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Indigenous - Reserves. Little Black Bear First Nation v. Kawacatoose First Nation
In Little Black Bear First Nation v. Kawacatoose First Nation (Fed CA, 2024) the Federal Court of Appeal dismissed a JR challenging a Specific Claims Tribunal (SCT) claim, here where the SCT excluded certain First Nations as beneficiaries from Indian Reserve No. IR 80A.
Here the court considers principles of interpretation on the creation of a reserve, including the Honour of the Crown and oral history:[38] The Tribunal also considered principles applicable in determining whether a reserve has been created. In one authority, Ross River Dena Council Band v. Canada, 2002 SCC 54, at paragraph 67, the Supreme Court instructed that the Crown must have an intention to create a reserve. The Tribunal concluded that the jurisprudence places great emphasis on Crown intent in resolving questions about reserve creation.
[39] The Tribunal also reviewed a decision with an issue similar to these applications: Canada (Attorney General) v. Anishnabe of Wauzhushk Onigum Band, [2003] 1 C.N.L.R. 6, 2002 CanLII 15761 (ON SC) [Anishnabe], aff’d [2004] 1 C.N.L.R. 35, 2003 CanLII 13835 (ON CA) [Anishnabe OCA]. In Anishnabe, the Court interpreted an Order in Council setting aside a reserve under Treaty 3 "“for the Saulteaux Tribe, generally”" in order to determine which specific Bands were the beneficial owners of the reserve. The Tribunal noted that, in this context also, the Court in Anishnabe focused its analysis on determining the Crown’s intention in creating the reserve.
[40] The Tribunal also discussed interpretive principles applicable to statutory provisions that impact Indigenous interests. These are to generously interpret ambiguous provisions, and to approach such provisions in a manner that upholds the honour of the Crown. The Tribunal (at paragraph 145) reproduced the general description of these principles from R. v. Badger, 1996 CanLII 236 (SCC), [1996] 1 S.C.R. 771 at paragraph 41:[41] First, it must be remembered that a treaty represents an exchange of solemn promises between the Crown and the various Indian nations. It is an agreement whose nature is sacred. … Second, the honour of the Crown is always at stake in its dealing with Indian people. Interpretations of treaties and statutory provisions which have an impact upon treaty or aboriginal rights must be approached in a manner which maintains the integrity of the Crown. It is always assumed that the Crown intends to fulfil its promises. … Third, any ambiguities or doubtful expressions in the wording of the treaty or document must be resolved in favour of the Indians. A corollary to this principle is that any limitations which restrict the rights of Indians under treaties must be narrowly construed. [41] With respect to the interpretation of ambiguous provisions, the Tribunal also set out the principle of generous interpretation from Osoyoos at paragraph 68, which involved the interpretation of an Order in Council:[68] ... if two approaches to the interpretation and application of an enactment are reasonably sustainable as a matter of law, then the interpretation or application that impairs the Indian interests as little as possible should be preferred, so long as the ambiguity is a genuine one, and the construction that is favourable to the Indian interests is one that the enactment will reasonably bear, having regard to the legislative purposes of the enactment ... [42] With respect to honour of the Crown, at paragraph 147 of the Decision the Tribunal referred also to the following excerpts from Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14 [Manitoba Metis]:[147] . . . “The honour of the Crown requires the Crown to act in a way that accomplishes the intended purposes of treaty and statutory grants to Aboriginal peoples . . .” (para 73(4)). The Court continued that the “honour of the Crown demands that constitutional obligations to Aboriginal peoples be given a broad, purposive interpretation”, and the “honour of the Crown requires it to act diligently in pursuit of its solemn obligations and the honourable reconciliation of Crown and Aboriginal interests”. [43] Finally, the Tribunal considered precedents on the use of oral history evidence in the adjudication of historical claims. The Tribunal employed the term "“Indigenous perspectives”" to describe the perspectives of the First Nation Elders and life speakers (Elders) who appeared as witnesses, regardless of whether or not the information was passed down by ancestors or these witnesses had personal knowledge.
[44] The Tribunal noted that the oral history authorities referred to by the parties arose in a different context – Indigenous rights and title litigation. However, it observed that "“the principles of necessity, reliability, relevance, and reconciliation are not logically restricted to that setting.”" (Decision at para. 153).
