsibility of the time. There were
some rebellious elements among the tribes. These men who had lived in absolute
freedom did not want any change. It was a question of just how much influence
they might exert among the lodges when matters came to an issue. Thus these
days were tense.
(C-8, pp. 56-57)
[132]
Jackes and Morris reported that the government party arrived at the fort
on September 5th. Colonel Jarvis and a detachment of North-West
Mounted Police met them about six miles from the fort and provided an escort.
The Indians, expecting the arrival of more people, asked for an adjournment
until the 7th (S-4, pp. 228-229). Both Jackes and Morris recounted a
welcoming visit from Chief Sweet Grass and 30 of his men on the morning of the
6th (S-4, p. 189 and pp. 228-229).
[133]
In Buffalo Days and Nights, Erasmus told of a meeting he had with
the Cree chiefs, at their request, on September 6th:
I was questioned at some length
about the attitude of the tribes who signed the treaty at Carlton, about
details in reference to treaty concessions, and the terms agreed upon, which by
that time I had memorized by heart. I gave them a review of the discussions of
the council meeting of the chiefs at Carlton, reporting the objections raised
by those who opposed the signing, and spoke of the petition that had been drawn
up for the Commissioner, with the points agreed to and those refused. I
mentioned Poundmaker’s and The Badger’s
efforts at trying to block or misinterpret the terms of the treaty, at which
there were some expressions of disgust about their attitude. Then I wound up my
talk by a report of the two speeches made by Mista-wa-sis and Ah-tuk-a-kup that
had swung the whole opinion of the assembly in favour of the signing.
Sweet Grass, who was the most
important chief among those gathered in council, rose to his feet to speak to
their people.
“Mista-wa-sis
and Ah-tuk-a-kup, I consider, are far wiser than I am; therefore if they have
accepted this treaty for their people after many days of talk and careful
thought, then I am prepared to accept for my people.”
Chief Seenum then took his place and
spoke. “You have all questioned Peter Erasmus on the things
that have taken place at Carlton. He is a stranger to many of you but I am well
acquainted with him. I have respect for his words and have confidence in his
truthfulness. Mista-wa-sis and Ah-tuk-a-kup both sent their sons all the way from
Carlton to where he lives, and he is married to one of our favourite daughters.
He was not at home but they followed him to the prairie where he was hunting
buffalo with our people. Little Hunter is a chief and brings back a good report
of his work during treaty talks. He would not tell us something that was not
for our good. Therefore, as those other chiefs who are in greater number than
we are have found this treaty good, I and my head man will sign for our people.
I have spoken.”
Each of the other chiefs with their
councillors expressed agreement, each man expressing in his own words ideas
that conformed to the general acceptance of treaty terms. They were all willing
to sign the treaty and there was not a single dissenting voice.
(C-7, pp. 258-259)
[134]
Everyone began to assemble before the council tent late in the morning
of September 7th. The negotiations were opened by ceremonies. Morris
gave an opening address. He noted his concern for their future well-being. He
spoke of the Fort Carlton negotiations and reiterated his concern for the
future and the disappearance of the buffalo. He also said that despite the
difficulties he had with Chief Beardy, he was able to bring him into treaty.
Morris spoke of previous treaties. He also spoke of the Cypress Hills massacre
of 1873, and the protection now afforded by the NWMP. He reassured the Indians
that they would not be subject to military conscription (S-4, pp. 230-234).
[135]
Morris closed his address by saying he expected that they were prepared
for his message, and he would go no further until any chiefs, who wished,
spoke. Sweet Grass then arose, took Morris by the hand, and asked to hear the
treaty’s terms before adjourning
so they could
meet in council. Jackes reported,
The Governor then very carefully and
distinctly explained the terms and promises of the treaty as made at Carlton;
this was received by the Indians with loud assenting exclamations.
(S-4, p. 235)
[136]
John McDougall attended this first day of talks. He noted that he was
asked by whites and Indians to watch carefully and take note of everything. He
reported the opening talks thus:
The Indians gave strict attention
and when the chief commissioner had finished with his proposals and a full
explanation thereof, Sweetgrass arose in his place and in a very few words
thanked the commissioner for the occasion. He said also that he and his fellow
chiefs and head men having listened would now, with the consent of these great
men representing the government, retire to their council lodge. He hoped that
on the third day from that time that they would be ready to come before the
great men with their answer. To this the chief commissioner replied that it was
most reasonable and he would expect to meet them at the time proposed in
friendliness and peace. This whole proceeding occupied a brief hour and this
unique gathering separated.
(C-8, p. 58)
[137]
The McDougall account differs from Morris in the length of time taken up
by these opening addresses. McDougall recalls it as a brief hour, whereas
Morris, in his report, stated that it took him three hours.
[138]
The Erasmus account of Fort Pitt differs somewhat from those of Morris,
Jackes, and McDougall. He described the opening ceremonies and mentioned
Morris’s speech, but did not provide details. His account then diverges in that
he recalled that Chief Eagle (Ku-ye-win) responded to Morris by urging the
people not to be afraid to speak their minds on anything they did not
understand or wished to know. No one did and then, according to Erasmus, Sweet
Grass made a speech accepting the treaty’s terms.
[139]
After this, Erasmus noted that Chief James Seenum asked Morris for a
large tract of land for all the Cree who did not take treaty. Morris replied
that he could not grant such a request,
“It
is not in my power to add clauses to this treaty, no more than you have already
been promised, but I will bring your request before the House at Ottawa.
However, I know that it will not be accepted. As you said so, being a chief, I
will bring the matter to the attention of my superiors.”
(c-7, PP. 260-261)
[140]
The chronology as presented by Erasmus does not match Morris, Jackes, or
McDougall. Erasmus omitted mention of the assembly adjourning for the Cree
council. However, he did note that the treaty terms were read and explained to
the people on September 9th, and that the chiefs agreed and signed
on that day. He also noted that there was none of the dissension that had
occurred at Fort Carlton (C-7, p. 261).
[141]
Morris noted in his report that the Crees asked for more time to meet in
council:
On the 8th the Indians
asked for more time to deliberate, which was granted, as we learned that some
of them desired to make exorbitant demands, and we wished to let them
understand through the avenues by which we had access to them that these would
be fruitless.
(S-4, p. 190)
[142]
In his book Opening the Great West, Rev. McDougall recounted how
he was summoned by Chief Sweet Grass to attend the Cree council and what
ensued:
The next afternoon a messenger from
the Head Chief Sweetgrass brought a request that I should go up to their
council lodge. Having made sure that the request was bona fide, I went up the
hill to the gathering of Indians. There I was taken forward to sit immediately
beside the head chief. Sweetgrass introduced me as an old friend and the one
white man he had found with an Indian heart. He had known my parents who were,
without doubt the true friends of the Indian peoples. “Moreover
this young man speaks and understands our language just like ourselves. I have
sent for him to tell us what the proposals of the treaty mean, to give us fully
what the white chief said, to go over all his promises and interpret them to us
so that I and you, my people, may truly understand what was said to us
yesterday. Remember that his young man whom I call my grandson has my full
confidence and when he speaks I always believe him.”
Then turning to me he said, “Now, John my grandson, tell these
Chiefs what you understood the white Chief to say when we met him yesterday.”
“Very
carefully and minutely I went over my notes of yesterday explaining fully and
causing my audience to see and understand what it meant. When I was through
with my explanations the chief again approached me. “I
thank you for what you have told us,” he said. “Now
I want you to go further and put yourself in our place. Forget that you are a
white man and think you are, for the time, one of us, and from that standpoint
speak out your mind as to what we should do at this time.”
For a moment I felt embarrassed.
Then bracing up I first thanked the chief for his confidence and spoke fully
of British justice and Canadian Government fair play. I told these chiefs and
warriors what I had seen among the Indians of Eastern Canada. There they held
their reserves among the white people and were living in peace. I predicted
that the same conditions would come to pass in this country. I strongly advised
them to go before the commissioners on the morrow and signify their acceptance
of the proposals brought to them. When I was through I retired with a feeling
of deep satisfaction that after sixteen years of association and intercourse
with these western tribes that they had thought me worthy of their utmost
confidence in deciding these affairs so vitally important to them and their
descendants for generations to come.
(C-8, pp. 58-59)
[143]
Morris noted that the Indians were slow to assemble at the council tent
on the day following their deliberations (S-4, p. 190). Jackes observed,
On the morning of the 9th
the Indians were slow in gathering, as they wished to settle all difficulties
and misunderstandings amongst themselves before coming to the treaty tent, this
was apparently accomplished about eleven a.m., when the whole body approached
and seated themselves in good order... .
(S-4, p. 235)
[144]
Once everyone assembled, Morris asked for the Crees to give him their
response. As noted by Erasmus, the Eagle stood and encouraged the Cree to speak
their minds. No one spoke, and Morris asked once more for them to give him
their response (S-4, pp. 235-236).
[145]
Chief Sweet Grass arose and spoke. He accepted the treaty and Jackes
observed, “The Chief’s remarks were assented to by the Indians by loud ejaculations”
(S-4, pp. 236-237). Morris replied that he was glad they accepted the offer,
and said,
I feel that we have done to-day a
good work; the years will pass away and we with them, but the work we have done
to-day will stand as the hills. What we have said and done has been written
down and cannot be rubbed out, so there can be no mistake about what is agreed
upon. I will now have the terms of the treaty fully read and explained to you,
and before I go away I will leave a copy with your principal Chief.
(S-4, p. 237)
[146]
Jackes wrapped up his narrative of this day of treaty talks by
recounting speeches made by several Cree men (S-4, pp. 238-239). Rev.
McDougall’s account of this day is brief. His record of the speech made by
Chief Sweet Grass accepting the treaty terms is very similar to that of Jackes.
Thus, his record may not be entirely independent; he may have relied on Jackes
when he came to write this portion of his memoirs, which were written around
1912.
[147]
As mentioned above, Erasmus mentioned September 9th almost in
passing, noting,
On September 9th, the
treaty terms were read and explained to the people. The chiefs agreed to sign,
and so the treaty was quickly completed with none of the dissension that had
occurred at Carlton. The paying of treaty money and issuing of uniforms took
the greater part of two more days.
(C-7, p. 261)
[148]
The next day was a Sunday. Rev. McKay held a service for the police.
Rev. McDougall held a service in Cree, while Bishop Grandin and Rev. Scollen
also had services for the Crees and Chippewayans (S-4, p. 192).
[149]
Treaty payments and the distribution of provisions were completed by
Christie on the 11th of September. Morris noted in his report that
the Great Bear (named Big Bear in the Jackes account) paid him a visit on the
12th of September. He had been out hunting, but upon hearing of the
treaty talks, had been sent in by the Crees and Assiniboines to speak for them.
Morris reported that he told the Great Bear of what went on at Forts Carlton
and Pitt and they resolved to meet again the next day (S-4, p. 192).
[150]
On the morning of the 13th of September, Chief Sweet Grass
and the other chiefs and head men came to the fort to pay their respects and
bid farewell to the commissioners. Jackes recorded their remarks to Morris. Big
Bear again expressed that he was there on behalf of several bands that were out
on the plains hunting. Sweet Grass and the White Fish Lake chief urged Big Bear
to agree to the treaty and take the hand of Morris. Big Bear told them to stop,
that he had never seen Morris before, but that he had seen Christie many times.
Big Bear asked that Morris save him from what he dreaded most, that a rope
should be around his neck. Morris answered that murder was punishable by death,
except in instances of self-defence. Big Bear also spoke of protecting the
buffalo. Morris told Big Bear to tell the others out on the plains that they
could join the treaty next year. He also asked Big Bear to tell them the
following,
I wish you to understand fully about
two questions, and tell the others. The North-West Council is considering the
framing of a law to protect the buffaloes, and when they make it, they will
expect the Indians to obey it. The Government will not interfere with the
Indian’s daily life, they will not bind him. They will only help
him to make a living on the reserves, by giving him the means of growing from
the soil, his food. The only occasion when help would be given, would be if
Providence should send a great famine or pestilence upon the whole Indian
people included in the treaty. We only looked at something unforeseen and not at
hard winters or the hardships of single bands, and this, both you and I, fully
understood.
(S-4, p. 241)
[151]
Morris then bid the Indians farewell, and said he did not expect to see
them again and that another Governor would come in his place. Everyone shook
hands. Big Bear said that he would not sign because his people were not
present, but that he would come next year. The group broke apart. Big Bear
returned to see Morris at the fort about an hour later and reiterated his
comments and that he would sign the treaty the following year (S-4, pp.
239-242).
[152]
The treaty commissioners left Fort Pitt on September 13th and
arrived at Battle River on the 15th. There were no Indians there but
Red Pheasant and his band, who had taken treaty at Fort Pitt. On the 16th,
the commissioners met with Red Pheasant and they discussed the location of the
band’s reserve. Morris urged them to select a place as soon as possible, so
that they would have access to the agricultural implements and livestock
promised under treaty. The commissioners left Battle River on September 19th,
and Morris returned to Fort Garry on October 6 (S-4, pp. 242-244).
[153]
The government responded rather negatively to Morris’s inclusion of the
famine clause, as demonstrated in a letter to Morris from the Department of the
Interior, dated March 1, 1877:
His Excellency [the Governor
General] finds that in some respects, especially in the matter of the
distribution of agricultural implements, and the provision of seed grain, the
terms of the treaty are more onerous than those of former Treaties; and he
regrets especially to find that the Commissioners felt it necessary to include
in the Treaty, a novel provision, binding the Govt. to come to the assistance
of the Indians included in the Treaty in the event of their being visited by
any pestilence or famine. It cannot be doubted that this stipulation as
understood by the Indians, will have a tendency to predispose them to idleness
and to make them less inclined to put forth proper exertions to supply
themselves with food and clothing.
It is to be feared to that the
publication of the terms of this Treaty may render the Indians heretofore
negotiated with dissatisfied with the less favorable terms which have been
secured to them, and make those still to be treated with more exacting in their
demands than they otherwise would have been.
But while his Excellency has felt
that for the reasons above given, the Treaty was open to objection, he has
thought it advisable to ratify it, believing that the mischiefs which might
result from a refusal to do so might produce discontent and dissatisfaction,
which would ultimately prove more detrimental to the country, than the
ratification of the Treaty.
