Beattie v. Canada, docket T-361-93

    

     Date: 20010119

     Docket: T-361-93

Ottawa, Ontario, this 19^th day of January 2001

PRESENT: THE HONOURABLE DENIS PELLETIER

BETWEEN:

JOYCE WILMA BEATTIE

    

     Plaintiff

     - and -

HER MAJESTY THE QUEEN

     Defendant

                         - and -

SAHTU SECRETARIAT INCORPORATED

Third Party

BETWEEN:

T-2216-91

JOYCE WILMA BEATTIE

Plaintiff

- and -

HER MAJESTY THE QUEEN, as represented by the

MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT

Defendant

REASONS FOR ORDER AND ORDER

PELLETIER J.:

[1]      On July 21, 1921, Joyce Wilma Beattie's grandfather came before Treaty Commissioner H.A. Conroy at Fort Good Hope, N.W.T. and placed his mark on the document which is now described as Treaty 11. What he thought he was giving up and what he thought he was getting in return, only he could tell us. But he signed not only for himself but for all his descendants. Today, his granddaughter relies upon his adhesion to that Treaty to claim a right to agricultural assistance. Attempts to have her claim recognized by the Minister of Indian Affairs and Northern Development (the "Minister") having failed, Ms. Beattie comes to Court seeking to vindicate her rights. But she is unable to afford a lawyer so, in addition to her original suit, Ms. Beattie has commenced another action asking for a declaration that she is entitled under Treaty 11 to have the Crown pay for a lawyer to pursue her Treaty rights in court. She says that she is entitled to both of her demands because of the language of Treaty 11 which contains the following promise:

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

[2]          In Ms. Beattie's view, legal assistance to vindicate her rights is "such assistance as is deemed necessary" to allow her to follow agricultural pursuits. Since there is some overlap in the issues to be considered in these applications, these reasons will deal with both claims.

[3]      The defendant, Her Majesty the Queen as represented by the Minister of Indian Affairs and Northern Development, ("the Crown"), seeks to put an end to the litigation by applying to have both actions struck out as failing to disclose a cause of action. In the alternative, the Crown seeks summary judgment dismissing the claims on their merits.

FACTS

[4]      Treaty No. 11 was entered into in 1921 by representatives of the Slave, Dogrib, Loucheux, Hare and other tribes who inhabited a tract of land which straddles the MacKenzie Delta ("the Treaty 11 area"), and the defendant, Her Majesty the Queen in Right of Canada as represented by the Minister. The Treaty Commissioner spent the summer of 1921 travelling to the communities of the various Indian nations who occupied the Treaty 11 area, including Fort Good Hope, and securing their adhesion to the document which he put before them. The Canadian government ratified it on October 22, 1921 by Order in Council 3985.

    

[5]      Ms. Beattie, who does not reside in the Treaty 11 area, is able to show a direct lineal connection with one of the Indian signatories of Treaty 11. This connection is the basis of her claim to entitlement under Treaty 11.

[6]      Ms. Beattie lives in Merritt, British Columbia. She has developed a ginseng farm in that area. She has asked for agricultural with respect to her farm, claiming the benefit of the provisions of Treaty No. 11. The Minister has denied her claim, arguing that the agricultural assistance benefit is only available within the Treaty 11 area, which is the area described in the Treaty.

[7]      On or about May 5, 1992, Ms. Beattie wrote to the Minister indicating that since the Minister opposed her claim for agricultural assistance, she was required to retain counsel to pursue her rights. In her view, this rendered payment for legal assistance "such assistance as is deemed necessary" to allow her to follow agricultural pursuits, bringing the claim within the words of the Treaty.

[8]      The Minister advised Ms. Beattie by letter dated May 29, 1992 that no litigation funding would be provided and that the Minister would not accept liability for any legal costs incurred by the plaintiff.

POSITION OF THE PARTIES

[9]      With regard to agricultural assistance, Ms. Beattie simply relies upon the words of the Treaty. She invokes the honour of the Crown in its dealings with aboriginal peoples and says that the interpretation of the Treaty most favourable to her must prevail. Since this was a treaty of adhesion, in the sense that the terms were prepared by the Government and the Indians were simply asked to agree to them, she says that the question of joint intention does not arise. She says the Treaty is subject to the presumption that if the Crown intended to limit agricultural assistance to the Treaty 11 area, it would have said so. Silence on that issue must be construed against the Crown.

