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Indigenous - History. Dickson v. Vuntut Gwitchin First Nation
In Dickson v. Vuntut Gwitchin First Nation (SCC, 2024) the Supreme Court of Canada considered the relation of aboriginal rights and the Charter (here s.15 discrimination), focussing primarily on Charter s.25 ['Aboriginal rights and freedoms not affected by Charter'].
Here the court considers the Canadian constitutional history of indigenous people:(c) Historical Origins, Meaning and Purpose of Aboriginal and Treaty Rights
[132] Aboriginal and treaty rights referred to in s. 35 of the Constitution Act, 1982 shed light on the protection afforded by s. 25, which refers, in part, to the same rights. Section 35 gives those rights constitutional status by protecting them from unjustified infringement by legislative and executive action (see Sparrow).
[133] In Van der Peet, Lamer C.J. explained that the doctrine of Aboriginal rights and the approach to interpreting those rights liberally in the Constitution is explained by plain historical fact: “. . . when Europeans arrived in North America, [A]boriginal peoples were already here, living in communities on the land, and participating in distinctive cultures, as they had done for centuries” (para. 30 (emphasis in original)). He therefore stated that s. 35 is designed to “provide the constitutional framework through which the fact that [A]boriginals lived on the land in distinctive societies, with their own practices, traditions and cultures, is acknowledged and reconciled with the sovereignty of the Crown” (para. 31).
[134] Section 35 also constitutionally entrenched treaty rights held by the Aboriginal peoples of Canada, which s. 35(3) states, for greater certainty, “includes rights that now exist by way of land claims agreements or may be so acquired”. This constitutional guarantee is warranted because “a treaty represents an exchange of solemn promises between the Crown and the various [First] [N]ations. It is an agreement whose nature is sacred” (R. v. Badger, 1996 CanLII 236 (SCC), [1996] 1 S.C.R. 771, at para. 41).
[135] The Court has given full expression to the purposes of s. 35 by recognizing that Aboriginal and treaty rights extend to a wide range of underlying constitutional interests. For instance, constitutional recognition of Indigenous peoples’ relationships with the land can ground the right for an Indigenous people to hold land title that, in some circumstances, rests on s. 35 (see Delgamuukw; Tsilhqot’in Nation v. British Columbia, 2014 SCC 44, [2014] 2 S.C.R. 257). Further, treaties may address various interests, including interests related to land or self-government (see, e.g., First Nation of Nacho Nyak Dun, at para. 10).
[136] In Kapp, Bastarache J. drew upon Professor Macklem’s view that the broad scope of the interests of the Indigenous peoples of Canada that may be recognized as constitutionally entrenched are those related to “[I]ndigenous difference”. Professor Macklem observed that Indigenous difference reflects “four complex social facts [that] lie at the heart of the relationship between Aboriginal people and the Canadian state” (p. 4). These are: “. . . Aboriginal cultural difference, Aboriginal prior occupancy, Aboriginal prior sovereignty, and Aboriginal participation in a treaty process . . .” (p. 4).
[137] Relying on the Court’s opinion in the Secession Reference connecting both s. 35 and s. 25 to a tradition of constitutional protection of minority rights, Ms. Dickson asserts that s. 25 protects initiatives designed to preserve or enhance Indigenous difference. The Attorney General of Alberta intervenes to argue similarly that s. 25 “enables an approach that protects interests associated with Indigenous difference from erosion by individual Charter rights” (I.F., at para. 20). The VGFN resists this conclusion, and answers that this characterization would exclude a wide range of self-governance rights and unduly limit s. 25’s protections. Instead, the VGFN ties the impugned residency requirement to Indigenous difference and the continuance of a pre-contact Indigenous legal order.
[138] Indigenous difference is an appropriate criterion for circumscribing the “other rights or freedoms” under s. 25 because it helps identify the contours of the provision’s protective purpose if there is a conflict with an individual Charter right. Indigenous difference connects the “other righ[t] or freedo[m]” to the collective minority interest that s. 25 is designed to serve. When Indigenous difference is not shown to underlie the competing collective interest, the ultimate justification for setting aside the individual Charter right falls away. The concept of Indigenous difference connects the “other rights” to the rest of s. 25 and gives content to what it means for a right or freedom to belong to or benefit — to meaningfully “pertain to” — the Aboriginal peoples of Canada.
