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Indigenous - Treaty Interpretation (2). Wabauskang First Nation v. R.
In Wabauskang First Nation v. R. (Ont Divisional Ct, 2025) the Divisional Court dismissed a first nations JR, here against "two decisions ... to "take up" land pursuant to Treaty No. 3 without the Crown first discharging their constitutional duty to consult the Applicants".
Here the court considers the SOR for treaty interpretation:Standard of Review:
[45] The Ministry's interpretation of Treaty No. 3 and the effect of the TLE process on the Ministry's ability to dispose of land, are questions of law and reviewable on a standard of correctness: see Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511, at para. 63, Association of Iroquois and Allied Indians v. Ontario (Minister of Environment, Conservation and Parks), 2022 ONSC 5161, at para. 7 and Fletcher v. Ontario, 2024 ONCA 48 at para. 54. . Chippewas of Saugeen First Nation v. South Bruce Peninsula (Town)
In Chippewas of Saugeen First Nation v. South Bruce Peninsula (Town) (Ont CA, 2024) the Ontario Court of Appeal considered an indigenous claim seeking damages and a declaration that "excluded coastline (the “Disputed Beach”) forms part of the Reserve, that no third parties have any interest in the Disputed Beach, and that the honour of the Crown and its fiduciary duties were breached by the wrongful demarcation of the Reserve boundaries".
Here the court reviews principles of treaty interpretation:(a) The principles of treaty interpretation
[74] The principles of treaty interpretation are well-established.
[75] Treaties constitute a unique type of agreement. They represent a solemn and sacred exchange of promises between the Crown and First Nations signatories. As such they attract special principles of interpretation: Restoule (SCC), at paras. 70, 79; Marshall, at para. 14, per Binnie J., and at para. 78, per McLachlin J. (dissenting, but not on this point); and Badger, at para. 41.
[76] The treaty-making process with First Nations always engages the honour of the Crown. The interpretation of treaties must be approached in a manner that maintains the integrity of the Crown. In searching for the common intention of the parties, the integrity and honour of the Crown is always presumed: Restoule (SCC), at paras. 71-73; Marshall, at para. 78, per McLachlin J. (dissenting, but not on this point); and Badger, at para. 41.
[77] In interpreting a treaty, the court’s task is to identify possible interpretations of the common intention of the parties at the time the treaty was made, and to choose from among those possible interpretations the one that best reconciles the interests of the First Nations and the Crown: Restoule (SCC), at paras. 78-81; Marshall, at para. 14, per Binnie J., and at para. 78, per McLachlin J. (dissenting, but not on this point).
[78] When engaging in this task, the court must consider the written text of the treaty and evidence about the context and surrounding circumstances in which the treaty was negotiated. While the treaty text serves as a starting point, the court can consider extrinsic evidence even in the absence of an ambiguity: Restoule (SCC), at paras. 78-81; Marshall, at para. 11, per Binnie J., and at para. 81, per McLachlin J. (dissenting, but not on this point).
[79] A technical, strict, or contractual approach to interpretation should be avoided. The court must take a purposive approach to the interpretation of a treaty obligation, informed by the honour of the Crown and recognizing that treaty promises are “solemn promises” and that treaties are sacred: Restoule (SCC), at paras. 70, 78-81, and 96; Marshall, at para. 14, per Binnie J., and at para. 78, per McLachlin J. (dissenting, but not on this point); and Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40, [2018] 2 S.C.R. 765, at para. 28. Treaties should be liberally construed, and ambiguities or doubtful expressions should be resolved in favour of the Indigenous signatories: Restoule (SCC), at paras. 78-79; Marshall, at para. 78, per McLachlin J. (dissenting, but not on this point); and Badger at paras. 41, 52.
[80] Because a court interpreting a treaty must consider both the words of the treaty and the historical and cultural context, it is useful to approach treaty interpretation using the two-step process outlined by McLachlin J. in Marshall, at paras. 82-83, which was recently endorsed by the Supreme Court in Restoule (SCC), at para. 80 (quoting Marshall):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. 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. [Citations omitted.] ....