[10]      Ms. Beattie also relies upon the decision of the Supreme Court of Canada in Corbière v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203, (1999), 239 N.R.1 to argue that the Crown's tying of treaty rights to residence is a violation of her rights under section 15 of the Canadian Charter of Rights and Freedoms (the "Charter"). In Corbière, the Supreme Court of Canada held that subsection 77(1) of the Indian Act, R.S.C. 1985, c. I-5 (the "Act") which provided that only Indians who were resident on the reserve could vote in band elections was a violation of section 15 of the Charter. Ms. Beattie argues that the present case is on all fours with Corbière and is governed by it.

[11]      On the issue of legal assistance, Ms. Beattie's position is that since she has been put to the task of going to Court in order to vindicate her rights, the cost of retaining legal assistance to do so is "such assistance as is deemed necessary" to allow her to follow agricultural pursuits. Her claim is therefore founded in the specific language of the Treaty, or arises by implication from the language used.

[12]      The Minister's position is that the words of Treaty 11, providing for agricultural assistance, cannot reasonably be read as applying to the whole of the territory of Canada, as they must if Ms. Beattie's construction of the Treaty is correct. The Crown says that Corbière, supra, does not apply. As for the claim for legal assistance, the agricultural assistance provision does not, in express terms, give Ms. Beattie the right to legal assistance nor is such assistance a necessary incidental to any right to agricultural assistance. The Minister denies that Ms. Beattie has any basis for a claim pursuant to Treaty 11.

ISSUES

[13]      The first issue is whether the Statement of Claim should be struck as disclosing no cause of action, pursuant to Rule 221(1) of the Federal Court Rules, 1998:

221. (1) On motion, the Court may, at any time, order that a pleading, or anything contained therein, be struck out, with or without leave to amend, on the ground that it

     (a) discloses no reasonable cause of action or defence, as the case may be,

     (b) is immaterial or redundant,

     (c) is scandalous, frivolous or vexatious,

     (d) may prejudice or delay the fair trial of the action,

     (e) constitutes a departure from a previous pleading, or

     (f) is otherwise an abuse of the process of the Court,

and may order the action be dismissed or judgment entered accordingly.

221. (1) À tout moment, la Cour peut, sur requête, ordonner la radiation de tout ou partie d'un acte de procédure, avec ou sans autorisation de le modifier, au motif, selon le cas :

     a) qu'il ne révèle aucune cause d'action ou de défense valable;

     b) qu'il n'est pas pertinent ou qu'il est redondant;

     c) qu'il est scandaleux, frivole ou vexatoire;

     d) qu'il risque de nuire à l'instruction équitable de l'action ou de la retarder;

     e) qu'il diverge d'un acte de procédure antérieur;

     f) qu'il constitue autrement un abus de procédure.

Elle peut aussi ordonner que l'action soit rejetée ou qu'un jugement soit enregistré en conséquence.

[14]      Next, if the application under Rule 221(1) does not succeed, is either party entitled to summary judgment under Rule 216? This involves consideration of the scope of the rule as well as the underlying issues:

216. (1) Where on a motion for summary judgment the Court is satisfied that there is no genuine issue for trial with respect to a claim or defence, the Court shall grant summary judgment accordingly.

216. (1) Lorsque, par suite d'une requête en jugement sommaire, la Cour est convaincue qu'il n'existe pas de véritable question litigieuse quant à une déclaration ou à une défense, elle rend un jugement sommaire en conséquence.

[15]      Finally, if this is a matter for summary judgment, what are the merits of Ms. Beattie's claims.

ANALYSIS

     A) RULE 221(1) OF THE FEDERAL COURT RULES, 1998

[1]      In order for this Court to dismiss the plaintiff's claim as showing no cause of action, this Court must be convinced that the pleadings do not disclose a cause of action known to law. The issue in such a motion is not whether the claim can succeed but whether there is a justiciable claim at all. The defendant has a heavy burden to discharge in such an application. In the present case, the issue is the extent of Ms. Beattie's entitlement under Treaty 11. Ms. Beattie has pleaded a basis for claiming the benefit of Treaty 11. The question of entitlement under a treaty is a justiciable issue so that the application under Rule 221 must fail. Ms. Beattie is asserting a cause of action known to law.