[139] The clear relationship between ss. 25 and 35 suggests that their purposes must be seen as related. Section 35 speaks to how the Canadian Constitution protects Indigenous difference from unjustified legislative or executive infringement. In the same spirit, s. 25 ensures that the individual rights in the Charter do not themselves undermine Indigenous difference where they abrogate or derogate from the measures that protect that difference. . Dickson v. Vuntut Gwitchin First Nation
In Dickson v. Vuntut Gwitchin First Nation (SCC, 2024) the Supreme Court of Canada considers the history of aboriginal rights in Canadian law, here while setting out it's interaction with Charter rights:(2) Indigenous Self-Government and the Charter
[46] Before considering whether the Charter applies to the VGFN’s residency requirement, it is useful to review the historical and policy context for Indigenous self-government in Canada, including under the Charlottetown Accord of 1992, the federal government’s “Inherent Right Policy” since 1995, and the final Report of the Royal Commission on Aboriginal Peoples published in 1996. It is also useful to review how courts have consistently applied the Charter to Indigenous governments.
[47] As a preliminary matter, we note that although this Court has yet to recognize an inherent right to Indigenous self-government as an Aboriginal right protected under s. 35 of the Constitution Act, 1982 (see R. v. Pamajewon, 1996 CanLII 161 (SCC), [1996] 2 S.C.R. 821, at para. 24; Delgamuukw v. British Columbia, 1997 CanLII 302 (SCC), [1997] 3 S.C.R. 1010, at para. 171), an inherent right to Indigenous self-government has now been affirmed on the international plane by Article 4 of the United Nations Declaration on the Rights of Indigenous Peoples, U.N. Doc. A/RES/61/295, October 2, 2007. In 2016, the Canadian government supported the Declaration and committed to adopt and implement it in accordance with the Canadian Constitution. Recent federal legislation has affirmed the Declaration as “a universal international human rights instrument with application in Canadian law” and provides “a framework for the Government of Canada’s implementation of the Declaration” (United Nations Declaration on the Rights of Indigenous Peoples Act, S.C. 2021, c. 14 (“UNDRIP Act”), s. 4). For example, the Declaration has been implemented specifically in respect of the provision of Indigenous child and family services under the Act respecting First Nations, Inuit and Métis children, youth and families, S.C. 2019, c. 24 (see Reference re An Act respecting First Nations, Inuit and Métis children, youth and families, 2024 SCC 5).
(a) The Charlottetown Accord of 1992
[48] Section 32(1) of the Charter does not expressly provide that the Charter applies to Indigenous governments. However, the Draft Legal Text of the Charlottetown Accord of 1992 had proposed to amend s. 32 of the Charter to recognize, in s. 32(1)(c), that the Charter applies “to all legislative bodies and governments of the Aboriginal peoples of Canada in respect of all matters within the authority of their respective legislative bodies” (p. 36). It had also proposed to add a new s. 35.1 of the Constitution Act, 1982 to provide in part that “[t]he Aboriginal peoples of Canada have the inherent right of self-government within Canada” (p. 37). The Accord was approved by the federal, provincial, and territorial governments and by the Assembly of First Nations, Inuit Tapirisat of Canada, Native Council of Canada, and Métis National Council, but was not ratified because it did not receive the support of a majority of Canadians in a national referendum (see Hogg and Wright, §§ 4:3 and 28:42). Even so, it is noteworthy that these proposed constitutional amendments saw the inherent right to self-government as compatible with the obligation of Indigenous governments to comply with the Charter.