(C-303, tab 41)
4. Blackfoot Crossing: Bobtail’s Adhesion
[154]
Treaty 7 was concluded with the Blackfoot, Blood, Peigan, Sarcee, and
Stony Indians on September 22, 1877 at Blackfoot Crossing, on the Bow River.
Morris did not act as treaty commissioner. The Northwest Territories Act came
into effect after Treaty 6 was signed. David Laird travelled to the west and
became Lieutenant-Governor and Indian Commissioner of the Territories in
November 1876. Morris’s involvement with the western numbered treaties, of which
he had been such a strong proponent, ended with Treaty 6.
[155]
Morris included Laird’s report on what transpired at Blackfoot Crossing
in his book on the treaties. The following excerpt from Laird’s report deals
with the adhesion of Cree Chief Bobtail:
On the evening of Monday I also
received a message from Bobtail, a Cree chief, who, with the larger portion of
the band, had come to the treaty grounds. He represented that he had not been
received into any treaty. He, however, had not attended the meeting that day,
because he was uncertain whether the Commissioners would be willing to receive
him along with the Blackfeet. I asked him and his band to meet with the
Commissioners separate from the other Indians on the following day.
On Tuesday, at two o’clock,
the Cree Chief and his band assembled according to appointment. The
Commissioners ascertained from him that he had frequented for some time the
Upper Bow River country, and might fairly be taken into the present treaty, but
he expressed a wish to have his reserve near Pigeon Lake, within the limits of
Treaty Number Six, and from what we could learn of the feelings of the
Blackfeet toward the Crees, we considered it advisable to keep them separate as
much as possible. We therefore informed the Chief that it would be most
expedient for him to give in his adhesion to the treaty of last year, and be
paid annually, on the north of the Red Deer River, with the other Cree Chiefs.
He consented. We then told him that we could not pay him until after the
Blackfeet had been dealt with, as it might create jealousy among them, but that
in the meantime his band could receive rations. He said it was right that he
should wait until we had settled with the Blackfeet, and agreed to come and
sign his adhesion to Treaty Number Six at any time I was prepared to receive
him.
(S-4, pp. 256-257)
[156]
Bobtail’s adhesion was considered to bind Ermineskin and Samson to
Treaty 6. Certainly, no evidence, or even suggestion, was presented at trial to
dispute this scenario.
D. The
Historical Context and Meaning of Treaty 6: The Expert Opinion
i. The Treaty
Commissioners
[157]
As noted previously, three men acted for the Canadian government as
treaty commissioners for the 1876 Treaty 6 negotiations: Alexander Morris,
William J. Christie, and James McKay.
[158]
Morris was the lead negotiator for the government side. At the time of
Treaty 6, Morris was Lieutenant-Governor of Manitoba, the North-West
Territories, and Keewatin. He had also been appointed Chief Justice of the
Court of Queen’s Bench of Manitoba in July, 1872. Morris was the government’s
chief negotiator for Treaties 3, 4, and 5, and was also in charge of dealing
with the “outside promises” of Treaties 1 and 2, and their subsequent revision.
Morris’s involvement in the treaty process ended with Treaty 6.
[159]
W. J. Christie acted as a treaty commissioner for Treaties 4 and 6. He
had spent his adult career as a trader with the HBC, starting as an apprentice
clerk at Rocky Mountain House in 1843. He rose to the rank of Chief Factor of
the Saskatchewan District, at Edmonton House, a position he held from1860 until
his retirement in 1873. He had worked with Morris as commissioner during the
Treaty 4 negotiations.
[160]
The third commissioner at Treaty 6 was James McKay. He was a Métis from
Red River and was Minister of Agriculture in the Manitoba government. McKay was
a witness and translator for Treaties 1,2, and 3. He also served as a treaty
commissioner alongside Morris at Treaty 5.
[161]
The three commissioners representing Canada at the Treaty 6 negotiations
had, between them all, extensive experience in the treaty negotiation process.
Two were experienced in government, and the other had spent his adult life
working as an HBC trader in the west. Two of the commissioners, Christie and
McKay, spoke Cree. Thus, they were not unfamiliar with conditions in the west,
nor were they unfamiliar with, or to, aboriginal people.
[162]
The commissioners negotiated Treaty 6 with the government’s objectives
and intentions in mind. I turn now to the expert opinion on this matter.
[163]
Professor Ray wrote, in the abstract at the outset of his report, that
Canada’s goals and needs helped shape the timing and character of Treaty 6
(S-3, p. iii). Canada had recently purchased Rupert’s Land and was anxious to
clear aboriginal title to the land, through treaties, as cheaply as possible.
The government also wished to avoid war with the Plains Indians. War would be costly
in human lives and financial terms; furthermore, it would delay the migration
of settlers (see also S-3, pp. 51-62).
[164]
On cross-examination, Professor Ray agreed that Canada’s objective was
to extinguish aboriginal title, so as to make room for settlers and the
development of agriculture and mining (transcript volume 24, pp. 3201-3202).
[165]
In his report, Professor Sanders listed what he described as themes,
gleaned from government accounts, in western numbered treaty making from 1867
to the 1920s (S-49, p. 14). Through the treaties, the government sought to
secure peaceful relations, open up the territory to settlement, protect a
limited regime of Indian rights, develop agriculture or cattle raising by
Indians, develop an education system, prohibit alcohol, and organize the tribes
into bands with government recognized leaders.
[166]
Dr. von Gernet offered a slightly different opinion on the military
threat posed by the Cree; he did not think they had the capability to mount a
war against Canada in the 1870s. Dr. von Gernet testified that he did not think
that the government viewed the threat of an Indian war as a major reason for
Treaty 6. In his opinion, the government was more likely interested in
preventing friction or hostilities between settlers and natives (transcript
volume 168, p. 23269). Dr. von Gernet characterized the raison d’être of
treaty making, on the part of the government, as land cessions, or quit claims.
He noted that the language of the land surrender clause of Treaty 6 is similar
to dozens of pre-Confederation instruments (C-320, pp. 26-27).
[167]
Professor Ray wrote that Canada’s treaty officials operated on the basis
of established treaty-making practices, using the Robinson accords and Treaties
1 through 3 as the crucial blueprint (S-3, p. 93). Indeed, Morris explicitly
set out this very same blueprint in chapter 12 of his 1880 book (S-4, pp.
285-292).
[168]
Professor Ray also believes that the Canadian government appointed
Christie as a treaty commissioner so as to establish a link with the tradition
of the HBC serving as the Crown’s de facto representative in the west
(transcript volume 23, pp. 3111-3112). This would effectively tap into Cree
familiarity with that tradition, including their long history of negotiating
various accords with the HBC and, of course, their longstanding relationship
based on the fur trade.
ii. The Cree
Side
[169]
In his book, Morris characterized Mista-wa-sis and Ah-tuk-uh-kup as head
chiefs of the Cree at Fort Carlton, and Sweet Grass as the principal chief of
the Plains Cree (S-4, pp. 176 and 179). The signature page of Treaty 6,
included in the appendix to the Morris book, describes Mista-wa-sis and
Ah-tuk-uh-kup as Head Chiefs of the Carlton Indians; several other chiefs and their
councillors are also recognized on the written document of the treaty and its
various adhesions. Thus, the treaty was concluded with the Cree leadership. But
what were their intentions and objectives?
[170]
According to Professor Ray, the Cree’s treaty-making objectives were
largely determined by their immediate needs and concerns (S-3, pp. ii-iii).
Smallpox and other epidemics had caused great suffering and death amongst the
Cree. By the 1870s, the buffalo herds were greatly reduced in size and the collapse
of the buffalo hunting economies of the Plains Cree was imminent. The Cree
wanted assistance in making the transition to agriculture as their primary
means of survival. They were angry over the sale of their lands by the HBC to
Canada in 1870, and also disturbed to see surveyors entering their territory
and running lines for railways, telegraphs, and the Canada-United States
boundary. But it was the impending collapse of the buffalo and the change in
their relationship with the HBC that drove the Cree to the bargaining table
(S-3, p. 93).
[171]
In Professor Ray’s opinion, the Cree would have used Treaties 1 through
5 as their primary reference points; they would have had knowledge about these
treaties through native informants, white traders, and government negotiators
(S-4, p. iii). Professor Ray also noted that Indians received advice from HBC
officers and servants, as well as missionaries, all of whom would be reasonably
well-informed about the economic changes that were in the wind (S-3, p. 64). A
central issue in all of the treaty negotiations of the 1870s related to
livelihood rights, that is, hunting, trapping, and fishing rights (S-3, pp.
64-65). The Cree were attempting to secure their future in ways that were
compatible with their traditions (transcript volume 23, pp. 3025-3026).
[172]
Dr. Flanagan testified that the Cree were not confronted with a
completely novel situation with regard to Treaty 6 (transcript volume 152, p.
21100). The Cree, according to Dr. Flanagan, had heard about treaties in the
United States, as well as Treaties 1 through 5. He believed they would have had
a general idea of what was involved: there would be negotiations, reserves of
land set aside for them, and other benefits, such as annuities and agricultural
implements.
[173]
Dr. von Gernet testified that the Cree leadership would have been aware
of previous treaties and that, to some extent, the leaders would have discussed
such things with their constituencies (transcript volume 138, p. 23298). He
further testified that the Cree would have been aware of the outside promises
issue regarding Treaties 1 and 2, which he characterized as a matter of some
notoriety (transcript volume 138, pp. 23299-23300).
[174]
The other expert witness called on behalf of Ermineskin was Professor
Wolfart. He testified about the linguistic aspects of the making of Treaty 6
and discussed an oral history document he has analysed that deals with Treaty
6. I shall comment on his evidence further in these Reasons.
E. Other
Evidence: Lay Witnesses
[175]
Ermineskin did not adopt as witnesses any of the elders called by Samson
in its action, nor did Ermineskin call any elders of its own to testify or give
oral histories of the making of Treaty 6. Ermineskin’s lay witnesses for the
first phase of the trial are Mr. John Ermineskin and Mr. Brian Wildcat.
[176]
Mr. Ermineskin was born and raised on the Ermineskin Reserve and is a
former Chief of the Ermineskin Indian Band and Nation. Mr. Ermineskin can trace
his ancestry directly back to Bobtail, who adhered to Treaty 6 in 1877 at
Blackfoot Crossing (E-257; see E-528, a photograph of Chief Bobtail).
[177]
Mr. Ermineskin did not purport to give oral history testimony, and was
not put forth as giving such. He did, however, provide the Court with
information gleaned from his grandmother, Isabelle Smallboy, now deceased. She
taught him things about Treaty 6 (transcript volume 142, pp. 19442-19448).
[178]
According to Mr. Ermineskin’s understanding of what his people knew, or
understood, when they took treaty, the relationship between the two parties
“was meant for life, as long as the sun shines and the river flows.” At the
signing of the treaty, it was understood that their reserve lands would be
“totally under the control of the Indian Affairs.” It was also understood that
that Indian Affairs would handle all of their affairs, including health,
education, and resources (transcript volume 142, pp. 19448-19449).
[179]
Mr. Ermineskin also testified about the pervasive control and influence
that Indian Affairs had, and have, over the lives of his people. Indian Agents
lived on the Ermineskin Reserve until the late 1960s. At that time, the Cree
name for the Indian Agent was Sooni-yaw Okeymaw, or money chief. Mr. Ermineskin
testified about the power and authority the agents had over band matters. For
example, a band member who wanted to sell grain had to get a permit from the
Indian Agent (transcript volume 142, pp. 19449-19452).
[180]
Since the late 1960s, when the last Indian Agent left the Ermineskin
Reserve, Indian Affairs still controls virtually aspect of band affairs,
according to Mr. Ermineskin. He testified that the Department has the right to
refuse the Ermineskin budget and, if that happens, then they do not get their
revenue money (transcript volume 142, pp. 19452-19453).
[181]
According to Mr. Ermineskin, there are approximately 3000 members of the
Ermineskin Indian Band and Nation today (transcript volume 142, p. 19447).
[182]
The second lay witness for the plaintiffs in the first phase was Mr.
Wildcat. During the past twenty years, he has worked for the Ermineskin Indian
Band and Nation as the director of education for Miyo Wahakowtow Community
Education Authority, which runs and operates the Ermineskin schools (transcript
volume 142, p. 19469).
[183]
Mr. Wildcat’s testimony was primarily about the contemporary state of
affairs of the Ermineskin Indian Band and Nation. According to Mr. Wildcat, who
was 43 years old at the time of his testimony on December 11, 2001, only two
other band members graduated from high school the same year that he did. The
graduation rates continue to be dismal: in 1997, no band members finished high
school; three did so in 1999; and in 2001, there were 10 graduates. As far as
he knows, only 23 band members have post-secondary education (transcript volume
142, pp. 19470-19472).
[184]
Mr. Wildcat further testified that, in the past fifty years, only eight
Ermineskin Band Council members have finished high school. At that time, none
of their chiefs had ever graduated from high school (transcript volume 142, pp.
19472-19473).
[185]
In Mr. Wildcat’s experience, this low level of education and high rate
of illiteracy have, among other things, contributed to low self-esteem and
dependency on the government to take care of needs (transcript volume 142, pp.
19475 and 19478-19480).
F. Findings
i. Treaty 6:
[186]
Although Ermineskin did not litigate the meaning and interpretation to
be placed on the land surrender clause of Treaty 6, they did adopt the evidence
of Professor Wolfart, who asserted, among many other things, that the Cree
could not possibly have surrendered their land because they could not
understand such a concept. In Professor Wolfart’s opinion, Peter Erasmus, the
main translator during the treaty negotiations, did such a horrible job that it
led to an entire breakdown in the communication between the two sides.
[187] Professor
Wolfart’s testimony also dealt with an oral
history document. He analysed a treaty story told by Jim Kâ-Nîpitêhtêw. It is
not clear whether the story relates to Fort Pitt or Fort Carlton, or conflates
accounts of both proceedings. There is precious little information about the
story’s provenance. Accordingly, I
cannot place much weight on this account.
[188]
Professor Wolfart gave evidence for a period of approximately 11 days.
Upon reading his evidence the first time, I was left with the feeling that
most, if not all of his evidence was totally irrelevant, unless, of course, it
was important for the Court to know that Professor Wolfart had been a linguist
for 35 years.
[189]
I did not count how many times Professor Wolfart informed the Court of
this fact. I am sure it was at least five times. Why it was necessary for
Professor Wolfart to repeat this fact, I am at a total loss.