[45] Ultimately, the Tribunal concluded that since the interpretation of the Order in Council turns on the Crown’s intent, the oral history evidence should be considered from the perspective of whether it had a bearing on the intent of the Crown. Paragraph 166 of the Decision provides an example of where the Tribunal adopted this approach:[166] ... If, however, the Crown’s intent was found on the facts to include some but not all of the Claimants in PC 1151, then a Claimant’s sense of itself as belonging to, or having belonged to, the “Qu’Appelle Valley Indians” would not change that intention. Nor can the law relating to treaty interpretation, honour of the Crown and fiduciary obligations retroactively revise an order in council that the evidence clearly established had a more limited focus. ....
[90] In addition to these general principles [SS: "general principles of statutory interpretation"], the Tribunal referred to reserve creation jurisprudence. While acknowledging that the reserve creation context is different, the Tribunal found that this jurisprudence provided guidance. According to the Tribunal, Crown intention is emphasized in these authorities. (Decision at paras. 131-135).
[91] Through reliance on these principles, the Tribunal concluded that Crown intention should govern. This led the Tribunal to make an important finding that Indigenous perspectives cannot be taken into account unless the Crown’s intent is somehow linked to these perspectives. For example, in considering evidence of pre-contact history, the Tribunal stated: "“In this Claim, the Tribunal has been tasked with interpreting an order in council created by the Crown in furtherance of relationships established jointly between the Crown and the Claimants.”" (Decision at para. 158). As a result, although it is essential that pre-contact history be considered, it "“misses the mark, unless it can be established that such pre-contact history was in the Crown’s mind, or that the Crown’s intent was somehow linked to that context.”" (Decision at para. 158). This conclusion is referenced many times in the Decision, sometimes being described as requiring a "“nexus”" between the two perspectives.
[92] The Applicants submit that judicial authorities have accepted that Indigenous perspectives should be taken into account when interpreting an Order in Council, citing Anishnabe. However, Anishnabe is consistent with the approach taken by the Tribunal because Anishnabe considered Indigenous perspectives as part of the analysis to ultimately determine the intentions of the Crown (Decision at para. 169). The intention of the Crown was still the focal point of the analysis.
[93] In Anishnabe, the Crown created a reserve "“not to be for any particular Chief or Band, but for the Saulteaux Tribe, generally”" for the purpose of maintaining an Indian agency. In deciding for which of the Rainy River and Rainy Lake Bands the reserve was set apart pursuant to the Order in Council, the Court focused on determining the Crown’s intention when establishing the reserve (Anishnabe at paras. 51, 54, 80, 83). In its determination of the Crown’s intent, the judge considered the language of the Order in Council; evidence of the broader historical context, including the circumstances contemporaneous with or immediately following the Order in Council; and the conduct and actions of the parties following the date of a purported surrender of the reserve. The Court of Appeal for Ontario endorsed this approach to determining the Crown’s intent (Anishnabe OCA at para. 27).
[94] The Court in Anishnabe also considered Indigenous perspectives expressed in the oral evidence of Elders. However, it noted the Supreme Court’s guidance in Mitchell v. M.N.R., 2001 SCC 33 at para. 30 [Mitchell], that oral tradition evidence "“must be useful in the sense of tending to prove a fact relevant to the issues in the case”" and observed that oral evidence should be weighed against documentary evidence whose accuracy is established. The Court found that the oral evidence, "“while of some help, was vague and frequently not directly related to the issues before the court”" (Anishnabe at para. 58). Concluding that the historical record of events contemporaneous with the creation of the reserve was "“inconclusive, frequently vague and often conflicting,”" the Court held that the best evidence of the Crown’s intention with respect to beneficial entitlement to the reserve were three "“unequivocal”" acts of surrender taken by Crown representatives and signed by the Rainy Lake Bands (Anishnabe at para. 83). This conclusion was upheld on appeal (Anishnabe OCA at para. 43).
[95] The Tribunal’s approach to determining the question of entitlement is entirely consistent with that adopted in Anishnabe. The Tribunal looked not only at the wording of PC 1151 but at the historical record in order to ascertain the Crown’s intention regarding entitlement to IR 80A. Like the Court in Anishnabe, the Tribunal was open to considering the Indigenous perspectives expressed in the oral history evidence so long as these were relevant to the crucial question before it: which Bands did the Crown intend to benefit? As noted by the Tribunal, evidence regarding the Applicants’ perspectives "“might reveal that the Crown’s intentions were informed by the Indigenous organization and collectivities of the time”" (Decision at para. 166). Accordingly, the Tribunal’s search for a nexus between the oral history evidence and the Crown’s intention in creating IR 80A was consistent with Anishnabe.
