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Indigenous - Treaty Interpretation. Ontario (Attorney General) v. Restoule
In Ontario (Attorney General) v. Restoule (SCC, 2024) the Supreme Court of Canada considered an aborginal lawsuit filed in 2001 by members of the "Ojibewa (Anishinaabe) Nation who are beneficiaries of the Robinson-Huron Treaty of 1850".
In this context [paras 67-82], the court sets out key treaty interpretation principles:A. The Interpretation of Historic Aboriginal Treaties
[67] I begin by reviewing the principles for interpreting historic Aboriginal treaties, which were correctly identified by the trial judge and the Court of Appeal. I will focus on four relevant features figuring prominently in the discussion of the standard of review that follows in the next section: the nature of treaties as sui generis agreements intended to promote reconciliation; the importance of interpreting treaty rights in accordance with the honour of the Crown; the differences between historic and modern treaties; and finally, the particular principles governing the interpretation of historic treaties and the two-step approach to interpretation set out in this Court’s decision in R. v. Marshall, 1999 CanLII 665 (SCC), [1999] 3 S.C.R. 456.
(1) Treaties Are Sui Generis Agreements Intended To Advance Reconciliation
[68] Treaties have long been an important means of reconciling the interests of Aboriginal and non-Aboriginal peoples in Canada. Reconciliation is aimed at building a “mutually respectful long-term relationship” (Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53, [2010] 3 S.C.R. 103, at para. 10; R. v. Desautel, 2021 SCC 17, [2021] 1 S.C.R. 533, at para. 30). It has been described as both “a first principle of Aboriginal law” (Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40, [2018] 2 S.C.R. 765 (“Mikisew Cree 2018”), at para. 22) and “the grand purpose of s. 35 of the Constitution Act, 1982” (Little Salmon, at para. 10).
[69] As this Court explained in Little Salmon, at para. 8, per Binnie J.:Historically, treaties were the means by which the Crown sought to reconcile the Aboriginal inhabitants of what is now Canada to the assertion of European sovereignty over the territories traditionally occupied by First Nations. The objective was not only to build alliances with First Nations but to keep the peace and to open up the major part of those territories to colonization and settlement. [70] The Crown’s assertion of sovereignty over Aboriginal societies gave rise to a distinctive or sui generis legal relationship between the Crown and Aboriginal peoples (Desautel, at para. 25, citing R. v. Badger, 1996 CanLII 236 (SCC), [1996] 1 S.C.R. 771, at para. 78). That distinctive legal relationship is reflected in treaties, which represent an exchange of “solemn promises” and are unique or sui generis agreements governed by special rules of interpretation (Simon v. The Queen, 1985 CanLII 11 (SCC), [1985] 2 S.C.R. 387, at pp. 404 and 410; R. v. Sioui, 1990 CanLII 103 (SCC), [1990] 1 S.C.R. 1025, at pp. 1038 and 1043; Badger, at para. 41). Treaties are sui generis because “they are the product of the special relationship between the Crown and Aboriginal peoples that is aimed at achieving reconciliation” (P. W. Hogg and L. Dougan, “The Honour of the Crown: Reshaping Canada’s Constitutional Law” (2016), 72 S.C.L.R. (2d) 291, at p. 311).
(2) Treaty Rights Must Be Interpreted in Accordance With the Honour of the Crown
[71] This Court has also affirmed that in order to promote reconciliation, treaty rights must be interpreted in accordance with the honour of the Crown, “the principle that servants of the Crown must conduct themselves with honour when acting on behalf of the sovereign” (Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, [2013] 1 S.C.R. 623, at para. 65). The honour of the Crown imposes an “obligation of honourable dealing” with Aboriginal peoples (Little Salmon, at para. 42).
[72] The honour of the Crown is an ancient principle of common law dating back to pre-Norman England (Hogg and Dougan, at pp. 293-94, citing D. M. Arnot, “The Honour of the Crown” (1996), 60 Sask. L. Rev. 339). It was reflected in the Crown’s promise in the Royal Proclamation, 1763 that it would protect the Aboriginal peoples inhabiting the British territories of North America from exploitation by non-Aboriginal peoples (Little Salmon, at para. 42). Because of its connection with s. 35(1) of the Constitution Act, 1982, the honour of the Crown has been called “a constitutional principle” and is now “an important anchor in this area of the law” (Little Salmon, at para. 42; see also Manitoba Metis, at para. 69; Mikisew Cree 2018, at para. 24).