(b) Federal Government Policy Since 1995
[49] Despite the failure of the Charlottetown Accord, since 1995 the federal government’s policy, first articulated under its “Inherent Right Policy”, has been that Indigenous peoples in Canada have an inherent right to self-government guaranteed under s. 35 of the Constitution Act, 1982, but also that the Charter applies to Indigenous governments. The policy recognizes the historical fact that Indigenous peoples were living in self-governing communities before Europeans arrived, and seeks to ensure that Indigenous governments, like other governments in Canada, comply with the Charter. The federal government sees these two policy objectives as compatible. As the Government of Canada explained in its “Inherent Right Policy”:The Government is committed to the principle that the Canadian Charter of Rights and Freedoms should bind all governments in Canada, so that Aboriginal peoples and non-Aboriginal Canadians alike may continue to enjoy equally the rights and freedoms guaranteed by the Charter. Self-government agreements, including treaties, will, therefore, have to provide that the Canadian Charter of Rights and Freedoms applies to Aboriginal governments and institutions in relation to all matters within their respective jurisdictions and authorities.
The Charter itself already contains a provision (section 25) directing that it must be interpreted in a manner that respects Aboriginal and treaty rights, which would include, under the federal approach, the inherent right. The Charter is thus designed to ensure a sensitive balance between individual rights and freedoms, and the unique values and traditions of Aboriginal peoples in Canada.
(Crown-Indigenous Relations and Northern Affairs Canada, The Government of Canada’s Approach to Implementation of the Inherent Right and the Negotiation of Aboriginal Self-Government, last updated March 1, 2023 (online); see also Crown-Indigenous Relations and Northern Affairs Canada, General Briefing Note on Canada’s Self-government and Comprehensive Land Claims Policies and the Status of Negotiations, last updated August 16, 2016 (online).) [50] Since 1995, the federal government has negotiated many self-government agreements with Indigenous communities across Canada, which have recognized that the Charter, the Canadian Human Rights Act, R.S.C. 1985, c. H-6, and the Criminal Code, R.S.C. 1985, c. C-46, continue to apply to Indigenous peoples (Crown-Indigenous Relations and Northern Affairs Canada, Self-government, last updated August 25, 2020 (online); see, e.g., the Tsawwassen First Nation Final Agreement (2007), c. 2, s. 9, which provides that the Charter applies to the Tsawwassen government in respect of all matters within its authority; Nisga’a Final Agreement (1999), c. 2, s. 9; Maa-nulth First Nations Final Agreement (2009), s. 1.3.2). The federal government has also affirmed that self-government agreements negotiated before 1995 will, as a general principle, “continue to operate according to their existing terms” (The Government of Canada’s Approach to Implementation of the Inherent Right and the Negotiation of Aboriginal Self-Government). This includes the Self-Government Agreement with the VGFN.
(c) The Legal Policy Debate About Applying the Charter to Indigenous Governments
[51] Shortly after the failure to ratify the 1992 Charlottetown Accord, the Royal Commission on Aboriginal Peoples extensively studied whether the Charter should apply to Indigenous governments exercising inherent self-government powers. The Royal Commission concluded that the Charter applies, but in accordance with s. 25, it should be “given a flexible interpretation that takes account of the distinctive philosophies, traditions and cultural practices of Aboriginal peoples” (Report of the Royal Commission on Aboriginal Peoples (“RCAP Final Report”), vol. 2, Restructuring the Relationship (1996), at p. 234). We will return later to the Royal Commission’s perspective on the intimate connection between ss. 32 and 25 of the Charter. That perspective takes a broad view of the application of the Charter to Indigenous governments under s. 32(1), but also interprets the Charter under s. 25 with sensitivity to the collective rights of Indigenous peoples, to protect what the Royal Commission referred to as their “distinctive philosophies, traditions and cultural practices” — or what Professor Patrick Macklem has encapsulated in the term “[I]ndigenous difference” (Indigenous Difference and the Constitution of Canada (2001)). As we explain below, s. 25 was included in the Charter as a protection for the distinctive minority rights of Indigenous peoples that might be abrogated or derogated from by the application of individual Charter rights.
[52] The RCAP Final Report, published in 1996, described two approaches to addressing whether the Charter applies to Indigenous governments exercising inherent self-government powers. The first approach claims that Indigenous governments should be bound by the Charter as a matter of basic constitutional principle, because “it would be highly anomalous if Canadian citizens enjoyed the protection of the Charter in their relations with every government in Canada except for Aboriginal governments” (vol. 2, at p. 227). This approach does not see the Charter as necessarily inconsistent with Indigenous values, because the Charter itself is “modelled on international standards with universal application” (p. 228).