[96] Finally, Little Black Bear relies on certain judicial decisions which gave significant weight to Indigenous perspectives as adduced through oral history evidence. However, this jurisprudence involved a much different context. For example, in Kwicksutaineuk/Ah-Kwa-Mish First Nation v. British Columbia (Agriculture & Lands), 2010 BCSC 1699, the Court sought to decide how to determine the members of a class of Indigenous plaintiffs who could claim an Aboriginal right to fish by virtue of their ancestral connection to an identifiable collective which engaged in that practice in pre-contact times. The Tribunal decided that this jurisprudence did not support Little Black Bear’s claim that "“Qu’Appelle Valley Indians”" should be interpreted consistently with pre-contact collectives that existed on the Prairies, because it did not involve the interpretation of an Order in Council created by the Crown (Decision at para. 158). In my view, Little Black Bear has not shown that this conclusion is unreasonable.
[97] Accordingly, I conclude that the Applicants have not demonstrated the Tribunal acted unreasonably in determining that Crown intent governs the interpretation of PC 1151 and that Indigenous perspectives do not assist this inquiry unless the evidence establishes a nexus between the two perspectives. . Chippewas of Nawash Unceded First Nation v. Canada (Attorney General)
In Chippewas of Nawash Unceded First Nation v. Canada (Attorney General) (Ont CA, 2023) the Court of Appeal considered the history and the nature of a native 'reserve':(3) Did the Crown owe a fiduciary duty to SON?
[163] SON argues that Treaty 45 ½ created a reserve, which, as such, gave rise to fiduciary duties on the Crown’s part. SON also argues that both the breaches of the honour of the Crown and the Crown’s failure to act with diligence to fulfil the promise in Treaty 45 ½ to protect the Peninsula from encroachment also amounted to breaches of both ad hoc and sui generis fiduciary duties owed by the Crown.
(a) Did Treaty 45 ½ create a reserve?
[164] The status of the SON lands retained after Treaty 45 ½ could have had some bearing on the question of whether a fiduciary duty was owed and, thus, the trial judge first dealt with the question of whether Treaty 45 ½ created a reserve.
[165] At trial, SON argued that Treaty 45 ½ created a reserve and, in light of the reserve’s creation, the Crown had additional legal duties to protect the Peninsula, above and beyond its treaty obligations and the obligations underpinning the honour of the Crown.
[166] The trial judge did not accept this argument.
[167] She began by noting that the word “reserve” was often used in historical documents, by witnesses, and by parties as a common and convenient name, in a non-legal sense, to refer to Indigenous lands. However, she acknowledged that, at the time of Treaty 45 ½, it was not always used in that way. For example, she cited legislation enacted in 1849 and 1850[7] in which the term “reserve” was used to describe Crown and Clergy lands, not Indigenous lands.
[168] SON’s submission, based on law developed under the Indian Act, R.S.C. 1985, c. I-5, was that Treaty 45 ½ created a reserve in the formal legal sense, with consequential added legal obligations.
[169] The Indian Act was first introduced in 1876, long after Treaty 45 ½ was signed. Section 2(1) of the Act defines a “reserve” as “a tract of land, the legal title to which is vested in His Majesty, that has been set apart by His Majesty for the use and benefit of a band.”
[170] The trial judge noted that, where lands qualify as a “reserve” under the Indian Act, a myriad of statutory provisions under the Act then apply, including many Crown obligations. Citing Madawaska Maliseet First Nation v. Canada, 2017 SCTC 5, at para. 335, she observed that “[f]inding that an Indian Act ‘reserve’ is created ‘means finding that the Crown intended that an exhaustive body of federal legislation would apply to regulate the reserve, necessitating a degree of federal administration, control and corresponding duties and costs’ that come along with it.”
[171] SON relied on the leading case interpreting the term “reserve” under the Indian Act: Ross River Dena Council Band v. Canada, 2002 SCC 54, [2002] 2 S.C.R. 816. Specifically, SON urged the trial judge to apply the following test for reserve creation, as set out at para. 67 of Ross River:1. That the Crown had the intention to create a reserve;
2. That this intention was possessed by Crown agents holding sufficient authority to bind the Crown;
3. That steps were taken to set the land apart for the benefit of the Indigenous group; and
4. That the Indigenous group accepted the setting apart of the land and began making use of those lands. The court continues at paras 172-178 to consider the facts of the case on the issue of whether a 'reserve' was created.
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