Date: 20020307
Docket: T-2288-92
Neutral Citation: 2002 FCT 243
BETWEEN:
CHARLES JOHN GORDON BENOIT,
ATHABASCA TRIBAL CORPORATION,
THE LESSER SLAVE LAKE REGIONAL COUNCIL
and KEE TAS KEE NOW TRIBAL COUNCIL
Plaintiffs
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
Defendant
- and -
THE ATTORNEY GENERAL OF THE PROVINCE OF ALBERTA
Pursuant to s.57 of the Federal Court Act
- and -
THE CANADIAN TAXPAYERS FEDERATION
Intervener
[1] The honour of the Federal Crown has been placed in issue respecting its treaty making dealings at the end of the nineteenth century with the Aboriginal People of Northern British Columbia, Alberta, Saskatchewan, and the Southern Northwest Territories.
[2] At the time of entering into a treaty with Aboriginal People, a trust is assumed by the Crown in which it pledges its faith and honour to fulfill the terms and conditions negotiated. If a disagreement later arises, Courts are required to interpret the treaty in a manner which maintains the Honour of the Crown. In the present treaty dispute, the Aboriginal People ask that this be done. This decision meets that request.
Summary of Findings
[3] In the summer of 1899, in order to open the Peace-Athabasca country for settlement and commerce, the Government of Canada made promises to the Cree and Dene People which were to endure as long as the "sun shines and the water runs". In the course of securing agreement to what is Treaty 8, certain assurances were made by the Treaty Commissioners acting for Canada.
[4] After Treaty 8 was negotiated, the Commissioners reported to the Government that, during negotiations, an assurance was made by them to Aboriginal People that the Treaty did not "open the way to the imposition of any tax". The Plaintiffs read these words as a promise which constitutes a treaty right under s.35(1) of the Constitution Act, 1982, that Aboriginal People entitled to the benefits of the Treaty are not to have any tax imposed upon them at any time for any reason. As a result, the Plaintiffs formally question the constitutional applicability of Federal taxation provisions to beneficiaries of the Treaty.
[5] The Treaty Report respecting what was said and done at the time the Treaty was signed constitutes direct evidence that, indeed, a tax assurance was made. It is clear that during the negotiation of the Treaty, Aboriginal People expressed a concern about tax, the tax assurance was given in response to this concern, and the assurance was relied upon by Aboriginal People who took treaty. Thus, for the reasons which follow, I find that the tax assurance is a term of the Treaty.
[6] Because the words used in the Treaty Report to describe the tax assurance are ambiguous, a central issue in the trial of this action has been an attempt to find the reasonable meaning to be put to them at the time of negotiation, both in the minds of the Treaty Commissioners and the Aboriginal People to whom the assurance was made.
[7] Conflicting professional expert evidence has been lead to prove the reasonable interpretation. Aboriginal historical oral evidence has also been called to prove the understanding of the Aboriginal People to whom the tax assurance was made in the summer of 1899. On the analysis which follows, I find that a fundamental misunderstanding occurred between the Treaty Commissioners and the Aboriginal People concerning the intent and content of the tax assurance made and relied upon. It has been proved that there was no intention on the part of the Treaty Commissioners to grant the tax exemption claimed by the Plaintiffs, but the Aboriginal People believed a tax exemption Treaty promise was made. Thus, with respect to the tax assurance term of the Treaty, no intention common to both the Treaty Commissioners and the Aboriginal People can be found. Therefore, the primary question that arises in this action is: who takes responsibility for this misunderstanding?
[8] The central finding in this decision is that, in order for the Honour of the Crown to be maintained, the Defendant is required to recognize and fulfill the tax assurance as it was understood by the Aboriginal People. On the oral evidence, I find that the tax assurance was understood as the tax exemption claimed by the Plaintiffs, and, as such, I find it constitutes an enforceable treaty right.
[9] In my opinion, Canada has not extinguished this treaty right, and there is no justification proved for its infringement. Accordingly, as a matter of constitutional law, I find that Federal taxation provisions are of no force and effect with respect to beneficiaries of Treaty 8.
I. The Law of Treaty Interpretation
A. General principles
[10] The law with respect to treaty interpretation is well settled by the Supreme Court of Canada. An overview of the principles to be followed is provided by Chief Justice McLachlin in R. v.Marshall, [1999] 3 S.C.R. 456 at paragraph 78 as follows:
1. Aboriginal treaties constitute a unique type of agreement and attract special principles of interpretation: R. v. Sundown, [1999] 1 S.C.R. 393, at para. 24; R. v. Badger, [1996] 1 S.C.R. 771, at para. 78; R. v. Sioui, [1990] 1 S.C.R. 1025, at p. 1043; Simon v. The Queen, [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 aboriginal 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] 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] 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 aboriginal peoples must not be interpreted in a static or rigid way. They are not frozen at the date of signature. The interpreting court must update treaty rights to provide for their modern exercise. This involves determining what modern practices are reasonably incidental to the core treaty right in its modern context: Sundown,supra, at para. 32; Simon, supra, at p. 402.