[53] The second approach described by the RCAP Final Report asserts that Indigenous governments should not be bound by the Charter, because Indigenous peoples did not “consen[t] to the application of the Charter in a binding constitutional instrument, such as a self-government treaty with the Crown” (vol. 2, at p. 228). It also claims that “some Charter provisions reflect individualistic values that are antithetical to many Aboriginal cultures, which place greater emphasis on the responsibilities of individuals to their communities” (p. 230). This approach claims that applying the Charter to Indigenous governments “could hamper and even stifle the efforts of Aboriginal nations to revive and strengthen their cultures and traditions” and “might operate as the unwitting servant of the forces of assimilation and domination” (p. 230).
[54] After studying these issues extensively, the Royal Commission settled on an intermediate approach embodying three basic principles. First, all Canadians — Indigenous and non-Indigenous alike — are “entitled to enjoy the protection of the Charter’s general provisions in their relations with governments in Canada, no matter where in Canada the people are located or which governments are involved” (p. 230). Second, Indigenous governments “occupy the same basic position relative to the Charter as the federal and provincial governments” (p. 230). And third, the Charter should apply to Indigenous governments and be “interpreted in a manner that allows considerable scope for distinctive Aboriginal philosophical outlooks, cultures and traditions”, based on the “interpretive rule . . . found in section 25 of the Charter” (p. 230).
[55] The Royal Commission’s final recommendation was thus that the Charter applies to Indigenous governments, but under s. 25, the Charter must be interpreted flexibly to account for the distinctive philosophies, traditions, and cultural practices of Indigenous peoples (RCAP Final Report, vol. 2, at p. 234; see also Royal Commission on Aboriginal Peoples, Partners in Confederation: Aboriginal Peoples, Self-Government, and the Constitution (1993), at pp. 39-41; Royal Commission on Aboriginal Peoples, Bridging the Cultural Divide: A Report on Aboriginal People and Criminal Justice in Canada (1996), at pp. 262-64).
[56] The debate on whether the Charter should apply to Indigenous governments is complex and has generated a rich academic literature on both sides of the issue, some of which the Royal Commission drew on in reaching its conclusions and making its recommendations (see, e.g., B. Slattery, “First Nations and the Constitution: A Question of Trust” (1992), 71 Can. Bar Rev. 261; J. Borrows, “Contemporary Traditional Equality: The Effect of the Charter on First Nation Politics” (1994), 43 U.N.B.L.J. 19; P. W. Hogg and M. E. Turpel, “Implementing Aboriginal Self-Government: Constitutional and Jurisdictional Issues”, in Royal Commission on Aboriginal Peoples, Aboriginal Self-Government: Legal and Constitutional Issues (1995), 375; K. McNeil, “Aboriginal Governments and the Canadian Charter of Rights and Freedoms” (1996), 34 Osgoode Hall L.J. 61; K. Wilkins, “… But We Need the Eggs: The Royal Commission, the Charter of Rights and the Inherent Right of Aboriginal Self-government” (1999), 49 U.T.L.J. 53; Macklem, at pp. 194-233; S. Grammond, Terms of Coexistence: Indigenous Peoples and Canadian Law (2013), at pp. 428-38; G. Otis, “La gouvernance autochtone avec ou sans la Charte Canadienne?” (2005), 36 Ottawa L. Rev. 207; G. Otis, “Gouvernance autochtone et droits ancestraux: une relation nouvelle entre la collectivité et l’individu?”, in A. Lajoie, ed., Gouvernance autochtone: aspects juridiques, économiques et sociaux (2007), 40; D. L. Milward, Aboriginal Justice and the Charter: Realizing a Culturally Sensitive Interpretation of Legal Rights (2012), at pp. 62-77; M. Watson, “Reconciling Sovereignties, Reconciling Peoples: Should the Canadian Charter of Rights and Freedoms Apply to Inherent-right Aboriginal Governments?” (2019), 2:1 Inter Gentes 75; N. Metallic, “Checking our Attachment to the Charter and Respecting Indigenous Legal Orders: A Framework for Charter Application to Indigenous Governments” (2022), 31:2 Const. Forum 3; K. Gunn, “Towards a Renewed Relationship: Modern Treaties & the Recognition of Indigenous Law-Making Authority” (2022), 31:2 Const. Forum 17; A. Swiffen, “Dickson v Vuntut Gwitchin First Nation, Section 25 and a Plurinational Charter” (2022), 31:2 Const. Forum 27; R. Beaton, “Doctrine Calling: Inherent Indigenous Jurisdiction in Vuntut Gwitchin” (2022), 31:2 Const. Forum 39; R. Hamilton, “Self-Governing Nation or ‘Jurisdictional Ghetto’? Section 25 of the Charter of Rights and Freedoms and Self-Governing First Nations in Canada” (2022), 27:1 Rev. Const. Stud. 279).