[73] The honour of the Crown is “always at stake” in the Crown’s dealings with Aboriginal peoples (Badger, at para. 41; Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511, at para. 16; Mikisew Cree 2018, at para. 23). The making, interpretation, and implementation of treaties must be approached in a way that maintains the honour and integrity of the Crown (Badger, at para. 41; Haida Nation, at paras. 17 and 19; Manitoba Metis, at para. 73).
[74] I will return to the honour of the Crown later when discussing the Crown’s obligation to implement the Augmentation Clause of the Robinson Treaties.
(3) Differences Between Historic and Modern Treaties
[75] Although all treaty rights must be interpreted in accordance with the honour of the Crown (Little Salmon, at para. 71; Hogg and Dougan, at pp. 314-16), there are important differences between historic and modern treaties. Historic treaties were negotiated between the Crown and Aboriginal peoples before 1921, while modern treaties were negotiated after 1973, in the wake of this Court’s decision in Calder v. Attorney-General of British Columbia, 1973 CanLII 4 (SCC), [1973] S.C.R. 313. Calder recognized Aboriginal rights with respect to land and led the Government of Canada to negotiate modern treaties in those parts of Canada where there were no treaties (see P. W. Hogg and W. K. Wright, Constitutional Law of Canada (5th ed. Supp.), at § 28:18; J. Jai, “Bargains Made in Bad Times: How Principles from Modern Treaties Can Reinvigorate Historic Treaties”, in J. Borrows and M. Coyle, eds., The Right Relationship: Reimagining the Implementation of Historical Treaties (2017), 105, at p. 105; J. Jai, “The Interpretation of Modern Treaties and the Honour of the Crown: Why Modern Treaties Deserve Judicial Deference” (2010), 26 N.J.C.L. 25, at pp. 27-28; D. Newman, “Contractual and Covenantal Conceptions of Modern Treaty Interpretation” (2011), 54 S.C.L.R. (2d) 475, at pp. 475-77).
[76] The difference between historic and modern treaties is not primarily about the age of the document. As Binnie J. remarked in Little Salmon, at para. 54, “[t]oday’s modern treaty will become tomorrow’s historic treaty. The distinction lies in the relative precision and sophistication of the modern document.” Historic and modern treaties were each negotiated under markedly different circumstances and often resulted in very different treaty texts. Historic treaties were often relatively brief, negotiated quickly, and intended to record oral promises made by the Crown to Indigenous signatories, who usually required translation and did not have the benefit of legal advice (Badger, at paras. 52-53; Quebec (Attorney General) v. Moses, 2010 SCC 17, [2010] 1 S.C.R. 557, at para. 7; Jai (2010), at p. 27). Such treaties were “typically expressed in lofty terms of high generality and were often ambiguous” (Little Salmon, at para. 12). As a result, “courts were obliged to resort to general principles (such as the honour of the Crown) to fill the gaps and achieve a fair outcome” (para. 12).
[77] Modern treaties, by contrast, are usually the “product of lengthy negotiations between well-resourced and sophisticated parties” (Little Salmon, at para. 9; First Nation of Nacho Nyak Dun v. Yukon, 2017 SCC 58, [2017] 2 S.C.R. 576, at para. 36). They often consist of minutely detailed instruments, negotiated over the course of years, with the Indigenous signatories represented by lawyers and other experts (First Nation of Nacho Nyak Dun, at para. 36; Moses, at para. 7; Hogg and Wright, at § 28:38). As a result, because “[c]ompared to their historic counterparts, modern treaties are detailed documents[,] deference to their text is warranted” (First Nation of Nacho Nyak Dun, at para. 36).