[190]
In the same way I am at a total loss as to about 90% of his evidence. I
challenge anyone to read what Professor Wolfart stated in evidence and come
away with more than 10% of what he stated that could be considered relevant.
[191]
As an example, and there are many in the reading of Professor Wolfart’s
evidence, of the verbosity of the answers, when Professor Wolfart, on page
10479, is asked a relatively simple question, it took him eight typewritten
pages to answer, from page 10479 to 10487.
[192]
I also have difficulty in accepting Professor Wolfart’s evidence as
relating to the issue of translating the English terms of the Treaty to Cree.
On page 10557, Professor Wolfart states, among many things:
“Now, clearly I have trespassed upon this set of highly
technical terms by presuming that there would be a few that might have come up
even in the wretched interpretations that I maintain was used at the time of
the conclusion of Treaty 6.”
[193]
It is interesting to note that Professor Wolfart states the
“interpretation”, and I add, translation, was wretched as it applies to
what the Indians of Treaty 6 were told and this based on what he believes is
involved in the interpretation of the words of the Treaty.
[194]
He, of course, has not the faintest knowledge of what was said by Peter
Erasmus to the Cree Indians attending the signing of the Treaty. It is obvious
that Professor Wolfart has no knowledge of what Cree words were used by Peter
Erasmus to explain to the Cree Indians that in return to get food, medicine,
cattle, resources, they would have to give up certain things.
[195]
For Professor Wolfart to tell me that the Indians could not possibly
understand that they had to give up certain things, that is, cede their land
but could easily understand that they were to receive food, medicine, cattle
and resources, remains a total mystery to me.
[196]
Turning to the documentary, or contemporary eyewitness accounts, I find
those of Morris and Jackes to be reliable records of the Treaty 6 negotiations.
I acknowledge that neither man was a disinterested, or independent, party;
indeed, Morris and Jackes acted on behalf of the Canadian government during the
treaty proceedings. However, I have no evidence before me that would either
impugn or cast doubt upon the essential objectivity of their respective
accounts. Jackes created his account so as to provide a record of the
proceedings. Morris wrote both an official report and a book, which
incorporated his report and published publicly for the first time the Jackes
narrative. Given the official and, later public, nature of these accounts and
the ensuing scrutiny to which they would be subjected, I find this only
increases their reliability and thus the weight that this Court can place on
them.
[197]
The Morris and Jackes accounts were generated in the past,
contemporaneous to the events which they record. Thus, their pastness does not
have to be demonstrated and the records are immune from present-day influences.
[198]
The Erasmus account, Buffalo Days and Nights, is an oral history
in that the book presents his recollections of past events in which he
participated. Erasmus may have been prone to self-aggrandizement, as well as a
certain degree of arrogance and bluster; nonetheless, he provides valuable
insights and details into the treaty negotiations, especially the Cree council.
I am satisfied that, given his background, education, and circumstances,
Erasmus was more than an able and competent translator. Unlike Professor
Wolfart, I am not of the opinion that Erasmus’s translation efforts were
“wretched.” If one were to abide by Professor Wolfart’s lofty standards, it
would have been nigh well impossible to conclude a treaty at all. Parts of the
Erasmus account may rely on the Jackes narrative and thus may not be completely
independent; however, I conclude that the Erasmus account is a reliable record
of the treaty talks.
[199]
Similarly, I find the McDougall account, Opening the Great West,
to be a reliable record of the treaty talks at Fort Pitt. McDougall was
certainly a proponent and advocate of taking treaty because he saw that as
being in the Crees’ best interests. McDougall was married to a half-Cree woman
and spoke Cree himself, having moved west in 1862 with his family. While he may
not have been a fluent speaker of Cree, the evidence shows that McDougall was
familiar with and attuned to their culture and way of life.
[200]
It is clear that Rev. McDougall understood what was being asked of the
Crees, viz. to surrender their rights to the land in return for certain
promises from the government. His remark that he referred to notes he took
during the speech by Morris as to what the treaty terms were only enhances the
reliability of his explanations to his Cree audience. His pro-treaty stance
does not diminish his role or his ability to explain to the Cree council what
the treaty entailed. Indeed, Rev. McDougall’s remarks at the end of his book
demonstrate that he understood what the treaty meant in terms of the parties’
relations to the land:
The Indians reserved certain areas
in the proportion of one section of good land for every five souls. They were
to select these reserves, the government was to have them surveyed and to
maintain these reserves for the Indians inviolate so long as the grass grows
and rivers run. The Cree word Iskoman means that which is kept back and
is the equivalent of the Anglo-Saxon word “reserve”.
Thus an immense area which today embraces very large portions of the best parts
both of Saskatchewan and Alberta passed by treaty into the hands of the
Canadian Government and the aboriginal and long conceded territorial right
thereto was given over with full consent of the tribes dwelling therein to our
government – the reserves above described being excepted.
(C-8, p. 60)
[201]
In my opinion, the purpose of Treaty 6, insofar as the Canadian
government was concerned, was to secure the surrender of aboriginal title to a
vast tract of land so as to open it up for settlement and development. The
treaty was also an instrument of peace and friendship, in that it forged an
alliance between the aboriginal people of that area with the Canadian
government. Thus, from the government’s perspective, the land surrender was
absolutely non-negotiable – unlike various other parts of the treaty, such as
money, agricultural implements, and livestock. The amounts of such provisions
were open to revision and increase, whereas the land surrender clause was not.
In my opinion, the Cree leadership was aware of this and accepted it going into
treaty, hence the lack of protracted discussion on this topic. The focus of the
treaty talks were on what the Cree would receive, not what they were giving up.
The evidence shows that the Cree were aware of previous treaties to the east.
Chief Sweet Grass sent a letter, through William Christie, to the government
asking for a treaty in 1871. During the Treaty 6 talks, the Cree had the advice
and counsel of people like Erasmus and McDougall, who understood the purpose of
Treaty 6 and would have no motive to sugarcoat, or indeed misrepresent, the
land surrender clause.
[202]
During the treaty talks, Morris assured the Cree that they could
continue with their traditional way of life. Yet he also tempered these remarks
with explicit warnings of change with the impending arrival of settlers. Morris
was quite clear in stating that while the Cree could continue to hunt and fish
as before, this would only pertain to land that was not taken up for
settlement. However, he was also quite clear that the reserves would be set
aside for the benefit of the Cree and that no one could take their homes from
them. Moreover, if they wanted to sell all, or part, of their reserves, this
could only be done by the Queen with their consent; the proceeds would also be
kept by the Queen and “put away to increase.”
[203]
For their part, the Cree leadership was concerned with their people’s
economic security. The bison herds, which once blanketed the Great Plains, were
fast diminishing and retreating. The leadership was aware of this, and other
crises, such as epidemics, which had caused terrible hardship and suffering.
They were keen to protect their people from famine and disease, hence the focus
of the treaty talks on what the Cree would receive.
ii. Lay
Witnesses
[204]
As for the plaintiffs’ lay witnesses in the first phase, their evidence
deals, for the most part, with the current state of affairs of the Ermineskin
Indian Band and Nation. The understanding of Treaty 6 that Mr. Ermineskin told
the Court about is plausible and certainly accords with what the historical
records have shown, in that the Crown undertook, by Treaty 6, to provide the
Cree with certain things, such as health care (although it was, of course, not
called such in the Treaty, but rather termed a “medicine chest”) and education.
Moreover, the reserves would be set aside for the Cree and would be
administered by the Crown.
[205]
As for Mr. Wildcat’s testimony, I have no doubt that he presented the
Court with an accurate assessment of the plaintiffs’ struggles with illiteracy
and low levels of education. This would, in turn, lead to a high degree of
dependency on their part – however undesirable and lamentable that may be – on
the federal government for various things. The plaintiffs assert that this high
degree of dependency consequently informs the duties owed by the Crown.
Accordingly, I will address this point further in these Reasons.
III. Phase Two: Money Management
A. Witnesses
I. Experts
1. For the plaintiffs
Allen Lambert
[206]
Mr. Lambert, a former President and CEO of the Toronto Dominion Bank,
tendered an expert report (SE-351), rebuttal report (SE-354), and surrebuttal
report (SE-355). Mr. Lambert’s involvement with the Canadian banking and
financial industry spans some seventy years, beginning in Victoria in 1927
(SE-348). Mr. Lambert was qualified at trial as an “expert in Canadian banking,
financial management and money management generally, including investment and
trust fund management and Canadian financial services, with considerable
experience in monetary policy” (SE-347).
Donald McDougall
[207]
Mr. McDougall, Director of RBC Global Services’ Benchmark Investment
Analysis practice, submitted an expert report (ES-382) and a surrebuttal report
(SE-377), as well as a further report updating the performance investment data
to December 31, 2003. According to his C.V., before joining RBC Global Services
in 2000, Mr. McDougall spent 14 years with SEI Investments (SE-374). At SEI, he
was responsible for advisory services to plan sponsors, with particular
expertise in policy planning, investment structure, and investment performance
analysis. At trial, Mr. McDougall was qualified as an expert “investment
consultant specializing in investment performance measurement” (SE-373).
Ronald Parks
[208]
Mr. Parks is a Chartered Accountant with Kroll Lindquist Avey. He
submitted an expert report titled “Trust Accounting and Reporting Standards”
(SE-424) and a surrebuttal report (SE-425). Mr. Parks is a designated
specialist in investigative and forensic accounting. He has worked in the area
of investigative and forensic accounting since 1987 (SE-416). At trial, Mr.
Parks was qualified as a “Chartered Accountant who is a Designated Specialist
in Investigative and Forensic Accounting, and an expert in the field of
accounting standards and forensic accounting. He has expertise relating to
generally accepted accounting principles and to accounting and reporting
standards, practices and objectives, including trust accounting and reporting”
(SE-423).
Alan Marchment
[209]
Mr. Marchment’s career spans over forty years as an officer, director,
and trustee of various companies, institutions, and funds. He provided the
Court with an expert report (SE-457), rebuttal report (SE-458), and surrebuttal
report (SE-459). Mr. Marchment’s C.V. reveals that his work experience includes
directly managing funds or advising on investment policy through memberships on
investment committees acting for individuals and corporations (SE–455). Mr.
Marchment was qualified at trial as a “Chartered Accountant with expertise in
the area of trusts, investment management, banking, finance and money
management generally. He has particular expertise with respect to the
management of trust funds, pension funds and endowment funds, including
expertise with respect to trust industry practices and standards such as those
relating to segregation, borrowing, management, investment and monitoring of
trust funds and the formulation of investment policies, procedures, strategies
and objectives” (SE-454).
Alan Hockin
[210]
Mr. Hockin, a former Assistant Deputy Minister of Finance and Executive
Vice-President of the Toronto Dominion Bank, provided the Court with an expert
report (SE-470), rebuttal report (SE-471), and surrebuttal report (SE-472). His
C.V. shows many years of experience and involvement with various institutions’
investment boards or committees (SE-468). Mr. Hockin was qualified as an
“expert in Canadian and International banking, financial management and money
management, including supervision of investments and trust funds. He is also an
expert in investment committee management and the standards and practices of
investment boards and committees including the establishment of investment
policy and the monitoring of performance” (SE-467).
Tony Williams
[211]
Mr. Williams is an actuary with Buck Consultants. He tendered an expert
report (ES‑478), rebuttal report (SE-479) and two surrebuttal reports
(SE-480 and SE-481). Mr. Williams’s C.V. indicates he became fully
qualified as an actuary in 1985, and is a Fellow of the Society of Actuaries
and a Fellow of the Canadian Institute of Actuaries (SE‑474). His
professional memberships include the Association of Canadian Pension
Management, the Canadian Pension and Benefits Institute, and the Investment Practice
Committee of the Canadian Institute of Actuaries. Mr. Williams was qualified at
trial as an “actuary with expertise relating to the application of mathematics,
statistics, probabilities and risk theories to financial problems, including
expertise in the development of models to evaluate the financial implications
of uncertain future events. He also has expertise as an investment consultant
specializing in investment management, investment policy, asset allocation, the
selection of investment managers, investment performance monitoring and pension
fund asset and liability forecasting, with particular expertise in the
management and analysis of private sector and public sector pensions and other
large funds (SE-475).
Arthur Drache
[212]
Mr. Drache, a lawyer specializing in taxation, provided the Court with
an expert report (E-507). His C.V. shows he has been published widely in the
area of taxation, especially as it relates to the arts and charitable
organizations (SE-496). In the past, Mr. Drache has taught at Queen’s
University (1969 to 1973, 1984 to 1988, 2000, and 2002) and the University of
Ottawa (1974 to 1981). At trial, Mr. Drache was qualified as an “expert in the
areas of taxation, tax planning and the tax treatment of charities and
non-profit organizations, with particular expertise in regard to the use of
trusts as a tax planning vehicle. Mr. Drache also has special expertise as a
professor, writer and practitioner in regard to these subject-matters”
(SE-495).
Laurier Perreault
[213]
Mr. Perreault, an actuary and Chartered Financial Analyst, tendered an
expert report (S-518) and a surrebuttal report (SE-512), as well as additional
data updated to December 31, 2003. According to his C.V., Mr. Perreault’s
consulting practice deals with asset management and pension plan liability, as
well as the establishment of investment structure, monitoring, and selecting
money managers (SE-510). Mr. Perreault was qualified at trial as an “actuary
with expertise relating to the application of mathematics, statistics,
probabilities and risk theories to financial problems, including expertise in
the development of models to evaluate the financial implications of uncertain
future events. He is also a Chartered Financial Analyst with expertise as an
investment consultant specializing in investment management, investment policy,
asset allocation, the selection of investment managers, investment performance
monitoring and pension fund asset and liability forecasting, with particular
expertise in the management and analysis of public sector and private sector
pensions and other large funds” (SE-509).
Laurence Booth
[214]
Dr. Booth is a Professor of Finance at the Rotman School of Management at
the University of Toronto. He submitted a rebuttal report (SE-548) and a
surrebuttal report (SE-549). Dr. Booth earned his M.B.A. and D.B.A. from
Indiana University in 1976 and 1978, respectively. His C.V. indicates that his
main teaching areas are domestic and international corporate finance (SE-546).
Dr. Booth’s research focusses on the cost of capital, empirical corporate
finance, and capital market theory. His C.V. also contains an extensive list of
publications. Dr. Booth was qualified at trial as a “Professor of Finance, with
expertise relating to financial market and capital market theory and the
application thereof, including the areas of investment management, investment
policy, investment strategy, investment portfolio construction and asset allocation”
(SE-545).