Respecting the general approach to be followed in interpreting a particular treaty, the Chief Justice's statements at paragraphs 82 and 83 are important:
The fact that both the words of the treaty and its historic and cultural context must be considered suggests that it may be useful to approach the interpretation of a treaty in two steps. 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 [...] "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.
B. Principles important to the present case
1. Oral promises can be treaty terms
[11] The principle that treaty terms are not confined to the terms in the written treaty is definitively stated by Chief Justice Lamer in Badger at paragraph 52:
... when considering a treaty, a court must take into account the context in which the treaties were negotiated, concluded and committed to writing. The treaties, as written documents, recorded an agreement that had already been reached orally and they did not always record the full extent of the oral agreement: see Alexander Morris, The Treaties of Canada with the Indians of Manitoba and the North-West Territories (1880), at pp. 338-42; Sioui, supra, at p. 1068; Report of the Aboriginal Justice Inquiry of Manitoba (1991); Jean Friesen, Grant me Wherewith to Make my Living (1985). The treaties were drafted in English by representatives of the Canadian government who, it should be assumed, were familiar with common law doctrines. Yet, the treaties were not translated in written form into the languages (here Cree and Dene) of the various Indian nations who were signatories. Even if they had been, it is unlikely that the Indians, who had a history of communicating only orally, would have understood them any differently. As a result, it is well settled that the words in the treaty must not be interpreted in their strict technical sense nor subjected to rigid modern rules of construction. Rather, they must be interpreted in the sense that they would naturally have been understood by the Indians at the time of the signing. This applies, as well, to those words in a treaty which impose a limitation on the right which has been granted. [Emphasis added]
[12] The approach directed in Badger is further confirmed by Justice Cory in Sundown at paragraphs 24 and 25 as follows:
Treaties may appear to be no more than contracts. Yet they are far more. They are a solemn exchange of promises made by the Crown and various First Nations. They often formed the basis for peace and the expansion of European settlement. In many if not most treaty negotiations, members of the First Nations could not read or write English and relied completely on the oral promises made by the Canadian negotiators. There is a sound historical basis for interpreting treaties in the manner summarized in Badger. Anything else would amount to be a denial of fair dealing and justice between the parties.
Treaty rights, like aboriginal rights, are specific and may be exercised exclusively by the First Nation that signed the treaty. The interpretation of each treaty must take into account the First Nation signatory and the circumstances that surrounded the signing of the treaty. [Emphasis added]
2. Finding the common intention of the parties is required
[13] Justice Binnie in Marshall, at paragraph 14, explains that the objective of treaty interpretation is to determine the "common intention" of the parties:
"Generous" rules of interpretations should not be confused with a vague sense of after-the-fact largesse. 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) as to the existence of a treaty (Sioui, supra, at p. 1049), the completeness of the written record (the use, e.g., of context and implied terms to make honourable sense of the treaty arrangement: Simon v. The Queen, [1985] 2 S.C.R. 387, and R. v. Sundown, [1991] 1 S.C.R. 393), and the interpretation of treaty terms once found to exist (Badger). The bottom line is the Court's obligation is to "choose from among the various possible interpretations of the commonintention [at the time the treaty was made] the one which best reconciles" the Mi'kmaq interests and those of the British Crown (Sioui, per Lamer J., at p. 1069). [Emphasis added]
[14] With respect to the need to take particular care in determining the common intention, it is important to note the comment of Justice Lamer (as he then was) in Sioui where at 1069 he says:
With respect, I feel that adopting such a position would go beyond what General Murray intended. Even a generous interpretation of the document ... must be realistic and reflect the intention of both parties, not just that of the Hurons. The Court must choose from among the various possible interpretations of the common intention the one which best reconciles the Hurons' interests and those of the conqueror. [Emphasis added]
3. Treaty interpretation must be based on cogent evidence
[15] Chief Justice McLachlin in Mitchell, [2001] 1 S.C.R. 911, at paragraph 51 states a concern that a trial judge must find cogent evidence of an Aboriginal right before recognizing it:
...claims must be proven on the basis of cogent evidence establishing their validity on the balance of probabilities. Sparse, doubtful and equivocal evidence cannot serve as the foundation for a successful claim. The contradiction between McKeown J.'s statement that little direct evidence supports a cross-river trading right and his conclusion that such a right exists suggests the application of a very relaxed standard of proof (or, perhaps more accurately, an unreasonably generous weighing of tenuous evidence). The Van der Peet approach, while mandating the equal and due treatment of evidence supporting aboriginal claims, does not bolster or enhance the cogency of this evidence. The relevant evidence in this case - a single knife, treaties that make no reference to pre-existing trade, and the mere fact of Mohawk involvement in the fur trade - can only support the conclusion reached by the trial judge if strained beyond the weight they can reasonably hold. Such a result is not contemplated by Van der Peet or s.35(1). [Emphasis added]
The point made is most clearly stated at paragraph 42:
This is not to suggest that an aboriginal claim can never be established on the basis of minimal evidence, direct or otherwise, provided it is sufficiently compelling and supports the conclusions reached. In this case, however, the "little direct evidence" relied upon by the trial judge is, at best, tenuous and scant, and is perhaps better characterized as an absence of even minimally cogent evidence.