(4) Principles Governing the Interpretation of Historic Treaties
[78] The legal principles governing the interpretation of historic treaties, such as the Robinson Treaties of 1850, are well established. The words in a treaty “must not be interpreted in their strict technical sense nor subjected to rigid modern rules of [interpretation]” (Badger, at para. 52, cited in Marshall, at para. 14). At the same time, as Binnie J. cautioned in Marshall, “‘[g]enerous’ rules of interpretation should not be confused with a vague sense of after-the-fact largesse” (para. 14):The special rules are dictated by the special difficulties of ascertaining what in fact was agreed to. The Indian parties did not, for all practical purposes, have the opportunity to create their own written record of the negotiations. Certain assumptions are therefore made about the Crown’s approach to treaty making (honourable) which the Court acts upon in its approach to treaty interpretation (flexible) . . . . The bottom line is the Court’s obligation is to “choose from among the various possible interpretations of the common intention [at the time the treaty was made] the one which best reconciles” the [Aboriginal] interests and those of the British Crown (Sioui, per Lamer J., at p. 1069 (emphasis added)). [para. 14] [79] In Marshall, McLachlin J., as she then was, dissenting on other grounds, summarized the principles for interpreting treaties as including the following (at para. 78):1. Aboriginal treaties constitute a unique type of agreement and attract special principles of interpretation: R. v. Sundown, 1999 CanLII 673 (SCC), [1999] 1 S.C.R. 393, at para. 24; R. v. Badger, 1996 CanLII 236 (SCC), [1996] 1 S.C.R. 771, at para. 78; R. v. Sioui, 1990 CanLII 103 (SCC), [1990] 1 S.C.R. 1025, at p. 1043; Simon v. The Queen, 1985 CanLII 11 (SCC), [1985] 2 S.C.R. 387, at p. 404. See also: J. [Sákéj] Youngblood Henderson, “Interpreting Sui Generis Treaties” (1997), 36 Alta. L. Rev. 46; L. I. Rotman, “Defining Parameters: Aboriginal Rights, Treaty Rights, and the Sparrow Justificatory Test” (1997), 36 Alta. L. Rev. 149.
2. Treaties should be liberally construed and ambiguities or doubtful expressions should be resolved in favour of the [A]boriginal signatories: Simon, supra, at p. 402; Sioui, supra, at p. 1035; Badger, supra, at para. 52.
3. The goal of treaty interpretation is to choose from among the various possible interpretations of common intention the one which best reconciles the interests of both parties at the time the treaty was signed: Sioui, supra, at pp. 1068-69.
4. In searching for the common intention of the parties, the integrity and honour of the Crown is presumed: Badger, supra, at para. 41.
5. In determining the signatories’ respective understanding and intentions, the court must be sensitive to the unique cultural and linguistic differences between the parties: Badger, supra, at paras. 52-54; R. v. Horseman, 1990 CanLII 96 (SCC), [1990] 1 S.C.R. 901, at p. 907.
6. The words of the treaty must be given the sense which they would naturally have held for the parties at the time: Badger, supra, at paras. 53 et seq.; Nowegijick v. The Queen, 1983 CanLII 18 (SCC), [1983] 1 S.C.R. 29, at p. 36.
7. A technical or contractual interpretation of treaty wording should be avoided: Badger, supra; Horseman, supra; Nowegijick, supra.
8. While construing the language generously, courts cannot alter the terms of the treaty by exceeding what “is possible on the language” or realistic: Badger, supra, at para. 76; Sioui, supra, at p. 1069; Horseman, supra, at p. 908.
9. Treaty rights of [A]boriginal peoples must not be interpreted in a static or rigid way. They are not frozen at the date of signature. The interpreting court must update treaty rights to provide for their modern exercise. This involves determining what modern practices are reasonably incidental to the core treaty right in its modern context: Sundown, supra, at para. 32; Simon, supra, at p. 402. [80] Justice McLachlin noted that because a court must consider both the words of a treaty and the historical and cultural context, it is useful to approach treaty interpretation in two steps. At the first step, the court focuses on the words of the treaty clause at issue and identifies the range of possible interpretations. At the second step, the court considers those interpretations against the treaty’s historical and cultural backdrop. As McLachlin J. explained (at paras. 82-83):First, the words of the treaty clause at issue should be examined to determine their facial meaning, in so far as this can be ascertained, noting any patent ambiguities and misunderstandings that may have arisen from linguistic and cultural differences. This exercise will lead to one or more possible interpretations of the clause. As noted in Badger, supra, at para. 76, “the scope of treaty rights will be determined by their wording”. The objective at this stage is to develop a preliminary, but not necessarily determinative, framework for the historical context inquiry, taking into account the need to avoid an unduly restrictive interpretation and the need to give effect to the principles of interpretation.