Derek Malcolm
[215]
Mr. Malcolm, a Chartered Accountant, tendered an expert report titled
“Interest Calculation Errors - Pigeon Lake Capital Account” (SE-625) and a
surrebuttal report titled “Pigeon Lake Account - An Accounting Perspective”
(SE-626). According to his C.V., Mr. Malcolm’s practice has centred
exclusively on forensic and investigative accounting since 1994, and in 2000 he
became a designated specialist (SE-623). At trial, Mr. Malcolm was qualified as
a “Chartered Accountant who is a Designated Specialist in Investigative and
Forensic Accounting, with expertise including generally accepted accounting
principles” (SE-624).
2. For the defendants
Robert Bertram
[216]
Mr. Bertram, Executive Vice-President of the Ontario Teachers Pension
Board, submitted an expert report (C-896), rebuttal report (C-897), and
surrebuttal report (C-898). Mr. Bertram’s C.V. indicates that he is an
investment management executive with experience in all aspects of pension
investment management, and that his background includes time spent as a
director of various private companies (C-894). In his current capacity, Mr.
Bertram is responsible for all aspects of the investment program at Ontario
Teachers, which has assets in the range of $68 billion. Mr. Bertram was
qualified at trial as a “chartered financial analyst and is an expert in the
design, analysis and management of investment portfolios. He has extensive
experience with different types of assets. His expertise covers investment
strategy, policy, valuation and risk management and also covers matching
investment portfolios to expected cash flow” (C-895).
Keith Ambachtsheer
[217]
Mr. Ambachtsheer, President of KPA Advisory Services Ltd., presented the
Court with an expert report (C-910), rebuttal report (C-911), and surrebuttal
report (C-912). His C.V. shows that he earned his M.A. in Economics from
Western University in 1967 (C-905). He is also a co-founder and partner of the
firm Cost Effectiveness Measurement. At trial, Mr. Ambachtsheer was qualified
as an “expert in the following areas relating to large funds of money,
including pension and endowment funds: the structural and organizational
dimensions of institutional investment; financial issues surrounding fund
management; investment policy and strategy; [and] measurement of investment
performance and management costs” (C-909).
Gordon King
[218]
Mr. King, an economist, submitted to the Court an expert report (C-987),
rebuttal report (C-988), and surrebuttal report (C-989). According to his C.V.,
Mr. King earned his M.A. in Economics from Cambridge in 1966 (C-987; Appendix
A). From 1970 until 1980, he held various positions in the Monetary and
Financial Analysis Department at the Bank of Canada. After that, he moved to
the Department of Finance, where he was Director of the Capital Markets
Division and later General Director of the Financial Sector Policy Branch. From
1992 until his retirement in 1995, Mr. King was Advisor and Project Director of
the Department’s review of deposit insurance. Mr. King was qualified at trial
as an “economist with specific expertise in the following areas: debt management,
including specifically government debt management, and the use for that purpose
of both external financing and internal sources of funds; government fiscal and
monetary policy and fiscal operations; [and] financial institutions and
markets” (C-986).
Stewart Scalf
[219]
Mr. Scalf, a Chartered Accountant and Chartered Business Valuator,
provided the Court with a rebuttal report to the calculations conducted by Mr.
T. Williams and Mr. Perreault (C-998) and a summary of financial
calculations, which amended some of the calculations contained in his initial
report (C-999). His C.V. indicates that he practices in the areas of business
valuations, financing, mergers and acquisitions, and the preparation of expert
reports for use in litigation (C-994 and S-995). Mr. Scalf was qualified at
trial as a “chartered accountant and chartered business valuator with expertise
in the areas of collection, quantitative and qualitative assessment and
analysis of financial data, and the application of financial models for those
purposes” (C-997).
John Williams
[220]
Mr. Williams, a Chartered Accountant and Chartered Business Valuator,
tendered a rebuttal report titled “Report on Trust Accounting and Reporting
Standards” (C-1008). His C.V. sets out in detail his experience in accounting
and auditing; conducting investigations for private and public corporations, as
well as various levels of government; and litigation services, where he
determined economic losses, business valuations, and evaluation of insurance
claims (C-1003). Mr. Williams was qualified at trial as a “Chartered
Accountant who is a Designated Specialist in Investigative and Forensic
Accounting and a Chartered Business Valuator, and an expert in the field of
accounting standards and forensic accounting with expertise relating to
generally accepted accounting principles” (C-1004).
ii. Lay
1. For the plaintiffs
Curtis Ermineskin
[221]
Mr. Ermineskin was born and raised on the Ermineskin reserve. He can
trace his ancestry back to the first Chief Ermineskin, who was his
great-great-grandfather. Mr. Ermineskin served five terms as an elected band
councillor, spanning the years 1979 to 1999.
Gordon Lee
[222]
Mr. Lee is an Ermineskin elder. His first job was as chief of the
Ermineskin Nation from 1975 to 1978. He then served as an elected band
councillor for various terms from 1985 until 1996. He was employed as the
band’s director of research until 2002. Since that time, Mr. Lee has been
involved in coordinating the collection of information for various matters for
the band’s chief and council.
Chief George Leslie Minde
[223]
Chief Minde was elected to that position in October 2001. He was raised
on the Ermineskin reserve and can trace his family tree back to the first Chief
Ermineskin (E-798). From 1993 until 1996, he served as the administrator for
Ermineskin Tribal Enterprises. As administrator, he oversaw band operations and
departments that provided programs and services, acted as liaison between chief
and council and the band’s administrative arm, and also dealt with band
members.
Owen Jackson
[224]
Mr. Jackson, a Chartered Accountant, has audited the Four Nations
organization and the Samson Cree Nation since 1988 and 1993, respectively.
2. For the defendants
Dennis Wallace
[225]
Mr. Wallace joined DIAND in 1975. In 1978, he was District Manager in
Kenora, Ontario. In 1981, he worked for one year on the Department’s Management
Improvement Project. Following that, Mr. Wallace moved to Toronto, where he
became Director of Operations, a position he held for four years. From 1985
until 1988, he was a Director General in the Department, based in Edmonton. For
the next ten years, Mr. Wallace continued his career in the federal civil
service, but worked outside of DIAND. In 1998, he returned to DIAND as
Associate Deputy Minister in Ottawa, where he remained until September 2001.
Mr. Wallace ended his career with the government in 2003.
Donald Goodwin
[226]
Mr. Goodwin worked for the Federal Government in various positions from
1967 until his retirement in 1992, and was with DIAND from 1980 until 1992
(C-830). He was Assistant Deputy Minister, Indian and Inuit Affairs from 1980
until 1985. For the next six years, Mr. Goodwin was the Assistant Deputy
Minister, Lands, Revenue and Trusts. During his final year, Mr. Goodwin worked
as a Special Advisor to the Deputy Minister on Indian Act alternatives.
B. Background
[227]
A Surrender of Minerals was executed on behalf of the plaintiffs on June
10, 1946. It reads as follows:
KNOW ALL MEN BY THESE PRESENTS THAT WE, the undersigned
Chief and Principal men of the Ermineskin Band of Indians, resident on our
Reserve Ermineskin No. 138 in the Province of Alberta and Dominion of Canada,
for and acting on behalf of the whole people of our said Band in Council
assembled, Do hereby release, remise, surrender, quit claim and yield up unto
our Sovereign Lord the King, His Heirs and Successors forever, ALL the land
deemed to contain salt, petroleum, natural gas, coal, gold, silver, copper,
iron and other minerals, underlying the surface of the area within the
boundaries of the Ermineskin Reserve ... and such timber contained within the
boundaries of any mineral claim staked or leased in accordance with the
Regulations, as may be necessary for the development and proper working of such
mineral deposits, subject to the payment of stumpage dues thereon; providing
however, that a recorded holder of a mineral claim may, free from dues, lop,
top or cut down trees growing on the mineral claim, removal of which is
necessary for the proper working of the claim.
TO HAVE AND TO HOLD the same unto his said Majesty the
King, his Heirs and Successors, forever, in trust to grant in respect of such
land the right to prospect for, mine, recover and take away any or all minerals
contained therein, to such person or persons, and upon such terms and
conditions as the Government of the Dominion of Canada may deem most conducive
to our welfare and that of our people;
and upon further condition that money received from the
permit proceeds of 10 ¢ per acre to be paid immediately on a per capita
distribution.
AND WE, the said Chief and Principal men of the said
Ermineskin Band of Indians do on behalf of our people and for ourselves, hereby
ratify and confirm, and promise to ratify and confirm, whatever the said
Government may do, or cause to be lawfully done in connection with the
management and operation of the said lands and the disposal and sale of the
minerals contained therein.
(EC-261, tab 72)
[228]
The Crown used a standard printed form for the surrender document. On
the second page of the surrender, a paragraph was crossed out and initialled in
the left margin by Hobbema Indian Agent W.P.B. Pugh, and amended to read,
and upon further condition that money received from the
permit proceeds of 10 ¢ per acre to be paid immediately on a per capita
distribution.
[229]
The part that was crossed out reads,
and upon the further condition that all moneys received
and to which we are entitled by law and pursuant to the surrender, shall be
placed to our credit and interest thereon paid to us in the usual manner.
[230]
By Order-in-Council P.C. 2662-1946, dated June 28, 1946, the Crown
accepted the Surrender so that the mineral interests and accompanying mining
rights could be leased for the benefit of Ermineskin, Samson, Montana, and
Louis Bull (EC-261, tab 80; see also SEC-427, binder 3, tab 5, document 80).
[231]
In 1952, commercial quantities of oil and gas reserves were discovered
underlying the surface of the Pigeon Lake Reserve – known as the Bonnie Glen
D3A pool – and production began in that same year (E-796 and E-797, paras.
24-26).
[232]
The Crown prepared and executed leases with oil and gas companies with
regard to the exploration and extraction rights. Since that time, significant
royalty moneys have been paid to the Crown on behalf of Ermineskin (E-796 and
E-797, paras. 22 and 29).
[233]
The Crown treats Ermineskin’s’s royalty moneys as “public moneys”
pursuant to the Financial Administration Act, R.S.C. 1985, c. F-11 and,
upon receipt by the Receiver General, they are deposited into the Consolidated
Revenue Fund (CRF) (E-796 and E-797, para. 35).
[234]
The Crown maintains public accounts, which are published annually in a
series of volumes called “Public Accounts of Canada.” These contain the audited
financial statements of the federal government. As part of these accounts and for
the purposes of its annual financial statements, the Crown maintains and
reports on “Specified Purpose Accounts.” Specified Purpose Accounts include the
Canada Pension Plan Account, the Federal Public Service Superannuation Account
(PSSA), and Trust Accounts (E-796 and E-797, paras. 42-45).
[235]
The Crown treats revenues from non-renewable resources on Indian
reserves as “capital moneys” and revenue from renewable resources as “revenue
moneys.” The Crown treats production stemming from oil and gas from Indian
reserves as a non-renewable resource (E-796 and E-797, paras. 48 and 49).
[236]
The Crown reports on the plaintiffs’ royalty moneys by reference to
“Indian Band Funds – Capital Accounts” and it reports on the interest it pays
on the capital and revenue accounts by reference to “Indian Band Funds –
Revenue Accounts” (E-796 and E-797, para. 50).
[237]
The Crown reports on the capital and revenue accounts as a liability in
the Public Accounts of Canada. The Crown treats the amount of these accounts as
a liability within the Specified Purpose Accounts and there is no corresponding
asset. The Crown treats this liability as an internal borrowing and as a part
of the public debt. The interest credited by the Crown in respect of
Ermineskin’s royalty moneys is treated by the Crown as interest on the public
debt (E-796 and E-797, paras. 51 and 40).
[238]
The system used by the Crown to calculate interest on the capital and
revenue accounts can be summarized as follows:
(a) From Confederation to December 31, 1882, the annual
interest rate was fixed at 5%.
(b) From January 1, 1883 to June 30th, 1892,
the annual interest rate was fixed at 4%.
(c) From July 1st, 1892 to December 31st,
1897, the annual interest rate was fixed at 3 ½%.
(d) From January 1st, 1898 to March 31st,
1917, the annual interest rate was fixed at 3%.
(e) From April 1st, 1917 to March 31st,
1969, the annual interest rate was fixed at 5%.
(f) Since 1969, Capital and Revenue Accounts respecting
the Ermineskin Plaintiffs and the Pigeon Lake Account as well as the Capital
and Revenue Accounts respecting all other Indian Bands in Canada have been
credited by the Crown with interest determined by Order-in-Council at a rate
calculated with reference to formulas ... .
(g) From April 1,1969, the method of determining the
interest rate on moneys to the credit of Ermineskin Plaintiffs in respect to
the Capital or Revenue Accounts respecting the Ermineskin Plaintiffs, and in
respect to the Pigeon Lake Account, has been by reference to average market
yields of Government of Canada Bonds of 10 years or more to maturity. This
method is used in both the 1969 and 1981 Orders-in-Council (P.C. 1969-1934;
P.C. 1981-3/255) ... .
(h) Under the 1969 Order-in-Council, the monthly
average of the market yields of the Government of Canada bond issues was
prescribed in determining the rate of interest. Under the 1981 Order-in-Council
the quarterly average of such market yields was prescribed.
(i) The methods of calculating interest from 1969 to
1980 varied. From the period of April 1, 1969 to March 31, 1974, interest was
calculated and credited by the Crown on the basis of the opening balance in the
Ermineskin Plaintiffs’ accounts as of April 1 of each year.
(j) From April t, 1974 to March 31, 1980
interest was credited in “advance” at the beginning of each fiscal year and
adjusted at the end of each fiscal year. The interest “credited” in advance was
calculated on the April 1st balance, using an “advance” interest
rate. The adjustment was determined by comparing the amount of the “advance” to
the amount of the interest “earned” during the fiscal year. The interest
“earned” was calculated as follows. The annual average month end balances were
determined, from which the interest “advance” was then deducted. The actual
average annual rate of interest was then applied to determine the interest
“earned” for the year. The interest “earned” for the year would then have the
interest “advance” deducted from it to arrive at the final interest adjustment,
which was recorded at the end of the fiscal year. This adjustment could be
positive or negative.
(k) From April, 1980 to the present, the interest has
been calculated on the quarterly average month-end balances and compounded
semi-annually.