     B) RULES 213 AND 216 OF THE FEDERAL COURT RULES, 1998

    

[2]      In order to dispose of this action by way of summary judgment pursuant to Rules 213 and 216 of the Federal Court Rules, the Court must conclude that the evidence on file enables it to decide the facts and law in issue. Granville Shipping Co. v. Pegasus Lines Ltd. S.A., [1996] 2 F.C. 853, (1996), 111 F.T.R. 189. Both parties have agreed that summary judgment is an appropriate mechanism for disposing of both claims.

C) RIGHT TO AGRICULTURAL ASSISTANCE PURSUANT TO THE AGRICULTURAL ASSISTANCE PROVISION OF TREATY 11

[3]      A recent and authoritative expression of the law, relating to the interpretation of treaties, was delivered by the Supreme Court in R. v. Marshall, [1999] 3 S.C.R. 456 at paragraph 78, (1999), 246 N.R. 83, where the Court enunciated nine guiding principles of treaty interpretation:

1. Aboriginal treaties constitute a unique type of agreement and attract special principles of interpretation (...).

2. Treaties should be liberally construed and ambiguities or doubtful expressions should be resolved in favour of the aboriginal signatories (...).

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 (...).

4. In searching for the common intention of the parties, the integrity and honour of the Crown is presumed (...).

5. In determining the signatories' respective understanding and intentions, the court must be sensitive to the unique cultural and linguistic differences between the parties (...).

6. The words of the treaty must be given the sense which they would naturally have held for the parties at the time(...).

7. A technical or contractual interpretation of treaty wording should be avoided (...).

8. While construing the language generously, courts cannot alter the terms of the treaty by exceeding what "is possible on the language" or realistic (...).

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 (...)

[4]      With that background in mind, one turns to Treaty 11, which is structured as follows. The recitals state that His Majesty is desirous of opening up a tract of land for "settlement, immigration, trade, travel, mining, lumbering and such other purposes as to His Majesty may seem meet", and that His Majesty wishes to obtain the consent of his Indian subjects to this undertaking. The tract of land is described and the persons subscribing to the Treaty "cede, release, surrender and yield" "all their rights, titles, and privileges whatsoever to the lands" so described. This is immediately followed by a guarantee that the Indians shall have the "right to pursue their usual vocations of hunting, trapping and fishing throughout the tract surrendered" except for those portions taken for the purposes described in the recitals to the Treaty. His Majesty then engages himself to create reserves for the Indians which His Majesty may, but the Indians may not, sell or otherwise alienate. His Majesty then promises to pay certain sums of money and to provide tools and equipment for hunting and fishing "for each Indian who continues to follow the vocation of hunting, fishing and trapping". There is also a promise on the part of His Majesty to pay teachers " to instruct the children of said Indians in such manner as His Majesty's Government may deem advisable". The last in the series of promises is the one in issue in these proceedings. In it, His Majesty undertook that "in the event of any of the Indians aforesaid being desirous of following agricultural pursuits, such Indians shall receive such assistance as is deemed necessary for that purpose". The Treaty then concludes with the Indians making a commitment to obey the law, and the Treaty, and promising to keep the peace.

[5]      The specific clauses in issue here are reproduced below:

AND His Majesty the King hereby agrees with the said Indians that they shall have the right to pursue their usual vocations of hunting, trapping and fishing throughout the tract surrendered as heretofore described, subject to such regulations as may from time to time be made by the Government of the Country acting under the authority of His Majesty, and saving and excepting such tracts as may be required or taken up from time to time for settlement, mining, lumbering, trading or other purposes.

     ...

AND His Majesty the King hereby agrees and undertakes to lay aside reserves for each band, the same not to exceed in all one square mile for each family of five, or in that proportion for larger or smaller families;

     ...

FURTHER, His Majesty agrees to supply once and for all to each Chief of a band that selects a reserve, ten axes, five hand-saws, five augers, one grindstone, and the necessary files and whetstones for the use of the band.

FURTHER, His Majesty agrees that, each band shall receive once and for all equipment for hunting, fishing and trapping to the value of fifty dollars for each family of such band, and that there shall be distributed annually among the Indians equipment, such as twine for nets, ammunition and trapping to the value of three dollars per head for each Indian who continues to follow the vocation of hunting, fishing and trapping.