At the second step, the meaning or different meanings which have arisen from the wording of the treaty right must be considered against the treaty’s historical and cultural backdrop. A consideration of the historical background may suggest latent ambiguities or alternative interpretations not detected at first reading. Faced with a possible range of interpretations, courts must rely on the historical context to determine which comes closest to reflecting the parties’ common intention. This determination requires choosing “from among the various possible interpretations of the common intention the one which best reconciles” the parties’ interests: Sioui, supra, at p. 1069. Finally, if the court identifies a particular right which was intended to pass from generation to generation, the historical context may assist the court in determining the modern counterpart of that right: Simon, supra, at pp. 402-3; Sundown, supra, at paras. 30 and 33. [81] Justice McLachlin’s legal framework in Marshall reflects the current state of the law. It has been cited approvingly by this Court (R. v. Morris, 2006 SCC 59, [2006] 2 S.C.R. 915, at para. 18; Little Salmon, at para. 105, per Deschamps J., concurring) and by appeal courts across Canada (Beattie v. Canada, 2002 FCA 105, 288 N.R. 254, at para. 9; Horseman v. Canada, 2016 FCA 238, at para. 8 (CanLII); Canada v. Jim Shot Both Sides, 2022 FCA 20, 468 D.L.R. (4th) 98, at para. 170, rev’d in part 2024 SCC 12; West Moberly First Nations v. British Columbia, 2020 BCCA 138, [2021] 3 W.W.R. 561, at paras. 105-6, 149 and 277; Chingee v. British Columbia (Attorney General), 2005 BCCA 446, 261 D.L.R. (4th) 54, at para. 15; R. v. Morris, 2004 BCCA 121, 237 D.L.R. (4th) 693, at para. 39, rev’d 2006 SCC 59, [2006] 2 S.C.R. 915; Goodswimmer v. Canada (Attorney General), 2017 ABCA 365, 418 D.L.R. (4th) 157, at para. 50; Lac La Ronge Indian Band v. Canada, 2001 SKCA 109, 206 D.L.R. (4th) 638, at paras. 39 and 53; Newfoundland and Labrador v. Nunatsiavut Government, 2022 NLCA 19, at para. 20 (CanLII)). It was also cited and applied in the case under appeal by the trial judge (Stage One reasons, at paras. 324, 327-29 and 398-475) and the Court of Appeal for Ontario (para. 109, per Lauwers and Pardu JJ.A., and paras. 388 and 421, per Strathy C.J.O. and Brown J.A.). . 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. . 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 disregarded 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 band 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.
Here the court, starting with the trial court [paras 42-52], consider the interpretation of the Treaty:D. THE TRIAL JUDGE’S DECISION
[42] In approaching the interpretation of the reserve clause and looking for a common intention, the trial judge relied on the framework for the inquiry articulated by the Supreme Court of Canada in R. v. Marshall, 1999 CanLII 665 (SCC), [1999] 3 S.C.R. 456, paras. 82-83. The inquiry encompasses two steps:(1) An examination of the words of the treaty to determine their ‘facial’ [at face value] meaning having regard to any patent ambiguities and misunderstandings that may have arisen from linguistic and cultural differences. This exercise will lead to one or more possible interpretations of the clause. The objective at this stage is to develop a preliminary, but not necessarily determinative, framework for the historical context inquiry to follow.
(2) The meaning or different meanings which have arisen from the wording of the treaty must be considered against the treaty’s historical and cultural backdrop. A consideration of the historical background may suggest latent ambiguities or alternative interpretations not detected at first reading. Faced with a possible range of interpretations, courts must rely on the historical context to determine which comes closest to reflecting the parties’ common intention. [Footnotes omitted.] ....
[52] The trial judge also considered the case of Lac La Ronge Indian Band v. Canada, 2001 SKCA 109, 206 D.L.R. (4th) 638, leave to appeal refused, [2001] S.C.C.A. No. 647, in which the Saskatchewan Court of Appeal reversed the trial court and found that the crystallization date for the determination of reserve land entitlement was the current population and not the population at the time the Treaty was entered into. The trial judge did not find that Lac La Ronge assisted the appellants. Rather, he found that the decision depended on the particular wording and context of Treaty No. 6. He considered Lac La Ronge as part of the context, but found that it did not affect his ultimate conclusion:... there is nothing in the background that points to or suggests any alternate meaning to the reserve clause. The common intention of the parties was that any reserve was to be sized according to the population at the time the treaty was made. ....