(d) Courts Have Consistently Applied the Charter to Indigenous Governments
[57] Against this policy backdrop, courts at all levels have recognized that the Charter applies to Indian band councils exercising governmental powers under the Indian Act, because such powers have a statutory foundation and are delegated by Parliament (see, e.g., Corbiere v. Canada (Minister of Indian and Northern Affairs), 1999 CanLII 687 (SCC), [1999] 2 S.C.R. 203; Taypotat v. Taypotat, 2013 FCA 192, 365 D.L.R. (4th) 485, at paras. 36-39, rev’d 2015 SCC 30, [2015] 2 S.C.R. 548; McCarthy v. Whitefish Lake First Nation No. 128, 2023 FC 220, 524 C.R.R. (2d) 103, at para. 93; Linklater v. Thunderchild First Nation, 2020 FC 1065, 96 Admin. L.R. (6th) 233, at para. 16; Horse Lake First Nation v. Horseman, 2003 ABQB 152, 223 D.L.R. (4th) 184, at paras. 14-29; see also G. Régimbald and D. Newman, The Law of the Canadian Constitution (2nd ed. 2017), at §18.17; J. Woodward, Aboriginal Law in Canada (loose-leaf), at § 6:6; Brun, Tremblay and Brouillet, at p. 972; M. Buist, Halsbury’s Laws of Canada — Aboriginal (2020 Reissue), at pp. 110-11).
[58] Courts have also recognized that the Charter applies to Indigenous governments operating under legislation outside the framework of the Indian Act (see, e.g., Chisasibi Band v. Napash, 2014 QCCQ 10367, [2015] 1 C.N.L.R. 16, at paras. 49-106). . Fletcher v. Ontario
In Fletcher v. Ontario (Ont CA, 2024) the Court of Appeal considered (and dismissed) a native appeal concerning the instatement of an indigenous reserve after the Crown had failed in a Treaty duty to establish one since 1906. The essential issue of the case was the size of a 'new' reserve, as the Treaty calculated that by the native population - but was that the 1906 population or the modern population (ie. the 'crystallization date')? The trial court found it to be the 1906 population.
These quotes state an interesting case study of the legal history of natives in Canada:[4] The population of the MCFN has increased since 1906. The threshold question before this court is: as of what point in time (the “crystallization date”) should the population of the MCFN be determined for the purposes of calculating the size of the reserve under Treaty No. 9? In other words, should the calculation be based on the size of the Missanabie Cree population as at the date that the appellants entered into the treaty, or as it has become?
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[10] In 1993, the MCFN submitted a specific claim to Canada for reserve lands. In 1995, the appellants commenced this action. Their claims are as pleaded in their Amended Fresh as Amended Statement of Claim in April 2011. They seek two main forms of relief: (i) a declaration that, pursuant to Treaty No. 9, Canada and Ontario are obligated to set apart reserve lands for them based upon the population of the Missanabie Cree First Nation on the date of declaration; and (ii) damages, on a joint and several liability basis, against Canada and Ontario in the amount of $160,000,000, comprised of $50 million each for breach of the Treaty, breach of fiduciary duty, and special damages, plus $10 million as punitive damages. This includes damages for loss of use of a reserve and damages associated with the Crown’s granting of mineral rights to the land and limiting hunting and trapping rights.