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

[6]      What would the treaty makers have had in mind, in the early 1920's when they spoke of agricultural assistance? It is clear that the major preoccupation of the Indians signatories to the Treaty was to preserve their right to continue to use the land as they had. The report of the Treaty Commissioner sets out the concerns of the Indians:

I had several meetings with them, and explained the terms of treaty. They were very apt in asking questions, and here, as in all the other posts where the treaty was signed, the questions asked and the difficulties encountered were much the same. The Indians seemed afraid, for one thing, that their liberty to hunt, trap and fish would be taken away or curtailed, but were assured by me that this would not be the case, and the Government will expect them to support themselves in their own way, and, in fact, that more twine for nets and more ammunition were given under the terms of this treaty than under any of the preceding ones; this went a long way to calm their fears. I also pointed out that any game laws made were to their advantage, and, whether they took treaty or not, they were subject to the laws of the Dominion. They also seemed afraid that they would be liable for military service if the treaty was signed, that they would be confined on the reserves, but, when told that they were exempt from military service, and that the reserves mentioned in the treaty would be of their own choosing, for their own use, and not for the white people, and that they would be free to come and go as they pleased, they were satisfied.

[7]      The right to continue to use the land in the traditional way is specifically recognized in the Treaty:

AND His Majesty the King hereby agrees with the said Indians that they shall have the right to pursue their usual vocations of hunting, trapping and fishing throughout the tract surrendered as heretofore described, subject to such regulations as may from time to time be made by the Government of the Country acting under the authority of His Majesty, and saving and excepting such tracts as may be required or taken up from time to time for settlement, mining, lumbering, trading or other purposes.

[8]      This undertaking is supported by a commitment on the part of the Crown to provide certain tools and supplies which are useful for hunting, fishing and trapping. However, the possibility that some Indians might wish to abandon their traditional lifestyle is recognized in the promise of assistance to those wishing to engage in agricultural pursuits. The content of the duty to provide agricultural assistance must be derived from the fact of a transition in lifestyle from a nomadic existence, based on hunting and fishing to a more settled lifestyle which is described as engaging in "agricultural pursuits". The type of agricultural assistance to be provided is undefined but if it were consistent with the other assistance provided, it would be instrumental, that is, it would provide the means by which those who wished to do so could undertake to support themselves by agriculture. Put another way, considering the type of assistance provided for those engaging in the traditional lifestyle, one would think that the assistance would be of a similar sort, that is, tools, equipment supplies and perhaps seed.

[9]      One can get a sense of how agricultural assistance was dealt with in other contexts by examining the terms of similar treaties whose content may provide an indication of the view taken of agricultural assistance in those circumstances where it was a more significant element of the Treaty. Treaty No. 8 which was concluded in 1889, covers an area which is more suited to "agricultural pursuits". One finds in it the following clause dealing with the assistance to be provided to those Indians who agree to settle on the reserves and take up agriculture:

FURTHER, Her Majesty agrees that each Band that elects to take a reserve and cultivate the soil, shall, as soon as convenient after such reserve is set aside and settled upon, and the Band has signified its choice and is prepared to break up the soil, receive two hoes, one spade, one scythe and two hay forks for every family so settled, and for every three familiesone plough and one harrow, and to the Chief, for the use of his Band, two horses or a yoke of oxen, and for each Band potatoes, barley, oats and wheat (if such seed be suited to the locality of the reserve), to plant the land actually broken up, and provisions for one month in the spring for several years while planting such seeds; and to every family one cow, and every Chief one bull, and one mowing-machine and one reaper for the use of his Band when it is ready for them; for such families as prefer to raise stock instead of cultivating the soil, every family of five persons, two cows, and every Chief two bulls and two mowing-machines when ready for their use, and a like proportion for smaller or larger families. The aforesaid articles, machines and cattle to be given one for all for the encouragement of agriculture and stock raising (...).