[83] Treaty interpretation is a matter of law, reviewable on a correctness standard, while the factual findings underlying the conclusions about the content of a treaty are reviewable on a palpable and overriding error standard: Restoule, at paras. 393-410, citing Marshall and Caron v. Alberta, 2015 SCC 56, [2015] S.C.R. 511. The factual findings here were largely based on the parties’ joint evidence delivered through the joint expert report and as set out in the Agreed Statement of Facts. They remain largely uncontested on appeal.
[84] The principles of treaty interpretation are well-settled, but general in nature, such that their application will depend on the circumstances of each case. The parties agree that the trial judge correctly articulated the principles, including the two-step process articulated in Marshall as set out earlier in these reasons.
[85] The trial judge’s interpretation was well-supported by the record before him and by the wording of the reserve clause. I see no error, either of fact or of law. Indeed, the appellants do not point to any specific errors. Rather, they claim that the approach taken by the trial judge was wrong, and that he made unwarranted assumptions that led him to his conclusion. I do not agree. I see no error in the trial judge’s interpretation of the reserve clause and his application of these principles to the facts and circumstances, including the historical context, as the two-step approach and principles of treaty interpretation set out in Marshall required him to do. In my view, his conclusion that there was a common intention at the time of adhesion to the Treaty in 1906 that the population as at that date be calculated in order to determine the size of the reserve to which the Missanabie Cree were entitled was well-founded in both fact and law.
....
[93] One of the applicable principles is that 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 that treaty was signed: Marshall, at para. 78 citing R. v. Sioui, 1990 CanLII 103 (SCC), [1990] 1 S.C.R 1025, at pp. 1068-69. The time when the treaty was signed is a focus of the inquiry because of the difficulties interpreting a treaty presents, as noted by Binnie J. for the majority in Marshall, at para. 14:The [First Nation] parties did not, for all practical purposes, have the opportunity to create their own written record of the negotiations. Certain assumptions are therefore made about the Crown’s approach to treaty making (honourable) which the Court acts upon in its approach to treaty interpretation (flexible) as to the existence of a treaty ... the completeness of any written record ... and the interpretation of treaty terms once found to exist. The bottom line is the Court’s obligation is to “choose from among the various possible interpretations of the common intention [at the time the treaty was made] the one which best reconciles” the [First Nation] interests and those of the Crown. [Citations omitted.] [94] The task of the court when interpreting a treaty has not wavered from focusing on the evidence at the time the treaty was signed to elicit common intention: Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388, at para. 28; R. v. Marshall; R. v. Bernard, 2005 SCC 43, [2005] 2 S.C.R. 220, at paras. 22-24; Ermineskin Indian Band, at para. 55.
[95] Thus, “it is not sufficient to note that a treaty is silent on [a] point”; the treaty still must “be interpreted by determining the intention of the parties on the territorial question at the time it was concluded”: Sioui, at p. 1068 [emphasis added]. Even though Treaty No. 9 did not contain wording to account for the situation at hand, the goal remains choosing among various possible interpretations of common intention at the time the Treaty was signed. The mere fact that the reserve clause was silent as to the date of the crystallization of the population to determine the size of the reserve is not determinative one way or the other. . Fletcher v. Ontario [SOR]
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 disregarded 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 band population - but was that the 1906 population or the modern population? The trial court found it to be the 1906 population.
Here the court sets out the standard of review for issues of Treaty interpretation:(1) Standard of Review
[54] The parties agree that the standard of review for treaty interpretation is correctness: Restoule v. Canada (Attorney General), 2021 ONCA 779, 466 D.L.R. (4th) 1, at paras. 395, 404. They also agree that, in treaty interpretation cases, a trial judge’s findings of fact attract significant deference. However, the appellants argue that since the trial judge was not required to assess witness credibility because there were no conflicting testimonies at trial (due to the joint historians’ consensus-based evidence), the reason for appellate court deference falls away. They also argue that the distinction between narrative and a finding of fact is not always clear from the trial judge’s reasons, and a standard of correctness should therefore apply.
[55] I see no reason to depart from the standard of review set out in R. v. Marshall, 1999 CanLII 665 (SCC), [1999] 3 S.C.R. 456, and affirmed by the majority in Restoule in this case. The trial judge’s factual findings are entitled to deference (subject to palpable and overriding error) and his interpretation of Treaty No. 9 on the basis of those findings is a question of law, reviewable on a correctness standard.
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