(l) Under the 1981 Order-in-Council, interest is not
paid in “advance” but is credited semi-annually based on interest rates and
average month-end balances as determined for each quarter.
(E-796 and E-797, para. 56)
[239]
The first of the Orders-in-Council referred to above, Order-in-Council
P.C. 1969-1934, was issued effective April 1, 1969. Its Appendix provides:
Interest to be paid on Indian Band funds held in the
Consolidated Revenue Fund which represent capitalized annuities at the time of
Confederation and proceeds from the sale of Indian assets since that time,
pursuant to subsection (2) of Section 61 of the Indian Act, at a rate equal to
the monthly average of those market yields of Government of Canada bond issues
as published each Wednesday by the Bank of Canada as part of its weekly
financial statistics which have terms to maturity of 10 years or over, the appropriate
rate for calculating and crediting interest on the opening balance as of April
1 in each year in accordance with Treasury Board Minute No. 678135 of March 29,
1968 to be the monthly average of the preceding month together with an
adjustment to correct for the amount by which rates during the course of the
previous year will have varied from the rate established at the commencement of
that year.
(SEC-427, binder 7, tab 36, document 286)
[240]
The second one, Order-in-Council P.C. 1981-3/255, is dated January 29,
1981 and reads:
HIS EXCELLENCY THE GOVERNOR GENERAL IN COUNCIL, on the
recommendation of the Minister of Indian Affairs and Northern Development and
the Treasury Board, pursuant to subsection 61(2) of the Indian Act, is pleased
hereby to revoke Order in Council P.C. 1969-1934 of the 8th of
October, 1969 and to fix the rate of interest to be allowed, commencing the 1st
day of April, 1980, on Indian Bands’ Revenue and Capital moneys held in the
Consolidated Revenue Fund at the quarterly average of those market yields of
the Government of Canada bond issues as published each Wednesday by the Bank of
Canada as part of its weekly financial statistics, which have terms to maturity
of 10 years or over.
(SEC-427, binder 18, tab 3, document 602)
C.
Legislative Framework
[241]
I shall now outline the various provisions of the Indian Act,
R.S.C. 1985, c. I-5, the Financial Administration Act, and the Indian
Oil and Gas Act, R.S.C. 1985, c. I-7, as well as the Orders in Council
relating to the Indian moneys regime.
[242]
Sections 61 through 69 of the Indian Act are grouped under the
heading “Management of Indian Moneys.” Under section 2(1) of the Act, “Indian
moneys” are defined as “all moneys collected, received or held by Her Majesty
for the use and benefit of Indians or bands.” Section 61 reads as follows:
61. (1) Indian moneys to be held for use and benefit –
Indian moneys shall be expended only for the benefit of the Indians or bands
for whose use and benefit in common the moneys are received or held, and
subject to this Act and to the terms of any treaty or surrender, the Governor
in Council may determine whether any purpose for which Indian moneys are used
or are to be used is for the use and benefit of the band.
(2) Interest – Interest on Indian moneys held in the
Consolidated Revenue Fund shall be allowed at a rate to be fixed from time to
time by the Governor in Council.
[243]
Section 62 divides Indian moneys into capital and revenue:
62. Capital and revenue – All Indian moneys derived
from the sale of surrendered lands or the sale of capital assets of a band
shall be deemed to be capital moneys of the band and all Indian moneys other
than capital moneys shall be deemed to be revenue moneys of the band.
[244]
Section 64 governs the expenditure of capital moneys:
64. (1) Expenditure of capital moneys with consent –
With the consent of the council of a band, the Minister may authorize and
direct the expenditure of capital moneys of the band
(a) to distribute per capita to the members of the band
an amount not exceeding fifty per cent of the capital moneys of the band
derived from the sale of surrendered lands;
(b) to construct and maintain roads, bridges, ditches
and watercourses on the reserves or on surrendered lands;
(c) to construct and maintain outer boundary fences on
reserves;
(d) to purchase land for use by the band as a reserve
or as an addition to a reserve;
(e) to purchase for the band the interest of a member
of the band in lands on a reserve;
(f) to purchase livestock and farm implements, farm
equipment or machinery for the band;
(g) to construct and maintain on or in connection with
a reserve such permanent improvements or works as in the opinion of the
Minister will be of permanent value to the band or will constitute a capital
investment;
(h) to make to members of the band, for the purpose of
promoting the welfare of the band, loans not exceeding one-half of the total
value of
(i) the chattels owned by the borrower, and
(ii) the land with respect to which he holds or is
eligible to receive a Certificate of Possession,
and may charge interest and take security therefor;
(i) to meet expenses necessarily incidental to the
management of lands on a reserve, surrendered lands and any band property;
(j) to construct houses for members of the band, to
make loans to members of the band for building purposes with or without
security and to provide for the guarantee of loans made to members of the band
for building purposes; and
(k) for any other purpose that in the opinion of the
Minister is for the benefit of the band.
[245]
Sections 66 and 69 relate to the expenditure of revenue moneys:
66. (1) Expenditure of revenue moneys with consent of
band – With the consent of the council of a band, the Minister may authorize
and direct the expenditure of revenue moneys for any purpose that in the
opinion of the Minister will promote the general progress and welfare of the
band or any member of the band.
69. (1) Management of revenue moneys by band – The
Governor in Council may by order permit a band to control, manage and expend in
whole or in part its revenue moneys and may amend or revoke any such order.
(2) Regulations – The Governor in Council may make
regulations to give effect to subsection (1) and may declare therein the extent
to which this Act and the Financial Administration Act shall not apply
to a band to which an order made under subsection (1) applies.
[246]
No section similar to section 69 exists allowing a band to control,
manage, and expend its capital moneys.
[247]
The Financial Administration Act defines “public money” in
section 2 as follows:
“public money” means all money belonging to Canada
received or collected by the Receiver General or any other public officer in
his official capacity or any person authorized to receive or collect such
money, and includes
(d) all money that is paid to or received or collected
by a public officer under or pursuant to any Act, trust, treaty, undertaking or
contract, and is to be disbursed for a purpose specified in or pursuant to that
Act, trust, treaty, undertaking or contract.
[248]
Section 17 of that same Act requires all public money to be deposited to
the credit of the Receiver General. Section 2 defines the “Consolidated Revenue
Fund” as “the aggregate of all public moneys that are on deposit at the credit
of the Receiver General.” Thus, if Indian moneys are considered public moneys –
as will be discussed later – they must be deposited in the CRF and subsequently
receive interest pursuant to section 61(2) of the Indian Act.
[249]
Turning to the Indian Oil and Gas Act, the important provision,
for our purposes, is section 4(1), which governs royalties:
4. (1) Notwithstanding any term or condition in any
grant, lease, permit, licence or other disposition or any provision in any
regulation respecting oil or gas or both oil and gas or the terms and
conditions of any agreement respecting royalties in relation to oil or gas or
both oil and gas, whether granted, issued, made or entered into before or after
December 20, 1974, but subject to subsection (2), all oil and gas obtained from
Indian lands after April 22, 1977 is subject to the payment to Her Majesty in
right of Canada, in trust for the Indian bands concerned, of the royalties
prescribed from time to time by the regulations.
[250]
The Indian Oil and Gas Act was assented to on December 20, 1974.
Previously, oil and gas production on Indian lands was governed by regulations
under the Indian Act, which were similar to Alberta’s regulations
concerning exploration, drilling, and production.
[251]
Section 61(2), as noted above, provides that the Governor in Council
shall establish the interest rate to be paid on Indian moneys held in the CRF.
From the time of the 1946 Surrender until March 31, 1969, the rate of interest
was set at 5%. Since 1969, the Crown has paid interest pursuant to a formula
set out in two Orders-in-Council, issued in 1969 and 1981. The first of these,
Order-in-Council P.C. 1969-1934, was issued effective April 1, 1969; its
Appendix reads as follows:
Interest to be paid on Indian Band funds held in the
Consolidated Revenue Fund which represent capitalized annuities at the time of
Confederation and proceeds from the sale of Indian assets since that time,
pursuant to subsection (2) of Section 61 of the Indian Act, at a rate equal to
the monthly average of those market yields of Government of Canada bond issues
as published each Wednesday by the Bank of Canada as part of its weekly
financial statistics which have terms to maturity of 10 years or over, the
appropriate rate for calculating and crediting interest on the opening balance
as of April 1 in each year in accordance with Treasury Board Minute No. 678135
of March 29, 1968 to be the monthly average of the preceding month together
with an adjustment to correct for the amount by which rates during the course
of the previous year will have varied from the rate established at the
commencement of that year.
(SEC-427, binder 7, tab 36, document 286)
[252]
The second one, Order-in-Council P.C. 1981-3/255, was issued in January
1981 and provides:
HIS EXCELLENCY THE GOVERNOR GENERAL IN COUNCIL, on the
recommendation of the Minister of Indian Affairs and Northern Development and
the Treasury Board, pursuant to subsection 61(2) of the Indian Act, is pleased
hereby to revoke Order in Council P.C. 1969-1934 of the 8th of
October, 1969 and to fix the rate of interest to be allowed, commencing the 1st
day of April, 1980, on Indian Bands’ Revenue and Capital moneys held in the
Consolidated Revenue Fund at the quarterly average of those market yields of
the Government of Canada bond issues as published each Wednesday by the Bank of
Canada as part of its weekly financial statistics, which have terms to maturity
of 10 years or over.
(SEC-427, binder 18, tab 3, document 602)
[253]
The 1969 and 1981 Orders-in-Council are quite similar; the difference
between them arises in the manner in which interest is calculated. In 1969,
monthly averages of certain Government of Canada bond issues were used, whereas
in 1981, that was changed to quarterly averages. While the rate is short-term
in the sense that it floats and is subject to change – by 1981 – every 90 days,
the rate nonetheless is based on long-term bond issues.
[254]
The Crown treats all Indian band accounts in the same manner in that
they are all subject to the same interest rate methodology, regardless of their
balances.
[255]
Before moving on, I find it useful to briefly review some history behind
the moneys regime of the Indian Act. In a letter to the Deputy Minister
of Finance, dated August 28, 1969, the Deputy Minister of Indian Affairs and
Northern Development, J.A. MacDonald, provides an overview of interest rates
paid on Indian moneys in the past. The letter, which advocates for an increase
to the interest rate paid on Indian moneys, reads in part,
The fund had its beginning with the settlement of Upper
Canada and the surrender for sale of Indian lands in that Province. The moneys
were at first held by the Receiver General for investment in commercial
securities, municipal debentures, etc. In the year 1859 by Order-in-Council
dated August 25th the Government assumed these investments which at
that time were producing a uniform revenue of 6%.
By Order-in-Council dated September 24, 1861, the
amount of 6% was guaranteed on that portion of the fund invested, and 5% on new
credits. The payment of interest at the rate of 5% was continued until the year
1883 when it was reduced to 4%. There was no reduction made in that part on
which 6% was paid, nor was there any reduction on the rate paid on the
capitalized annuities amounting to $620,400.10.
In 1892 the 4% rate was reduced to 3 ½%, and in 1898
was further reduced to 3%. These reductions were made by reason of the continued
fall in the value of money, and the resulting decreases from time to time in
the rate of interest paid to the depositors on bank savings accounts. As of
April 1, 1917, however, due to a general advance in the rate of interest in
Canada, the rate paid was increased to 5%, at which it still remains.
(EC-429, binder 6, tab 40, document 167)
[256]
With regard to the August 25, 1859 Order-in-Council, a document signed
by John A. Macdonald on the same date shows the government’s concern with the
system, which at that time involved actual investments. Macdonald’s letter
reads in part,
In dealing with the Indians of whom the Government has
constituted itself the Guardian, it would appear desirable so to secure the
funds as to prevent the possibility of any failure in the payment of the Annual
Sums required for the Indians, as such failure would certainly be attributed to
a breach of faith on the part of the Government and could more be explained to
the satisfaction of the Tribes. By maintaining the present system of
investment, it might also result that one Tribe would find its Annual interests
regularly paid, while others would meet with disappointment. Should such an
event arise, Parliament would probably find it necessary to make good the
losses of the Trust, and it would therefore be more advisable to carry the
funds at the credit of the Trust to the Consolidated Fund, and to charge the
annual interest upon that Fund at such scale as might appear equitable to the
Legislature.
Further receipts on account of the
Indians might be kept at their Credit in account with the Receiver General –
allowing the Trust Six per cent interest thereon pending the decision of
Parliament on the general Subject.
(SEC-427, binder 1, tab 20, document 20, pp. 1-2)
[257]
Thus arose the practice, which continues today, of depositing Indian
moneys into the CRF and paying a rate of interest, as opposed to purchasing
marketable securities. However, for a time, the Act provided authority for the
Crown to purchase actual investments with Indian moneys. The Indian Act,
R.S.C. 1927, c. 98 provided:
92. With the exception of such sum not exceeding fifty
per centum of the proceeds of any land, timber or other property, as is agreed
at the time of surrender to be paid to the members of the Band interested
therein, the Governor in Council may, subject to the provisions of this Part,
direct how and in what manner, and by whom, the moneys arising from the
disposal of Indian lands, or of property held or to be held in trust for
Indians, or timber on Indian lands or reserves, or from any other source for
the benefit of Indians, shall be invested from time to time, and how the
payments or assistance to which the Indians are entitled shall be made or
given.
[258]
This legislative power to invest Indian moneys was repealed following
the enactment of the 1951 Indian Act, S.C. 1951 c. 29. The Act, insofar
as it relates to the moneys regime, has remained essentially unchanged since
1951.
D. Crown’s
Obligations and Duties
[259]
The Crown concedes that it holds the Indian moneys as a trustee (Written
Closing Argument of the Crown, Moneys Phase, Volume 1, tab 2, p. 1). However,
the Crown argues that the legislation informs its obligations and duties, and
contends that, in any event, its conduct should not be judged against the
standard of a private law trustee.
[260]
The plaintiffs contend that the Crown is indeed a true trustee and urge
the Court to hold the Crown liable for its failure to actively manage their
funds in the same manner as a private law trustee. This failure, according to
the plaintiffs, resulted in a less than adequate, or reasonable, return being
earned by their funds. The plaintiffs submit that, in the alternative, if the
Crown was not permitted to make actual investments with the funds, then the
rate of return should have been commensurate with that which might have been
earned by making actual investments in the market. The plaintiffs suggest that
this could have been done by linking the interest rate formula to a benchmark
portfolio or market indices of various types. Much expert evidence was
presented to the Court on the sorts of actual or notional investments that the
plaintiffs submit the Crown should have made with their funds.