[10]      Treaty No. 6, which was concluded in 1876, also covers an area with agricultural possibilities. It contains the following clause dealing with agriculture:

It is further agreed between Her Majesty and the said Indians, that the following articles shall be supplied to any Band of the said Indians who are now cultivating the soil, or who shall hereafter commence to cultivate the land, that is to say: Four hoes for every family actually cultivating; also, two spades per family as aforesaid: one plough for every three families, as aforesaid; one harrow for every three families, as aforesaid; two scythes and one whetstone, and two hay forks and two reaping hooks, for every family as aforesaid, and also two axes; and also one cross-cut saw, one hand-saw, one pit-saw, the necessary files, one grindstone and one auger for each Band; and also for each Chief for the use of his Band, one chest of ordinary carpenter's tools; also, for each Band, enough of wheat, barley, potatoes and oats to plant the land actually broken up for cultivation by such Band; also for each Band four oxen, one bull and six cows; also, one boar and two sows, and one hand-mill when any Band shall raise sufficient grain therefor. All the aforesaid articles to be given once and for all for the encouragement of the practice of agriculture among the Indians. ...

That during the next three years, after two or more of the reserves hereby agreed to be set apart to the Indians shall have been agreed upon and surveyed, there shall be granted to the Indians included under the Chiefs adhering to the treaty at Carlton, each spring, the sum of one thousand dollars, to be expended for them by Her Majesty's Indian Agents, in the purchase of provisions for the use of such of the Band as are actually settled on the reserves and are engaged in cultivating the soil, to assist them in such cultivation.

[11]      One can see from these two examples that where the Crown provided agricultural assistance, it provided tools, equipment, livestock and seed so as to enable the Indians to begin farming for their living. It would also provide goods or a sum of money to be expended on "provisions" to be used by those engaged in agriculture. The common element is that of instrumentality, that is, the elements to be provided by the Crown are the instruments necessary to the pursuit of agriculture, literally the tools of agriculture and the seed or livestock. These are very concrete items which admit of little debate as to the use to which they are to be put. While the Crown's obligation to provide these goods is not labelled "agricultural assistance" in the treaties, it is clear that it is assistance provided to the Indians to enable them to engage in agriculture. It is not inappropriate to treat the type of materials provided as "agricultural assistance" and to conclude that the agricultural assistance to be provided under Treaty No. 11 would be of a similar kind.

[12]      That, however, does not settle the question as to where such assistance will be provided. The Crown takes the position that the agricultural assistance is to be provided in the Treaty 11 area, that is, in the area which was ceded in the Treaty. Since there are no words to that effect in the Treaty, the Crown says that this interpretation is implicit in the Treaty as a whole.

[13]      Ms. Beattie says that since the Treaty was drafted by the representatives of the Crown, it should be construed against them. Had the Crown wished to limit the area where payment is made, it could have done so in explicit words. The Crown's failure to do so should be construed against it. This appeal to contra proferentem is caught, it seems to me, by the Supreme Court's direction to avoid a technical or contractual interpretation of the Treaty. That admonition must apply to both parties if it is to be meaningful.

[14]      The issue is to determine as best we can the intention of the treaty makers. One begins by noting that the Treaty 11 area is not one which is known for its suitability for agriculture. The area extends roughly from the 60^th parallel to the Arctic Ocean, more or less along the MacKenzie River and its Delta. It is an area with a short growing season and harsh winters. On the other hand, agriculture, like hunting and fishing, is a way of living off the land. While its prospects may have been limited, it was a possibility which had been explored in other treaties. The uncertainty about the possibilities may well explain the absence of detail in the Treaty.

[15]      In Treaty No. 8, the promise of agricultural assistance is tied to those Indians who choose to settle on the reserves to be provided for them. In Treaty 11, the only promise which is specifically tied to the question of settling on reserves is the following:

FURTHER, His Majesty agrees to supply once and for all to each Chief of a band that selects a reserve, ten axes, five hand-saws, five augers, one grindstone, and the necessary files and whetstones for the use of the band.

[16]      No reserves were ever created in the area of Treaty 11 so that the right to agricultural assistance would be illusory if it was tied to reserves. Furthermore, the Crown could not, and does not, rely on its failure to establish reserves to deny access to agricultural assistance.

[17]           The question of the attachment of the Indians who signed treaties to their land has been the subject of comment by the Supreme Court of Canada. In Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, (1997), 220 N. R. 161, one of the seminal cases in the Court's development of the law in this area, the Court said this about the relationship of aboriginal peoples to the land they occupied:

What the inalienability of lands held pursuant to aboriginal title suggests is that those lands are more than just a fungible commodity. The relationship between an aboriginal community and the lands over which it has aboriginal title has an important non-economic component. The land has an inherent and unique value in itself, which is enjoyed by the community with aboriginal title to it. The community cannot put the land to uses which would destroy that value.