[83] The trial judge began her analysis of the Treaty with a comprehensive summary of the legal principles applicable to treaty interpretation. Her summary quoted the nine principles enumerated by McLachlin J. at para. 78 of Marshall and referenced the two-step approach endorsed by McLachlin J. at paras. 82-83 of that decision. The trial judge’s summary of the applicable principles also drew on the majority decision in Marshall, other decisions of the Supreme Court, and this court’s decision in Restoule v. Canada (Attorney General), 2021 ONCA 779, 466 D.L.R. (4th) 1 (“Restoule (ONCA)”), rev’d in part, 2024 SCC 27, 494 D.L.R. (4th) 383 (the Supreme Court’s decision in Restoule (SCC) had not yet been released at the time of the trial judgment). In her summary of the principles, the trial judge repeatedly described her ultimate task as to consider the various possible interpretations of the Treaty based on the text of the Treaty and the cultural and historical context, and to choose the interpretation which best reconciles the “common intention” of the First Nation and the Crown.
[84] Near the end of her correct summary of the principles of treaty interpretation, the trial judge wrote: “After going through this exercise [i.e., consideration of the text and the cultural and historical context], the court is to choose from the available reasonable interpretations the one that reflects the most generous reading of the treaty in favour of the First Nation.”
[85] If one reads the sentence above in isolation and as a statement of the ultimate task of treaty interpretation, it is not a correct statement of the law. However, the impugned sentence must be read in context. The sentence ends with a footnote with pinpoint paragraph references to six Supreme Court of Canada cases, which all confirm the proposition that treaties relating to First Nations that contain ambiguous expressions should be resolved in favour of the First Nations. It is clear, therefore, from the references in the footnote that in the impugned sentence the trial judge was referring to the principle that if terms of a treaty remain ambiguous after considering the text and cultural and historical context, the ambiguity should be resolved in favour of the First Nation. This principle was also recently reaffirmed by the Supreme Court in Restoule (SCC), at paras. 79, 164; see also Badger, at paras. 9, 52; R. v. Simon, 1985 CanLII 11 (SCC), [1985] 2 S.C.R. 387, at p. 402; R. v. Sioui, 1990 CanLII 103 (SCC), [1990] 1 S.C.R. 1025, at p. 1035; and Ermineskin Indian Band and Nation v. Canada, 2009 SCC 9, [2009] 1 S.C.R. 222, at para. 64.
[86] Further, in addition to these references in the footnote, the impugned sentence must be read in the context of the trial judge’s otherwise correct statement of the principles applicable to treaty interpretation – the principles she in fact applied – and in the context of her reasons as a whole. In her summary of the applicable principles, the trial judge said seven times – either in her own words or in quotations from decisions of the Supreme Court or this court – that the goal of treaty interpretation was to look for the “common intention” of the parties. The trial judge could have expressed herself more clearly in the impugned sentence. But her summary of the applicable law makes clear that she understood that from the various possible interpretations of the Treaty, she was required to choose the one which best reconciles the common intention of the parties based on the text and the cultural and historical record.
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[97] In sum, we conclude that the trial judge understood that her task was to interpret the Treaty in light of its text and the cultural and historical context and to choose the meaning that best reconciles the interests of the First Nation and the Crown. Her reasons demonstrate that she applied the correct principles in arriving at her interpretation of the Treaty. . Chippewas of Saugeen First Nation v. South Bruce Peninsula (Town) [SOR]
In Chippewas of Saugeen First Nation v. South Bruce Peninsula (Town) (Ont CA, 2024) the Ontario Court of Appeal considered an indigenous claim seeking damages and a declaration that "excluded coastline (the “Disputed Beach”) forms part of the Reserve, that no third parties have any interest in the Disputed Beach, and that the honour of the Crown and its fiduciary duties were breached by the wrongful demarcation of the Reserve boundaries".
The court sets out the SOR for treaty interpretation, here in an appeal:[72] As we explain below, we reject Ontario’s arguments that the trial judge misapplied the principles of treaty interpretation. The issue of whether the trial judge erred with respect to the legal principles applicable to treaty interpretation is reviewable on the correctness standard because it is a question of law: Restoule (SCC), at para. 89.
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[118] The standard of review in relation to factual findings is deferential. Factual findings by the trial judge underpinning her interpretation of the Treaty, including findings of historical fact, attract deference and are reviewable only for palpable and overriding error: Restoule (SCC), at paras. 114-19. . 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.
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[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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