[261]
I agree that the Crown is a trustee insofar as the Indian moneys at
issue in this action are concerned, and that those moneys are trust funds. Even
if the Crown had not admitted the obvious, I would, in any event, have found it
to be a trustee.
[262]
The Indian Act defines “Indian moneys” in section 2(1) as
follows,
“Indian moneys” means all moneys collected, received or
held by Her Majesty for the use and benefit of Indians or bands.
[263]
The Financial Administration Act defines “public money” in its
section 2 as follows,
“public money” means all money belonging to Canada
received or collected by the Receiver General or any other public officer in
his official capacity or any person authorized to receive or collect such
money, and includes
(a) duties and revenues of Canada,
(b) money borrowed by Canada or received through the
issue or sale of securities,
(c) money received or collected for or on behalf of
Canada, and
(d) all money that is paid to or received or collected
by a public officer under or pursuant to any Act, trust, treaty, undertaking or
contract, and is to be disbursed for a purpose specified in or pursuant to that
Act, trust, treaty, undertaking or contract.
[264]
At first glance, the public money definition seems to exclude Indian
moneys through the use of the words “belonging to Canada.” It cannot be argued
that the Indian moneys at issue belong to the Crown. The Crown clearly
has no beneficial interest in those moneys. However, the use of the words “and
includes” has the effect of expanding the ambit of the definition.
[265]
Further on this point, I note Callie v. Canada, [1991] 2
F.C. 379, which involved a class action for damages for breach of trust or
fiduciary duty by the Crown in its administration of war veterans’ pension
funds from 1946 to 1986. The Department of Veterans Affairs deposited the
pension moneys to the credit of the Receiver General. The plaintiff argued that
the pension funds were not public money within the meaning of the Financial
Administration Act and thus were not subject to that Act. Justice Joyal
considered the meaning of the public moneys definition and held that an expansive
interpretation of that section was appropriate, given its use of the word
“includes.” Those words amplify the meaning of the preceding words. I agree
with his words at p. 397 and make them mine:
As was pointed out in Nova, supra, when
the word “includes” is used in a definition, it is used to amplify or extend
the ordinary meaning of the term being defined. That is precisely what
paragraph 2(d) of the Financial Administration Act accomplishes
in the present case. The term “public money” has been enlarged to include sums
of money which might not otherwise come within the ordinary or everyday meaning
of that term.
[266]
I note further that section 61(2) of the Indian Act contemplates
the holding of Indian moneys in the Consolidated Revenue Fund. Such funds would
not be held in the CRF if Parliament did not also intend for them to be
considered as public money. Accordingly, Indian moneys are public moneys for
the purposes of the Financial Administration Act and that they must be
deposited into the CRF, pursuant to section 17(1) of that Act. However, I also
note that even though Indian moneys are considered public money, it does not
follow that they lose their character as trust funds.
[267]
My opinion that the Crown is a trustee for the Indian moneys is further
based on the reasoning of Dickson J. in Guerin v. The Queen,
[1984] 2 S.C.R. 335. Guerin is a watershed decision in that the Supreme
Court found the Crown liable for breach of its fiduciary duty to an Indian band
with regard to the disposition of part of the band’s reserve on terms less
favourable than those approved by the band. The Court flatly rejected the old
notion of a judicially unenforceable political trust as inapplicable. Instead,
the Crown was subject to a fiduciary duty, which courts could supervise and
enforce. Dickson J. held, at p. 376 that the origin of this duty lies in the proposition
that the aboriginal interest in land is inalienable except upon surrender to
the Crown:
The fiduciary relationship between the Crown and the
Indians has its roots in the concept of aboriginal, native or Indian title. The
fact that Indian Bands have a certain interest in lands does not, however, in
itself give rise to a fiduciary relationship between the Indians and the Crown.
The conclusion that the Crown is a fiduciary depends upon the further
proposition that the Indian interest in the land is inalienable except upon
surrender to the Crown.
An Indian Band is prohibited from
directly transferring its interest to a third party. Any sale or lease of land
can only be carried out after a surrender has taken place, with the Crown then
acting on the Band’s behalf. The Crown first took this responsibility upon
itself in the Royal Proclamation of 1763. It is still recognized in the
surrender provisions of the Indian Act. The surrender requirement, and
the responsibility it entails, are the source of a distinct fiduciary
obligation owed by the Crown to the Indians.
[268]
Further on, Dickson J. held, at p. 383, that the essential obligation of
the Crown was to prevent exploitation:
(c) The Crown’s Fiduciary Obligation
The concept of fiduciary obligation originated long ago
in the notion of breach of confidence, one of the original heads of
jurisdiction in Chancery. In the present appeal its relevance is based on the
requirement of a “surrender” before Indian land can be alienated.
The Royal Proclamation of 1763 provided that no private
person could purchase from the Indians any lands that the Proclamation had
reserved to them, and provided further that all purchases had to be by and in
the name of the Crown, in a public assembly of the Indians held by the governor
or commander-in-chief of the colony in which the lands in question lay. As Lord
Watson pointed out in St. Catherine’s Milling, supra, at p. 54,
this policy with respect to the sale or transfer of the Indians’ interest in
land has been continuously maintained by the British Crown, by the governments
of the colonies when they became responsible for the administration of Indian
affairs, and, after 1867, by the federal government of Canada. Successive
federal statutes, predecessors to the present Indian Act, have all
provided for the general inalienability of Indian reserve land except upon
surrender to the Crown, the relevant provision is the present Act being ss.
37-41.
The purpose of this surrender requirement is clearly to
interpose the Crown between the Indians and prospective purchasers or lessees
of their land, so as to prevent the Indians from being exploited. This is made
clear in the Royal Proclamation itself, which prefaces the provision making the
Crown an intermediary with a declaration that “great Frauds and Abuses have
been committed in purchasing Lands of the Indians, to the great Prejudice of
our Interests, and to the great Dissatisfaction of the said Indians ... .”
[269]
Dickson J. aptly characterized the relationship, at p. 385, as sui
generis, trust-like in nature, but not a true trust, insofar as land is
concerned.
[270]
The minority in Guerin, per Wilson J. at p. 355, found that the
Crown’s fiduciary duty, which existed at large, to hold the reserve land for
the band’s use and benefit, crystallized into an express trust of land for a
specific purpose upon the surrender. Dickson J., however, refused to define the
Crown’s obligations in that case as a trust. He held, at p. 388:
I agree with Le Dain J. that before surrender the Crown
does not hold the land in trust for the Indians. I also agree that the Crown’s
obligation does not somehow crystallize into a trust, express or implied, at
the time of the surrender. The law of trusts is a highly developed, specialized
branch of the law. An express trust requires a settlor, a beneficiary, a trust
corpus, words of settlement, certainty of object and certainty of obligation.
Not all of these elements are present here. Indeed, there is not even a trust
corpus. As the Smith decision, supra, makes clear, upon
unconditional surrender the Indians’ right in the land disappears. No property
interest is transferred which could constitute the trust res, so that
even if the other indicia of an express or implied trust could be made
out, the basic requirement of a settlement of property has not been met.
Accordingly, although the nature of Indian title coupled with the discretion
vested in the Crown are sufficient to give rise to a fiduciary obligation,
neither an express nor an implied trust arises upon surrender.
[271]
In the case at bar, the Crown holds the Indian moneys, pursuant to
section 61(1) of the Indian Act, for the “use and benefit” of Indians or
bands; the funds may only be expended for their “benefit.” At the very least,
this gives rise to a fiduciary obligation. However, in my opinion, insofar as
Indian moneys are concerned, a trust corpus, or res, exists. The Indian
moneys, derive from the disposition of an interest in land, in the case at bar,
through the 1946 Surrender. In Guerin, upon the surrender of the land,
the band’s right in the land disappeared; nothing more remained that could
constitute the trust corpus. In the instant case, however, the disposition of
the plaintiffs’ interest in the land leads to the royalty moneys, which form
the trust corpus.
[272]
As for the source of this trust, I do not agree with the plaintiffs’
assertion that the trust arises from either the historical relationship between
the Crown and aboriginal people, or Treaty 6. In my opinion, the treaty is of
no assistance in this matter. It does not speak to the issue of how Indian
moneys are to be held and administered. The only part of the treaty that may
possibly pertain to this issue – and it is a most tenuous connection at best –
is the clause dealing with reserve creation. That part of Treaty 6 reads as
follows:
And Her Majesty the Queen hereby agrees and undertakes
to lay aside reserves for farming lands, due respect being had to lands at
present cultivated by the said Indians, and other reserves for the benefit of
the said Indians, to be administered and dealt with for them by Her Majesty’s
Government of the Dominion of Canada, provided all such reserves shall not
exceed in all one square mile for each family of five, or in that proportion
for larger or smaller families, in manner following, that is to say: –
That the Chief Superintendent of Indian Affairs shall
depute and send a suitable person to determine and set apart the reserves for
each band, after consulting with the Indians thereof as to the locality which
may be found to be most suitable for them;
Provided, however, that Her Majesty reserves the right
to deal with any settlers within the bounds of any lands reserved for any band
as she shall deem fit, and also that the aforesaid reserves of land or any
interest therein may be sold or otherwise disposed of by Her Majesty’s
Government for the use and benefit of the said Indians entitled thereto, with
their consent first had and obtained; and with a view to show the
satisfaction of Her Majesty with the behavior and good conduct of her Indians,
she hereby, through her Commissioners, makes them a present of twelve dollars
for each man, woman and child belonging to the bands here represented, in
extinguishment of all claims heretofore preferred.
(S-4, pp. 352-353; underlining is mine)
[273]
Morris also made some remarks to the Cree during the treaty talks on
this matter of selling reserves or portions of reserves. Commission Secretary
Jackes recorded Morris’s comments:
“There is one thing I would like to say about the
reserves. The land I name is much more than you will ever be able to farm, and
it may be that you would like to do as your brothers where I came from did.
They, when they found they had too much land, asked the
Queen to sell it for them; they kept as much as they could want, and the price
for which the remainder was sold was put away to increase for them, and many
bands now have a yearly income from the land.
But understand me, once the reserve is set aside, it
could not be sold unless with the consent of the Queen and the Indians; as long
as the Indians wish, it will stand there for their good; no one can take their
homes.”
(S-4, p. 205)
[274]
In my opinion, both the reserve clause in Treaty 6 and Morris’s remarks
cannot be relied on as the source of the trust. At the time Treaty 6 was
signed, the Indian moneys that are the subject matter of this action did not
exist. They came into being subsequent to the execution of the 1946 Surrender
of Minerals document. The words contained in that document are sufficient to
create a trust: there are certainties of intent, subject-matter, and object.
The agreement explicitly contemplates a trust; the subject-matter is the
royalty moneys; and the object, or beneficiary, is clearly the plaintiffs.
[275]
Having discussed the Crown as a trustee for Indian moneys, I will now
examine the nature of its obligations as such.
[276]
Many of the duties owed by a trustee are similar to those of a fiduciary.
The trustee may not realize a profit from its custody of the trust property, or
misuse it in any way. The trustee owes a duty of loyalty and good faith to the
beneficiary. The trustee also owes a duty to be evenhanded as between different
beneficiaries. However, unlike a fiduciary, a trustee owes a positive duty to
invest the corpus – or, put another way, make it productive – when the corpus
is a wasting asset, such as money. The trust corpus may not lie fallow. This is
the duty to invest.
[277]
The standard of care applicable to a trustee carrying out the
administration of a trust was set out by the Dickson J. in Fales et al. v.
Canada Permanent Trust Company, [1977] 2 S.C.R. 302 at p. 315:
Traditionally, the standard of care and diligence
required of a trustee in administering a trust is that of a man of ordinary
prudence in managing his own affairs (Learoyd v. Whiteley
[(1887), 12 App. Cas. 727], at p. 733; Underhill’s Law of Trusts and Trustees,
12th ed., art. 49; Restatement of the Law on Trusts, 2nd
ed., para. 174) and traditionally the standard has been applied equally to
professional and non-professional trustees. The standard has been of general
application and objective though, at times, rigorous.
[278]
Thus, the standard of care, in terms of the duty to invest, is that of
reasonable care and skill of an ordinary prudent person.
[279]
The plaintiffs contend that the Crown did not fulfill its duty to invest
and that the Crown should have either made actual investments in the market
with their funds, or tied the interest rate to benchmarks or market indices.
The plaintiffs assert that section 61(2) of the Indian Act does not
require that Indian moneys be held in the CRF. Ermineskin submits that the
purpose of section 61(2) is to ensure that, if the Crown does hold Indian
moneys in the CRF, then the Crown must pay interest at an appropriate rate,
consistent with its duties as trustee or fiduciary regarding those moneys.
[280]
I cannot agree with Ermineskin’s submission regarding section 61(2) of
the Indian Act. I am satisfied that the legislation informs the Crown’s
duties as trustee for Indian moneys. There is no doubt that the royalty moneys
are to be held in trust. That language appears in the 1946 Surrender and later
in section 4 of the Indian Oil and Gas Act. Although that piece of
legislation was enacted in 1974 and royalties had been collected by the Crown
long before that date, the Indian Oil and Gas Act found its genesis in
the world oil crisis of 1973. Section 4 and the words “in trust” confirm what
was an already existing situation and in no way altered the manner in which the
funds were to be held and administered.
[281]
While section 4 of the Indian Oil and Gas Act confirms the trust,
the characterization of Indian moneys as public money within the meaning of
section 2 of the Financial Administration Act means that they must be
deposited into the CRF, pursuant to section 17. Section 61(2) of the Indian
Act mandates that they be paid interest at a rate to be determined by the
Governor in Council. There is no choice in whether or not to pay interest: the
Crown must do so. However, the Crown also has discretion in fixing the rate.
[282]
No legal authority exists that would permit the Minister to purchase
investments with Indian moneys, instead of paying a rate of interest. Recall
that when the Indian Act was amended in 1951, the power to make
investments, under section 92, was specifically removed.