[18]      It is inappropriate to treat a conclusion in one case as evidence in another, so that the passage above cannot be taken as evidence of the state of mind of the Indians who signed Treaty 11. On the other hand, it does provide context for the concerns of the Indians with respect to their continuing right to hunt and fish on the land ceded. With those concerns in mind, is it likely that either the Indians or the federal authorities would have thought of agricultural assistance not only as a vehicle for a change in lifestyle but also as a vehicle for relocation out of the Treaty area? The attachment of the signatories to the Treaty was to their land, not to the territory traditionally occupied by other tribes. It is my view that it would have not occurred to them to bargain for the means to leave that land. I conclude that the promise of agricultural assistance was intended to provide a means by which those who wished to change their mode of life could do so and still have a means of subsistence. It was not the intention of the parties to the Treaty that this change in mode of life would occur outside the territory which was the subject of the Treaty.

[19]      If that was the original intent of the parties to the Treaty, would a contemporary rendering of the benefit not extend beyond the Treaty 11 area, given the mobility which characterizes life today? The principles of treaty interpretation set out in Marshall, supra, suggest that determining the content of the modern exercise of treaty rights consists of determining what practices are reasonably incidental to the core treaty right in its modern context. This is not an exercise in determining what rights are incidental to treaty rights but rather it is the process of distilling the core of the treaty right to see how it might be developed in a modern context. The core of the treaty right to agricultural assistance, it seems to me, is the development of a capacity for self-sufficiency based on the use of the land base. This could involve assistance with different modalities of food production or expanding the definition of agriculture to include other renewable resources whose cultivation could be the basis of self-sufficiency. That requires a land base, which was available within the Treaty area. There is no reason to believe that either of the parties to the Treaty would have looked beyond that land base. It would seem contrary to the attachment to the traditional territory, which underlies the original Treaty, to argue that its modern exercise involves facilitating the departure of the beneficiaries of the Treaty from the Treaty territory. It is not necessary for these purposes to define more precisely the content of the modern exercise of the right to agricultural assistance other than to say that it retains its connection to the original territory.

[20]      Ms. Beattie relies upon the decision of the Supreme Court of Canada in Corbière, supra, which was a challenge to subsection 77(1) of the Indian Act which denied the right to vote in band elections to those who resided off reserve. The challenge was based on section 15 of the Canadian Charter of Rights and Freedoms, the equality rights provision. The Supreme Court decided that the denial of voting rights to band members who did not reside on the reserve was discrimination on grounds of aboriginality-residence.

[21]      The Supreme Court applied the analysis developed in Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, (1999), 236 N.R. 1. It noted, first, that the provision in question denied an equal benefit or imposed an unequal burden on some members of the group. The second step in the analysis was to determine whether the subsection 77(1) of the Act did so on the grounds enumerated under section 15 or on analogous grounds. The Supreme Court found that aboriginality-residence was an analogous ground under section 15 of the Charter. McLachlin C.J.C. and Bastarache J. wrote in their reasons about the process by which analogous grounds are identified:

It seems to us that what these grounds have in common is the fact that they often serve as the basis for stereotypical decisions made not on the basis of merit but on the basis of a personal characteristic that is immutable or changeable only at unacceptable cost to personal identity. This suggests that the thrust of identification of analogous grounds at the second stage of the Law analysis is to reveal grounds based on characteristics that we cannot change or that the government has no legitimate interest in expecting us to change to receive equal treatment under the law. To put it another way, s. 15 targets the denial of equal treatment on grounds that are actually immutable, like race, or constructively immutable, like religion. Other factors identified in the cases as associated with the enumerated and analogous grounds, like the fact that the decision adversely impacts on a discrete and insular minority or a group that has been historically discriminated against, may be seen to flow from the central concept of immutable or constructively immutable personal characteristics, which too often have served as illegitimate and demeaning proxies for merit-based decision making.