[11] The action was placed in abeyance to facilitate negotiations under Canada’s Specific Claims Policy, which requires that active litigation be stayed while negotiations continue. Canada accepted the claim for negotiation under the Specific Claims Policy in 1996 and Ontario accepted the claim for negotiation under the same process in 2000. Ontario withdrew from negotiations in 2005 and negotiations between Canada and the MCFN were unsuccessful, leading the appellants to revive the litigation.
[12] In 2010, Canada and Ontario issued their defences and cross-claimed against each other. Ontario claimed that “while Ontario has the ability to make appropriate public lands available for the establishment of a reserve, the liability for the cost of providing such lands, the value of such lands and any damages or other liability resulting from the fact that the Plaintiffs were not provided with a reserve in 1906 or pursuant to subsequent requests made by the Plaintiffs is Canada’s and Canada’s alone.” Canada similarly sought an order “that any and all relief and costs to which this Court might find the Plaintiffs entitled in the main action is relief and costs against Ontario only or, in the alternative, an order directing Ontario to indemnify Canada in the amount of any relief and costs for which this Court finds Canada liable to the Plaintiffs; and its costs of this action.”
[13] In 2010, Ontario and the MCFN also reached an agreement to convey 15 square miles of land to the MCFN, which were transferred in 2014 (and recognized by Canada as a reserve in 2018). This agreement is to be set off against Ontario’s liability to provide land for the setting apart of the reserve found in this case and against any damages if applicable.
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C. BACKGROUND FACTS
[17] The history of Treaty No. 9 and the circumstances that have led to this litigation are critical to an understanding of the issues at the heart of this litigation. Evidence on the history and background was led by the three expert witnesses chosen by the parties who produced a joint report with the facts that they agreed upon. They were called together, as a panel, to give evidence at trial. The background set out in these reasons, unless otherwise indicated, is taken from their evidence (as well as fresh evidence admitted on appeal, which will be discussed later).
[18] Missanabie is located just north of the “height of land” separating the Lake Superior and James Bay watersheds, which also separates the lands covered by the 1850 Robinson-Superior Treaty to the south and Treaty No. 9 to the north. The headwaters of both the Michipicoten River, which flows into Lake Superior, and the Missinaibi River, a tributary of the Moose River that flows into James Bay, are in the immediate vicinity of Missanabie.
[19] The Canadian Pacific Railway ran through the height of land separating the watersheds, between Dog Lake and Crooked Lake, and was completed in 1885. The settlement which would come to be known as Missanabie was established adjacent to the railway just west of where it crossed Dog Lake. The Ojibway used and occupied the Michipicoten River, south of the height of land, and the Cree and Ojibway used and occupied the region to the north.
[20] There is evidence that the Cree who gathered at Missanabie originated from families whose hunting grounds were in the Moose River Basin and had traded primarily at Moose Factory.
[21] By the late nineteenth century, however, the lives of First Nation peoples living north of the height of land were becoming increasingly disturbed by the completion of the Canadian Pacific Railway and attendant settlement along the line. Beginning in the mid-1880s and extending to the early 1900s, First Nations asked for a treaty. Their game was disturbed, their livelihoods were disrupted, and their lands were trespassed upon. They sought annuities and land reserved for them and protected from further encroachment. At the same time, some were moving closer to the railway line in order to better access markets.
[22] Beginning in the mid-1880s, various First Nations made requests of the Crown to sign a treaty in the area, in response to their concerns related to the arrival of the railway and accompanying development. Eventually, a decision was taken by the Crown to pursue a treaty following the numbered treaty model rather than as an extension of the Robinson treaties. It was thought that 2,365 Indigenous people would be involved in such a treaty. For the purposes of financial planning, the population was estimated at 3,000. It was estimated that approximately 100 were staying in the vicinity of Missanabie.