[283]
In paying a rate of interest to the Indian moneys pursuant to section
61(2) of the Indian Act, I am satisfied that the Minister has discharged
his duty as a trustee to invest the trust corpus. In fixing a rate of interest
– or investing – the trustee’s duty is not to maximize profits. If that
was the case, then any trustee failing to earn the maximum possible on property
entrusted to her, would be liable for breach of trust. Rather, the standard
that applies to the duty to invest is that of reasonableness. The trustee must,
of course, act prudently. In the case of the Indian moneys, the rate of
interest is tied to long-term Government of Canada bonds. The money is not
committed to remain in the CRF for any specified period of time and may be
withdrawn, subject to the parameters established by section 64 of the Indian
Act. I am satisfied that the rate of interest meets the reasonableness
standard for assessing a trustee’s conduct.
[284]
The plaintiffs also contend that the Crown is in breach of its duty as a
trustee not to commingle their money with its own by depositing the Indian
moneys into the CRF. I have already found that the Crown may rely on the
legislation in carrying out its duties as a trustee. The legislation requires
that Indian moneys be deposited into the CRF. While in a sense they are
commingled, the Crown keeps accounts for the Indian moneys. As I noted earlier
in these Reasons, the Crown reports on the royalty moneys by reference to
“Indian Band Funds – Capital Accounts.” The Crown reports on the interest it
pays on the capital and revenue accounts by reference to “Indian Band Funds –
Revenue Accounts” (E-796 and E-797, para. 50). The duty to keep trust property
separate exists so as to protect the property – perhaps from embezzlement or
misappropriation – and prevent it from losing its identity. In the instant
case, the trustee is the Crown and the Crown cannot be said to an akin to an
ordinary trustee in every possible way. The plaintiffs’ moneys are deposited
into the Consolidated Revenue Fund; however, they are reported on and accounted
for separately. There is no danger that the moneys are unaccessible or that the
Crown will be unable to pay them out. Accordingly, I find there is no breach by
the Crown of its duties by depositing the Indian moneys into the CRF.
[285]
Since I have found that the Crown may – and indeed must – rely on the
legislation, as it informs and defines the Crown’s duty as trustee, I need not
review or comment on the wealth of expert evidence presented to me on the
industry standards, norms, and practices of commercial trustees.
E. Unjust
Enrichment Claim
[286]
The plaintiffs make a claim for equitable disgorgement of the profit or
benefit which they allege the Crown has gained through its access to and use of
their moneys. Ermineskin also submits that a claim for unjust enrichment is
applicable in the circumstances of this case.
[287]
The Crown contends that the definition of “public money” in section 2 of
the Financial Administration Act includes “Indian moneys”:
2. In this Act,
“public money” means all money belonging to Canada
received or collected by the Receiver General or any other public officer in
his official capacity or any person authorized to receive or collect such
money, and includes
(d) all money that is paid to or received or collected
by a public officer under or pursuant to any Act, trust, treaty, undertaking or
contract, and is to be disbursed for a purpose specified in or pursuant to that
Act, trust, treaty, undertaking or contract.
[288]
The Crown submits that since Indian moneys are public money, then
pursuant to section 17(1) of the Financial Administration Act, they
“shall be deposited to the credit of the Receiver General.” This means that the
royalty moneys must be held in the CRF and, pursuant to section 61(2) of the Indian
Act, interest must be paid on them.
[289]
The Crown submits that if section 61(2) and the Orders-in-Council issued
pursuant to it are found to be valid, then this constitutes an insurmountable
obstacle for the plaintiffs’ unjust enrichment claim.
[290]
In the recent Supreme Court decision in Garland v. Consumers’
Gas Co., [2004] 1 S.C.R. 629, Justice Iacobucci held at para. 30,
As a general matter, the test for unjust enrichment is
well established in Canada. The cause of action has three elements: (1) an
enrichment of the defendant; (2) a corresponding deprivation of the plaintiff;
and (3) an absence of juristic reason for the enrichment (Pettkus v. Becker,
[1980] 2 S.C.R. 834, at p. 848; Peel (Regional Municipality) v. Canada,
[1992] 3 S.C.R. 762, at p. 784).
[291]
Because I have found the Crown to be a trustee for Indian moneys and
that it may rely on the money management provisions of the Indian Act to
carry out its duties as a trustee, that leads to the conclusion that there can
be no unjust enrichment claim. The Crown has paid the proper amount of interest
and the plaintiffs have therefore suffered no deprivation within the confines
of the existing legislative regime. Moreover, section 61(2) amounts to a
juristic reason. However, in the event that I am incorrect in finding that the
Crown may rely on the legislation, I shall briefly consider the three elements
necessary for an unjust enrichment claim to succeed.
[292]
With regard to the first element, enrichment, the plaintiffs contend
that because their moneys have been on deposit in the CRF for long periods of
time and the Crown did not lock in the interest rates, the Crown thereby
enjoyed an enrichment in that it paid more for other long-term borrowing than
it did for the Indian moneys.
[293]
The plaintiffs’ assertion of the Crown enjoying such a benefit depends
upon finding that if the Crown did not have access to the Indian moneys, it
would have replaced them with long-term borrowing (i.e., bonds) at fixed rates.
The plaintiffs’ experts who examined this issue did so in terms of looking at
what it would have cost the Crown to replace the Indian moneys with borrowing
from a single long-term investor. They did not approach it on the basis of
simply asking what the Crown would have done.
[294]
Ermineskin expert Mr. Hockin, who is a former Assistant Deputy Minister
of Finance, testified that the Crown would have replaced Indian moneys through
issuing ten year and over long bonds (transcript volume 203, pp. 28814-28815).
I note, however, that his statement of qualifications did not mention anything
about Crown debt management or debt strategy and I have some reservations with
placing much weight on his opinion on this particular issue (SE-467).
[295]
Another Ermineskin expert, Mr. Lambert, was of the strong opinion that
the Crown received a clear benefit by way of the operation of the Indian moneys
formula (transcript volume 181, p. 25416; SE-351, p. 12). Mr. Lambert testified
that he thought the Crown would replace the Indian moneys with long-term
borrowing, but he agreed that the Crown expert, Mr. King, was better placed to
explain federal government debt strategy, since Mr. King was qualified as an
economist with specific expertise in government debt management strategy
(transcript volume 181, pp. 25418-25419; C-986).
[296]
Mr. Tony Williams, an actuary who testified for the plaintiffs, examined
the issue from the perspective of the Crown externally financing the same
amount of debt as the Indian moneys represented and in the same fashion – what
he referred to as an independent arm’s length borrower with a long-term
horizon. He specifically disagreed with Mr. King’s approach, viz. asking
what the Crown would have done instead (transcript volume 216, 31014). However,
Mr. Williams did agree that if the Crown did not have access to the Indian
moneys, it would not have to replace them entirely with one single arm’s length
borrower. He also agreed that Treasury Bills – short-term debt – would have
been an available option for the Crown in such a scenario (transcript volume
216, pp. 31016-31017).
[297]
Yet another of the plaintiffs’ experts, Mr. Perreault, conceded that if
the Crown had to replace Indian moneys with alternate borrowing, there was no
obligation for the Crown to resort exclusively to long-term bonds. Mr. Perreault
also agreed that if the Crown went entirely with T-bills, the Crown would have
saved over $100 million (transcript volume 232, pp. 33639-33670). However, he
did not perform such calculations as his terms of reference did not mandate him
to assess what it would have cost the Crown to replace the Indian moneys with
alternate forms of borrowing (transcript volume 232, pp. 33638-33639).
[298]
The Crown’s expert on this matter was Mr. King. As noted earlier in
these Reasons in the section profiling the witnesses, Mr. King is an economist
and has held various positions at the Bank of Canada and Department of Finance
(C-987, Appendix A). He was qualified as an expert on government debt
management and the use of both external financing and internal sources of funds
for that purpose (C-986). I prefer his evidence on this issue over that of the
plaintiffs’ experts.
[299]
Mr. King testified that the Crown’s debt strategy in the early 1980s was
based on a target ratio between fixed and floating debt and that the ratio was
set at 50/50 (transcript volume 335, pp. 92-95). The target ratio involved a
trade-off between short-term and long-term debt with regard to stability in the
public debt charges and interest savings (transcript volume 335, pp. 106-109;
transcript volume 348, pp. 157-159). In his opinion, if the Crown did not have
access to Indian moneys – if they had never existed – the Crown would have gone
with a strategy of Treasury Bill financing, which has the advantage of lowering
the long run cost of funds (C-987, p. 7).
[300]
Mr. King did consider a second possible strategy. In his opinion, given
the relatively small size of the Indian moneys as compared to the Crown’s
overall borrowings, the loss of the Indian moneys would have simply been
regarded as an increase in the amount of money which had to be borrowed and
would be replaced by a mix of Treasury Bills and whatever long bonds the Crown
had targeted. By Mr. King’s calculations, this would still result in a lower
cost than what the Crown actually paid on the Indian moneys from 1971/72 to
1999/2000 (C-987, p. 7; transcript volume 336, pp. 115-116).
[301]
In my opinion, the correct approach to this issue is to ask what the
Crown would have done had it not had access to the Indian moneys. Assume the
moneys simply never existed. I do not agree with the approach used by the
plaintiffs’ experts where they assessed the costs of borrowing assuming there
was a single borrower with a long-term horizon. It is clear from the evidence,
not only of Mr. King, but also of some of the plaintiffs’ experts, that the
Crown would have used cheaper short-term debt financing in the absence of
Indian moneys. The fact that the Indian moneys may have been on deposit for a
long period of time was not the result of any legal requirement. The moneys
were never committed to remain in the CRF for any period of time and were
always available for withdrawal, subject to section 64 of the Indian Act.
[302]
The Supreme Court discussed the benefit element of the test for unjust
enrichment in Peel (Regional Municipality) v. Canada, [1992] 3
S.C.R. 762. Justice McLachlin held, at p. 790,
To date, the cases have recognized two types of
benefit. The most common case involves the positive conferral of a benefit upon
the defendant, for example the payment of money. But a benefit may also be
“negative” in the sense that the benefit conferred upon the defendant is that
he or she was spared an expense which he or she would have been required to undertake,
i.e., the discharge of a legal liability.
[303]
It certainly cannot be argued in the case at bar that the plaintiffs
spared the Crown an expense which it was required to undertake. The Crown had
no obligation – legal or otherwise – to pay someone else, in the absence of the
Indian moneys, an interest rate higher than that paid on the Indian moneys.
[304]
As for whether there was a positive benefit, in the sense that the
plaintiffs conferred upon the Crown a benefit by virtue of the payment of their
royalty moneys into the CRF and the subsequent borrowing by the Crown, the
evidence shows that this did not amount to a benefit. At first glance, it may
appear that there was a benefit because the plaintiffs’ money was collected,
held, and borrowed by the Crown. However, when one looks at what the Crown
would have done had it not had any recourse to that money, it leads to the
conclusion that the Crown would have sought any additional debt financing
through use of short-term instruments. This form of debt financing would have
allowed the Crown to reduce its costs, whereas with the Indian moneys on
deposit in the CRF, the Crown ended up paying more for access to them.
[305]
There can be no corresponding detriment because I have found that the
Crown as trustee may rely on section 61(2) of the Indian Act, and the
Orders-in-Council establishing the interest rate methodology, in carrying out
its duties as a trustee.
[306]
Finally, there is the juristic reason element. In Garland, at
para. 49, the Court held,
Disposition of law is well established as a category of
juristic reason. In Rathwell, supra, Dickson J. gave as examples
of juristic reasons “a contract or disposition of law” (p. 455). In Reference
re Goods and Services Tax, [1992] 2 S.C.R. 445 (“GST Reference”),
Lamer C.J. held that a valid statute is a juristic reason barring recovery in
unjust enrichment. This was affirmed in Peter, supra, at p. 1018.
Most recently, in Mack v. Canada (Attorney General) (2002), 60
O.R. (3d) 737, the Ontario Court of Appeal held that the legislation which
created the Chinese head tax provided a juristic reason which prevented
recovery of the head tax in unjust enrichment. In the leading Canadian text, The
Law of Restitution, supra, McCamus and Maddaugh discuss the phrase
“disposition of law” from Rathwell, supra, stating at p. 46:
... it is perhaps self-evident that an unjust
enrichment will not be established in any case where enrichment of the
defendant at the plaintiff’s expense is required by law.
It seems clear, then, that valid legislation can
provide a juristic reason which bars recovery in restitution.
[307]
Thus, even if I am wrong on the enrichment and deprivation elements, the
plaintiffs’ unjust enrichment claim still fails because valid legislation
requires the Crown to deposit the Indian moneys into the CRF pay interest
thereon, pursuant to the Orders-in-Council.
F.
Constitutional Issues
[308]
In its Notice of Constitutional Question, Ermineskin submits that to the
extent that the money management provisions of the Indian Act do not
require, or result in, the payment of a sufficient rate of interest – one that
matches the return which a reasonable trustee ought to obtain through prudent
investments – then the legislation breaches their treaty rights. Ermineskin
also relies on section 15 of the Charter.
[309]
Ermineskin submits that the relevant provisions of the Indian Act
and the Indian Oil and Gas Act must be interpreted in a manner
consistent with the Crown’s trust duties and the honour of the Crown.
Ermineskin contends that the source of the Crown’s duties lies in the promises
made by the Crown in Treaty 6 and in the interests in land granted pursuant to,
and protected by, that treaty. Ermineskin contends that if it is found that the
enactments deprive Ermineskin of its rights as a beneficiary of a trust, then
the enactments are constitutionally invalid to the extent of that conflict.
[310]
Ermineskin does not assert, as Samson did in its action, an aboriginal
right, treaty right, or inherent right to self-government.
[311]
Ermineskin submits that the Crown’s trust obligations find their source
in the reserve clause of Treaty 6, which reads,
And Her Majesty the Queen hereby agrees and undertakes
to lay aside reserves for farming lands, due respect being had to lands at
present cultivated by the said Indians, and other reserves for the benefit of
the said Indians, to be administered and dealt with for them by Her
Majesty’s Government of the Dominion of Canada, provided all such reserves
shall not exceed in all one square mile for each family of five, or in that
proportion for larger or smaller families, in manner following, that is to say:
–
That the Chief Superintendent of Indian Affairs shall
depute and send a suitable person to determine and set apart the reserves for
each band, after consulting with the Indians thereof as to the locality which
may be found to be most suitable for them;
Provided, however, that Her Majesty reserves the right
to deal with any settlers within the bounds of any lands reserved for any band
as she shall deem fit, and also that the aforesaid reserves of land or any
interest therein may be sold or otherwise disposed of by Her Majesty’s
Government for the use and benefit of the said Indians entitled thereto, with
their consent first had and obtained; and with a view to show the satisfaction
of Her Majesty with the behavior and good conduct of her Indians, she hereby,
through her Commissioners, makes them a present of twelve dollars for each man,
woman and child belonging to the bands here represented, in extinguishment of
all claims heretofore preferred.