[22]      The final step of the Law analysis was to determine if the difference in treatment on analogous grounds was discriminatory, that is, did it "undermine the presumption upon which the guarantee of equality is based -- that each individual is deemed to be of equal worth regardless of the group to which he or she belongs?" The Court decided that subsection 77(1) of the Act was discriminatory in that it did undermine the self-worth of off-reserve band members by denying them the right to participate in the band's affairs.

[23]      Ms. Beattie says that this analysis is directly applicable to the facts of her case. She says that the Crown's argument that agricultural assistance is available only within the Treaty 11 area would result in a violation of her section 15 equality rights because it would discriminate between her and other band members on the basis of residence. In fact, the basis of the distinction which the Crown draws is not the place of residence but the place where the agricultural assistance is to be employed. The significant fact is not that Ms. Beattie resides at Merritt; the significant fact is that her farm is at Merritt. If Ms. Beattie took the position that she wished to develop a ginseng farm in the Treaty 11 territory, and if the Crown refused to grant the assistance because she resided outside the Treaty 11 area, a Corbière analysis would be made out. But those are not the facts of this case. Ms. Beattie cannot therefore rely on aboriginal-residence as an analogous ground because it is not the operative basis of the differential treatment.

[24]      Furthermore, Corbière, supra, does not assist Ms. Beattie because the location of the farm is not an immutable personal characteristic. While off-reserve residence was found to be such a characteristic, it is at least a personal characteristic. The location of Ms. Beattie's farm is not a personal characteristic of hers, let alone an immutable personal characteristic. It is a characteristic of the farm. While there is no doubt that Ms. Beattie is attached to her farm, it is for present purposes simply an economic asset, and its acquisition or disposition, a simple economic transaction.

[25]      In the end result, I find that the right to agricultural assistance found in Treaty 11 does not entitle Ms. Beattie to assistance with respect to her farm which is located outside the Treaty 11 area.

D) RIGHT TO LEGAL ASSISTANCE PURSUANT TO THE AGRICULTURAL ASSISTANCE PROVISION OF TREATY 11

[26]      Turning now to the claim for legal assistance, it is not sufficient to say that since there is no right to agricultural assistance outside the Treaty 11 area, there can be no right to legal assistance to secure that right. The claim for legal assistance is a claim for assistance in the process, not a claim for the result.

[27]      It may be useful to put this matter in context. If Ms. Beattie retained a lawyer, paid the lawyer's fees as they were invoiced in the course of the litigation, and was successful in her claim, she would almost certainly recover taxable costs of the action. I say almost certainly because costs are discretionary and could conceivably be withheld from a successful plaintiff. That is not a likely occurrence in this case. Taxable costs would represent only a portion of the amounts which Ms. Beattie would have paid her lawyer. The shortfall would have to be absorbed by Ms. Beattie as a cost of litigation. In extraordinary circumstances, Ms. Beattie might recover her costs on a solicitor-and-client basis. This would come closer to full reimbursement though some fees and disbursements which Ms. Beattie had paid might be taxed off by the assessment officer, which would mean that the defendant would not be responsible for paying them. Once again, the loss would fall on Ms. Beattie. What Ms. Beattie seeks in her action is to have her legal fees paid in the first instance by the Minister, without having to wait to see if she succeeds in the action and without the risk of a shortfall. In other words, the Minister would pay Ms. Beattie's legal bills as they came due regardless of the outcome.

[28]      The first approach to this problem must be to focus on the Treaty to see if the claim made is supported by the words used in the Treaty. On this view, the right to legal assistance, if found, would only apply to claims for agricultural assistance. A second approach is to treat the claim for legal assistance as the assertion of an incidental right under the Treaty, that is a right which is necessary in order to give substance to a right protected by treaty. In such a case, the right would necessarily apply to the enforcement of all rights under the Treaty.

[29]      The nature of agricultural assistance has already been explored. Can it be said that the payment of legal fees is part of such assistance as is deemed necessary to allow Ms. Beattie to engage in agricultural pursuits? Clearly, litigation is not a means of developing a sustainable agricultural operation. It is a process by which one seeks to vindicate a claim of rights but it is not the rights claimed. There is no reason to believe on historical grounds that it would have been in the contemplation of the parties, nor is there any ground for asserting that it represents the modern exercise of the rights contemplated by the parties.