[23] In 1894, Canada and Ontario had agreed that any future treaties in the province would require concurrence from Ontario. The two Crowns differed on the degree to which the choice of reserve lands would be left to First Nations, with Ontario seeking to have final decision-making authority. Through discussions, the two Crowns agreed to include the following provision in Orders-in-Council, which the federal government determined would still give First Nations a voice in the selection of reserves through a Treaty Commission, which was passed in July 1905:... [T]he setting apart and location of reserves … not greater than one square mile for each family of five, or in like proportion, at points to be chosen by the Commissioners negotiating the said Treaty, one of the said Commissioners to be appointed by the Lieutenant-Governor of Ontario in Council, and said selection to be subject to the approval of the Lieutenant-Governor of Ontario in Council. [24] As expressed by the three historians, the clear intention was to have the locations of the reserves “arranged” by agreement at the time that the Commissioners met with the First Nations. These pre-arrangements required obtaining a close approximation of the band population. Given that pay-lists had to be created to distribute the initial gratuities to be paid to First Nation members as part of the Treaty, upper limits of square mileages could also be determined at the time of the Treaty and suitable reserve size agreed to by the parties.
[25] The three Commissioners appointed were Duncan Campbell Scott, Samuel Stewart, and Daniel George MacMartin (the latter as Ontario’s representative) (“the Commissioners”). The Treaty expedition stretched over two summers, from 1905 to 1906. The expert witnesses agree that Missanabie was identified as one of the locations to be visited with a view to negotiating a treaty, although the schedule had to be modified several times.
[26] The Commissioners adopted two different approaches for including First Nation peoples in Treaty No. 9. The first method, “to make treaty”, involved holding a treaty council with selected First Nation leaders and representatives of a population assembled at a post, having the treaty explained and interpreted, answering any questions, obtaining a signed adhesion, holding a feast, having a treaty chief and councillors “elected”, providing the chief with a flag and copy of the treaty, and selecting a reserve for the treaty band through consultation with First Nation leaders. The three historians referred to this method of adhering to the Treaty as the “predominant practice”. This practice was followed at Osnaburgh, Fort Hope, Marten Falls, English River, Fort Albany, Moose Factory, and New Post in 1905 and at Abitibi, Matachewan, Mattagami, Flying Post, New Brunswick House, and Long Lake in 1906.
[27] The second method, “meet and pay”, as reflected in the Agreed Statement of Facts, explicitly dispensed with the signed adhesion. This method focused on establishing pay-lists, explaining what acceptance of the money by First Nation members entailed, and distributing annuity payments. As a term of the Treaty, each member of a band that made treaty, separate from the granting of a reserve and hunting rights, received a payment of $8.00 and the promise of an annuity of $4.00 per year. “Meet and pay” meetings were held with First Nation populations at Biscotasing, Chapleau, Missanabie, and Heron Bay. Both the expert evidence and the Agreed Statement of Facts indicate that both forms of adherence comprise inclusion in the Treaty.
[28] In the 1905 expedition, the Commissioners “made treaty” with First Nations representatives at all but one location, Abitibi, where they arrived too late and had to return the next year. Similarly, in the 1906 expedition, formal adhesions were obtained at most of their stops. The records of the Commission are not consistent, but it appears that reserves were set aside and, usually, sized based on the formula of one square mile for every family of five or in like proportion.
[29] For 1906, the Commissioners reported holding meetings for the purpose of distributing gratuities to family heads (i.e., “meet and pay”) with First Nation populations at Biscotasing, Chapleau, Missanabie, and Heron Bay. Neither their diaries nor their joint report record that they met with leaders or selected representatives at any of those locations (including Missanabie). There is also no record that full explanatory treaty councils were held, or that signed adhesions to the Treaty were sought. No reserves were selected for the First Nation members they met at these locations with the exception of two small reserves established in response to requests by Ojibway and Cree at Chapleau, which did not conform to the Treaty No. 9 entitlement formula.
[30] The Commissioners had made treaty with the First Nations at Moose Factory in 1905, which is located on James Bay (far removed from Missanabie). In 1906, they made two stops at Missanabie, and 62 people were paid their annuity as “Moose Factory Crees at Missanabie”, but the Moose Factory reserve was not enlarged to account for them. (In fact, the Commissioners had asked for and likely received the pay-list for Moose Factory from the preceding year, so the historians were of the opinion that the Commissioners were likely aware that there was no duplication of names between the 1906 pay-list for the Moose Factory Cree at Missanabie and the Moose Factory Band as paid in 1905.)
[31] The key point is that First Nations at Missanabie were not treated as their own band and were not provided with a reserve.