(S-4, pp. 352-353; underlining is mine)
[312]
Ermineskin also relies on the remarks made by Morris in conjunction with
this clause of the treaty, regarding the possibility of selling reserves. The
plaintiffs contend that these words amount to a treaty promise or undertaking.
Commission Secretary Jackes recorded Morris’s remarks as follows,
“There is one thing I would like to say about the
reserves. The land I name is much more than you will ever be able to farm, and
it may be that you would like to do as your brothers where I came from did.
They, when they found they had too much land, asked the
Queen to sell it for them; they kept as much as they could want, and the price
for which the remainder was sold was put away to increase for them, and many
bands now have a yearly income from the land.
But understand me, once the reserve is set aside, it
could not be sold unless with the consent of the Queen and the Indians; as long
as the Indians wish, it will stand there for their good; no one can take their
homes.”
(S-4, p. 205)
[313]
The language in Treaty 6 is clear that the Crown shall administer and
deal with Indian reserves.
[314]
Morris’s remarks reflect the long-standing Crown policy, dating back to
the Royal Proclamation of 1763, which provided that only the Crown could
purchase or take possession of Indian lands. This responsibility passed on to
colonial governments when they took over the administration of Indian affairs.
Following Confederation in 1867, the federal government of Canada assumed this
special responsibility. In Guerin, at p. 383, Dickson J. held,
The purpose of this surrender requirement is clearly to
interpose the Crown between the Indians and prospective purchasers or lessees
of their land, so as to prevent the Indians from being exploited. This is made
clear in the Royal Proclamation itself which prefaces the provision making the
Crown an intermediary with a declaration that “great Frauds and Abuses have
been committed in purchasing Lands of the Indians, to the great Prejudice of
our Interest and to the great Dissatisfaction of the said Indians... .” Through
the confirmation in the Indian Act of the historic responsibility which
the Crown has undertaken, to act on behalf of the Indians so as to protect
their interests in transactions with third parties, Parliament has conferred
upon the Crown a discretion to decide for itself where the Indians’ best
interests really lie. This is the effect of s. 18(1) of the Act.
[315]
The written text of Treaty 6 and the surrounding negotiations and
historical context show that the administration and management of reserve lands
and resources were to be functions and responsibilities of the Crown. This
responsibility dates back to the Royal Proclamation of 1763.
[316]
Through the terms of Treaty 6, Ermineskin placed itself under the protection
of the Crown. That may not be fashionable to state today, but that is indeed
the effect of the treaty. Certainly, one can view the treaty as forming or
solidifying an alliance or partnership, but it also meant that Ermineskin’s
ancestors agreed to allow the Crown to look to their interests. In return,
Ermineskin secured certain benefits, set out in the treaty. Crown policy,
dating back centuries in some aspects, and legislation flowing therefrom, was
to respect and protect Indian interests. That may not always have been the way
things operated in reality, but that is the Crown’s acknowledged policy, and it
has since become enshrined in the jurisprudence. The relationship between the
Crown and aboriginal people is ancient and complex. It is also an evolving
thing. Ideas of wardship, tutelage, and assimilation have been abandoned in
favour of increased decision-making and empowerment.
[317]
As I have stated earlier, in my opinion, the trust arises from the 1946
Surrender of Minerals and, as such, does not fall under the rubric of treaty
rights. While the Crown set itself up as their protector by way of Treaty 6 and
agreed to administer and manage Indian reserves, the Indian moneys trust only
came into existence upon the surrender by Ermineskin of its interests and
rights in the minerals.
[318]
Because the Crown has taken on the responsibility to interpose itself
between aboriginal interests and third parties, it has the duty to set out
rules governing how that is to play out. In the case of the Indian moneys, the
Crown agreed by the 1946 Surrender to safeguard Ermineskin’s interests. The
Indian moneys enactments contained in the Indian Act exist for that
purpose. Section 61(1) states that the Crown holds the Indian moneys for the
“use and benefit” of the Indian or band on whose behalf they are held. The
Crown must pay interest on this money, pursuant to section 61(2); that is
mandatory. Expenditures of capital, governed by section 64, may only be
authorized and directed by the Minister with the consent of the band council
and for a list of enumerated purposes, ending with (k) which is a sort of
catch-all clause. But the point of section 64 is that expenditures must be for
the benefit of the band. The Crown has retained the discretion for
itself to decide where best interests lie, but this goes to the heart of the
parties’ relationship, which is deep, historical, and sui generis in
nature. The honour of the Crown is always at stake in its dealings with
aboriginal people and that “core precept” supervises and governs the exercise
of its discretion.
[319]
The plaintiffs also invoke section 15 of the Charter, which is
found under the heading “Equality Rights” and reads as follows:
15. (1) Equality before and under
law and equal protection and benefit of law – Every individual is equal before
and under the law and has the right to the equal protection and equal benefit
of the law without discrimination and, in particular, without discrimination
based on race, national or ethnic origin, colour, religion, sex, age or mental
or physical disability.
[320]
In Nechako Lakes School District No. 91 v. Patrick, [2002]
B.C.J. No. 37, the British Columbia Supreme Court had occasion to consider the
applicability of section 15 of the Charter to Indian bands. The
defendant bands were sued for school fees they owed; the bands counterclaimed
and, among other things, alleged discrimination pursuant to section 15(1) of
the Charter. Garson J. analysed the legal character of an Indian band at
paras. 103 to 111 and concluded that bands are not individuals for the purposes
of the Charter. After making that finding, he declined to consider the
discrimination argument on its merits:
¶_103_____ The Indian Act, R.S.C. 1985, C. I‑5, s.
2(1) defines "band":
|
"band" means a
body of Indians
|
|
(a)
|
|
for whose use and benefit in
common, lands, the legal title to which is vested in Her Majesty, have been
set apart before, on or after September 4, 1951,
|
|
(b)
|
|
for whose use and benefit in
common, moneys are held by Her Majesty, or
|
|
(c)
|
|
declared by the Governor in
Council to be a band for the purposes of this Act;
|
|
¶_104_____ The Indian Act defines "council of the
band" in s. 2(1) as the council established pursuant to s. 74 of the Indian
Act, which states that a band council "shall be selected by elections
to be held in accordance with this Act."
¶_105_____ In his text Native Law (Toronto: Carswell,
1994), J. Woodward at p. 398 says, "[t]he band, as an enduring entity with
its own government is a unique type of legal entity under Canadian law."
¶_106_____ In the case of William v. Lake Babine Indian
Band (1999), 30 C.P.C. (4th) 156 (B.C.S.C.), Taylor J. had to determine the
proper method of service of a Writ and Statement of Claim on an Indian Band and
Band Council. He decided that an Indian Band was more like a trade union than a
corporation because it performs a representative function on behalf of its
members.
¶_107_____ In the case of Montana v. Canada, [1998]
2 F.C. 3 (F.C.T.D.) at para. 20, Reed J. stated "neither a band nor a band
council have corporate status; nor is either a natural person in the eyes of
the law." She went on to note that a band has been described as an
"unincorporated association of a unique nature, because it is created by
statute rather than by consent of its members," and that other
commentators have noted that "[t]he rights and obligations of the band are
quite distinct from the accumulated rights and obligation of the members of the
band ... [i]n law a band is in a class by itself".
¶_108_____ Reed J. noted that in Clow Darling Ltd. v.
Big Trout Lake Band (1989), 70 O.R. (2d) 56 (Ont. (Dist. Ct.)) the court
stated "... a band council has the capacity to function and to take on
obligations separate and apart from its individual members, as does a
corporation ...". She quoted from Joe v. Findlay (1987), 12
B.C.L.R. (2d) 166 (S.C.), where the court stated "[t]his band council is
elected by its members to exercise statutory and other rights and duties
...".
¶_109_____ With respect to Charter actions brought in a
representative form, the B.C. Court of Appeal recently refused standing to two
trade unions who brought an action for breach of s. 2(d) of the Charter
(which refers to "everyone") and sought relief under s. 24(1) not on
their own behalf, but as agents on behalf of their members (C.L.A.C. v. B.C.
Transportation Financing (2001), 91 B.C.L.R. (3d) 197).
¶_110_____ The impugned Local Education Agreements are not
between individuals. In my view a band is a representative body, and also a
governing body, but a band does not stand in the place of the individual Indian
children as argued by the Bands. A band is not a "human being". The
Local Education Agreements are between levels of government or governing
bodies. The Local Education Agreements provide for a funding route between
levels of government, and enable the Bands to have input into the quality and
nature of the education of their children. In no way is any parent of any child
required under a Local Education Agreement, to pay on an individual basis for
the schooling of his or her child contrary to the School Act. The Band or the
Band Council as a party to a Local Education Agreement is acting in a governing
or representative capacity. In this capacity it is taking on "rights and
obligations separate and apart from its individual members".
¶_111_____ It follows that the Bands and Band Councils are not
individuals, and hence s. 15(1) of the Charter does not in this case
apply to them.”
[321]
I agree with the analysis and conclusion of Garson J. and adopt them for
the purposes of this case. Section 15 of the Charter is not available to
Ermineskin in the case at bar. I therefore need not delve any further into the
discrimination argument.
G. Costs
[322]
Rule 400 of the Federal Court Rules sets out the Court’s power to
award costs. This power is entirely within the Court’s discretion. Although I
have found in favour of the Crown and that it is not liable for its handling of
the Indian moneys, I will not award them their costs. Given the length and
complexity of this action, as well as the important issues at stake, each party
will bear its own costs
H. Conclusion
[323]
For the Reasons set out herein, the action against the Crown is
dismissed. Furthermore, as there is no liability on the part of the Crown for
its conduct, I need not address the issues relating to limitations of actions.
MAX M. TEITELBAUM
JUDGE
CALGARY, Alberta
November 30, 2005
FEDERAL
COURT
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: T-1254-92
STYLE OF CAUSE: CHIEF JOHN ERMINESKIN ET AL v. HER MAJESTY THE
QUEEN ET AL
PLACE OF HEARING: CALGARY, ALBERTA/SAMSON CREE NATION
HOBBEMA, ALBERTA
DATE OF HEARING: 2000 MAY: 1 to 4; 8 to 10; JUNE:
5 to 9; 12 to 15; 19 to 23; OCTOBER: 3 to 6; 11 to 13; 16 to 18; 30 to
31; NOVEMBER: 1; 7 to 9; 13 to 16; 27 to 30; DECEMBER: 4 to 7; 11
to 13;
2001 JANUARY:
8 to 11; 15 to 17; 22 to 25; MARCH: 12; 14 to 15; 19 to 22; 26 to
29; APRIL: 2 to 5; 17 to 19; 30; MAY: 1 to 2; 14 to 17; 23 to 25;
JUNE: 4 to 7; 11 to 14; 18 to 21; SEPTEMBER: 4 to 7; 10 to 12; OCTOBER:
1 to 4; 9 to 12; 15 to 18; 29 to 31; NOVEMBER: 1; 5 to 8; 12 to 15;
27 to 29; DECEMBER: 3, 5 to 6; 10 to 11; 2002 JANUARY: 7 to 8; MAY:
6 to 9; 13 to 15; 21 to 24; JUNE: 3 to 5; 11 to 14; 19 to 20; JULY:
16; AUGUST: 26 to 30; SEPTEMBER: 10 to 13; 17 to 20; 30; OCTOBER:
1 to 3; 7 to 9; 15 to 17; 28 to 29; NOVEMBER: 12 to 15; 18 to 21; 25
to 28; DECEMBER; 2 to 5; 9; 2003 JANUARY: 13 to 16; 20; 22 to 23;
27 to 30; FEBRUARY: 18 to 21; 24 to 27; APRIL: 7; 22 to 23; 29 to
30; MAY: 1 to 2; 12 to 16; 20 to 23; 26 to 28; JUNE: 9 to 13; 16
to 20; SEPTEMBER: 3 to 4; 9; 24; OCTOBER: 15 to 17; 20 to 22; 27
to 30; NOVEMBER: 3 to 5; 10 to 12; 26 to 28; DECEMBER: 1 to 4; 2004
JANUARY: 12 to 15; 19 to 22; 26 to 29; FEBRUARY: 19; 23 to 25;
MARCH: 24 to 26; 29 to 31; APRIL: 1 to 2; 13 to 16; 19 to 22; 26; 28
to 30; MAY: 10 to 14; 17 to 21; 25 to 27; JUNE: 6 to 8; 10 to 11;
22 to 25; JULY: 5 to 9; 13 to 16; 19 to 20; NOVEMBER: 30; DECEMBER:
1 to 3; 6 to 10; 13 to 17; 20 to 21; 2005 JANUARY: 20 to 21;
REASONS FOR JUDGMENT : TEITELBAUM, J.
DATED: November
30, 2005
APPEARANCES:
Mr. Marvin R.V. Storrow, Q.C.,
Ms. Maria A. Morellato
Mr. Joseph C. McArthur
Ms. Joni Paulus
Ms. Joanne R. Lysyk
Mr. W.S. Maclagan
Ms. Claudia McKinnon
Ms. Tina L. Dion
Mr. Roy W. Millen
Mr. Ryan DuRussel FOR
PLAINTIFFS
Mr. Alan D. Macleod
Mr. Clarke Hunter
Ms. Mary Comeau
Ms. Brenda Armitage
Ms. Wendy McCallum
Mr. Tom Valentine
Mr. James Bazant
Mr. Ray Chartier
Mr. Robert Stack FOR
DEFENDANTS
Mr. Robert J. Normey
Mr. S.H. Stan Rutwind FOR ATTORNEY
GENERAL
Ms. Beverley Bauer, Q.C., OF
ALBERTA
SOLICITORS OF RECORD:
BLAKE, CASSELS & GRAYDON LLP
Vancouver, BC FOR
PLAINTIFFS
MACLEOD DIXON LLP
Calgary, Alberta FOR
DEFENDANTS
ALBERTA JUSTICE CONSTITUTIONAL FOR ATTORNEY GENERAL
AND ABORIGINAL LAW OF ALBERTA