[30]      Can the claim for legal assistance be supported under a theory of incidental rights? The Supreme Court of Canada has on previous occasions described the reach of incidental treaty rights. In R. v. Simon, [1985] 2 S.C.R. 387 at p. 403, (1985), 62 N.R. 366, Chief Justice Dickson stated that:

It should be clarified at this point that the right to hunt to be effective must embody those activities reasonably incidental to the act of hunting itself, an example of which is travelling with the requisite hunting equipment to the hunting grounds. ( . . .) it is implicit in the right granted under article 4 of the Treaty of 1752 that the appellant has the right to possess a gun and ammunition in a safe manner in order to be able to exercise the right to hunt.

[31]      More recently, Cory J. in R. v. Sundown, [1999] 1 S.C.R. 393, at paragraph 30,stated that:

In order to determine what is reasonably incidental to a treaty right to hunt, the reasonable person must examine the historical and contemporary practice of that specific treaty right by the aboriginal group in question to see how the treaty right has been and continues to be exercised. That which is reasonably incidental is something which allows the claimant to exercise the right in the manner that his or her ancestors did, taking into account acceptable modern developments or unforeseen alterations in the right.

[32]           This case may differ from cases like Simon and Sundown in that the core right is itself undefined, as opposed to the right to hunt which was in issue in those cases. Hunting is an activity which is rooted in Indian history so that the right to hunt is a right to do something which is known. There is no Indian history of receiving agricultural assistance apart from the treaty process itself so that there is no cultural or historical medium from which one can derive a core meaning. The only history is the history of treaty making and the treaties themselves.

[33]      The examination of Treaty 11 undertaken earlier in these reasons defines a core treaty right, in relation to agricultural assistance, which consists of the right to assistance in establishing a sustainable enterprise anchored in the productive capacity of the land. One cannot define a priori those things which might be incidental to the core right which is thus circumscribed. That determination must be done on the basis of assertions of a specific right which can then be measured against the content of the core right of agricultural assistance. The assertion made here is the right to payment of legal fees to enforce the right to agricultural assistance. The form of the assertion demonstrates its nature. The payment of legal fees is incidental to the activity of enforcing the right to a treaty benefit. It is not incidental to the treaty benefit, agricultural assistance, but to the process whereby an Indian seeks to compel the Crown to live up to its bargain. While there is a logical thread connecting these elements one to the other, it does not follow that what is incidental to the enforcement process is incidental to each of the rights whose enforcement is sought. Such a finding would create a sort of meta-right, incidental to entire treaties, a concept which has not emerged from the abundant litigation between Indians and the Crown. In the end, I conclude that there is no right to legal assistance to secure the payment of agricultural assistance.

[34]      The creation of a right to legal assistance for litigation to enforce treaty rights at the instance of an individual would increase rather than decrease the incidence of litigation. While there must be a way of holding one who defaults on their treaty obligations to account, there is much to be said for the approach endorsed by LaForest J. in Delgamuukw v. British Columbia, supra, at paragraph 207:

I wish to emphasize that the best approach in these types of cases is a process of negotiation and reconciliation that properly considers the complex and competing interests at stake. This point was made by Lambert J.A. in the [British Columbia] Court of Appeal, [1993] 5 W.W.R. 97, at pp. 379-80:

So, in the end, the legal rights of the Indian people will have to be accommodated within our total society by political compromises and accommodations based in the first instance on negotiation and agreement and ultimately in accordance with the sovereign will of the community as a whole. The legal rights of the Gitksan and Wet'suwet'en peoples, to which this law suit is confined, and which allow no room for any approach other than the application of the law itself, and the legal rights of all aboriginal peoples throughout British Columbia, form only one factor in the ultimate determination of what kind of community we are going to have in British Columbia and throughout Canada in the years ahead.

[35]      The courts will always have a role in the adjudication of treaty claims but this is not to say that litigation is the best way to resolve treaty disputes.

[36]      In the result, the motion for summary judgment will be granted and each Statement of Claim will be dismissed.

ORDER

     It is hereby ordered that the motion for summary judgment Action No. T-361-93 is granted and the Statement of Claim is dismissed. Costs, if sought, may be spoken to.

     It is further ordered that the motion for summary judgment in Action No. T-2216-91 is granted and the Statement of Claim is dismissed. Costs, if sought, may be spoken to.

"J.D. Denis Pelletier"

Judge