[32] There was no record of either Ojibway or Cree requests for reserves at Missanabie at the time of Treaty. But to the extent that Cree absent from Moose Factory were residing at various points north of the railway, including Missanabie, they were not accounted for in the sizing of the reserve at Moose Factory.
[33] There was conflicting Commission evidence on First Nations’ understandings of the Treaty terms, and particularly the ability to make adjustments to their reserves at later dates.
[34] In 1907, the 16 reserves selected through the Treaty signings were approved and confirmed in an Order-in-Council. The reserves were then surveyed between 1907 and 1913. Officials of the Department of Indian Affairs directed the surveyors to set out the lands as described in the Schedules and to employ band members to assist in the surveys. The surface area of the reserves corresponded to those specified in the Schedules of Reserves attached to the Treaty, with only a few exceptions. One such exception was a reserve set aside for the “Moose Factory Crees at Chapleau”, which was augmented to account for land that was underwater. This change was approved by Order-in-Council.
[35] The three historians comment that a comparison of the reserve areas described in the Schedules of Reserves and those surveyed demonstrates that, aside from Fort Hope, the latter were derived from the former. This indicates that the size of the reserves was based on the known or recognized population at the time of Treaty. There was no evidence that the sizes of the reserves were adjusted to account for any population changes between the time of the Treaty and the time of the survey. The size of the reserves was fixed by the Treaty, to be calculated from the population at the time of the Treaty. With Fort Hope, the Commissioners had determined that the population at the time of Treaty could not be determined with certainty, and the Crown eventually requested a survey to confirm the reserve in 1909.
[36] There were also further adhesions to the Treaty by other First Nations, in 1929-30 (and later), and adjustments were made in reserve size for unknown reasons, or where groups splintered or amalgamated. In some cases, new reserves combined a portion of the acreage to which the original band was entitled under the Treaty description with additional quantities of land provided for “socio-economic” reasons.
[37] Following 1906, while the Cree at Missanabie were predominately identified as “Moose Factory Crees” in pay-lists until 1937, and on census returns until 1949, a comparison of the pay-lists for the Cree at Missanabie with those at Moose Factory shows that the two groups were always recorded as discrete and separate populations. There was no overlap or duplication between family heads appearing on the Moose Factory and Missanabie pay-lists. For the annuity payments, they were treated as distinct groups. From 1937 onwards, the Missanabie pay-lists dropped the modifier, “Moose Factory”, and began referring to the group simply as “Missanabie Cree(s)”. At various times, some Missanabie Cree were paid at other locations. However, the pay-lists since 1955 do not identify localities of payment and refer simply to “Missanabie Cree Band”.
[38] While there was limited evidence of whether the Missanabie Cree group saw themselves as a distinct, politically autonomous band at the time of Treaty, by the late 1920s there was some evidence that some self-ascribed as members of a “band”. The three historians concluded that there is insufficient evidence to determine how the Missanabie Cree self-identified and self-ascribed during the years shortly before and at the time of Treaty No. 9 in 1906. Documentary evidence from other observers at the time was equivocal: while some ascribed a Moose Factory identity to the Missanabie Cree, others implied they were a distinct group. There are indications of geographical clustering at Missanabie that suggest, at the very least, that the Cree had a sense of community distinct from their Ojibway neighbours.
[39] Between 1951 and 1998, there was some confusion as to whether the Missanabie Cree formed a band under the Indian Act, R.S.C. 1985, c I-5, as, among other issues, they did not have any members residing “on reserve” (because there was no reserve), and for a time the reserve for the Michipicoten Band (Ojibway) south of the railway was misattributed to the MCFN. This error was only finally clarified in 1998.
[40] There was also evidence that the Missanabie Cree had a sense of their rights under the Treaty. The evidence includes, for example, a petition and various letters asking for recognition of hunting rights in the 1920s. The first documented request for a reserve was in 1915 and again in 1929 and 1936. These requests were not fulfilled.
[41] The trial judge found that “what seems clear is the general acceptance that there were Crees at Missanabie who were generally accepted as a group with a communal society, which is to say, they were accepted and identified as a band.”
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