4. In treaty interpretation, the Honour of the Crown must be maintained
[16] Justice Binnie in Marshall at paragraphs 49-56 goes to some length to explain the very important concept of maintaining the Honour of the Crown as a necessary element of treaty interpretation:
This appeal puts to the test the principle, emphasized by this Court on several occasions, that the honour of the Crown is always at stake in its dealings with aboriginal people. This is one of the principles of interpretation set forth in Badger, supra, by Cory J., at para. 41:
. . . the honour of the Crown is always at stake in its dealings 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. No appearance of "sharp dealing" will be sanctioned.
This principle that the Crown's honour is at stake when the Crown enters into treaties with first nations dates back at least to this Court's decision in 1895, Province of Ontario v. Dominion of Canada and Province of Quebec; In re Indian Claims (1895), 25 S.C.R. 434. In that decision, Gwynne J. (dissenting) stated, at pp. 511-12:
. . . what is contended for and must not be lost sight of, is that the British sovereigns, ever since the acquisition of Canada, have been pleased to adopt the rule or practice of entering into agreements with the Indian nations or tribes in their province of Canada, for the cession or surrender by them of what such sovereigns have been pleased to designate the Indian title, by instruments similar to these now under consideration to which they have been pleased to give the designation of "treaties" with the Indians in possession of and claiming title to the lands expressed to be surrendered by the instruments, and further that the terms and conditions expressed in those instruments as to be performed by or on behalf of the Crown, have always been regarded as involving a trust graciously assumed by the Crown to the fulfilment of which with the Indians the faith and honour of the Crown is pledged, and which trust has always been most faithfully fulfilled as a treaty obligation of the Crown. [Emphasis added.]
See also Ontario Mining Co. v. Seybold (1901), 32 S.C.R. 1, at p. 2.
In more recent times, as mentioned, the principle that the honour of the Crown is always at stake was asserted by the Ontario Court of Appeal in Taylor and Williams, supra. In that case, as here, the issue was to determine the actual terms of a treaty, whose terms were partly oral and partly written. MacKinnon A.C.J.O. said for the court, at pp. 235-36:
The principles to be applied to the interpretation of Indian treaties have been much canvassed over the years. In approaching the terms of a treaty quite apart from the other considerations already noted, the honour of the Crown is always involved and no appearance of "sharp dealing" should be sanctioned. Mr. Justice Cartwright emphasized this in his dissenting reasons in R. v. George, [1966] S.C.R. 267 at p. 279, where he said:
We should, I think, endeavour to construe the treaty of 1827 and those Acts of Parliament which bear upon the question before us in such a manner that the honour of the Sovereign may be upheld and Parliament not made subject to the reproach of having taken away by unilateral action and without consideration the rights solemnly assured to the Indians and their posterity by treaty.
Further, if there is any ambiguity in the words or phrases used, not only should the words be interpreted as against the framers or drafters of such treaties, but such language should not be interpreted or construed to the prejudice of the Indians if another construction is reasonably possible: R. v. White and Bob (1964), 50 D.L.R. (2d) 613 at p. 652 . . . (B.C.C.A.); affirmed . . . [1965] S.C.R. vi. . . .
This statement by MacKinnon A.C.J.O. (who had acted as counsel for the native person convicted of hunting offences in George, supra) has been adopted subsequently in numerous cases, including decisions of this Court in Badger, supra, para. 41, and Sparrow, supra, at pp. 1107-8.
I do not think an interpretation of events that turns a positive Mi'kmaq trade demand into a negative Mi'kmaq covenant is consistent with the honour and integrity of the Crown. Nor is it consistent to conclude that the Lieutenant Governor, seeking in good faith to address the trade demands of the Mi'kmaq, accepted the Mi'kmaq suggestion of a trading facility while denying any treaty protection to Mi'kmaq access to the things that were to be traded, even though these things were identified and priced in the treaty negotiations. This was not a commercial contract. The trade arrangement must be interpreted in a manner which gives meaning and substance to the promises made by the Crown. In my view, with respect, the interpretation adopted by the courts below left the Mi'kmaq with an empty shell of a treaty promise.
II. Factual Background
A. The framing of this action
[17] The Plaintiffs' principal claim against Her Majesty the Queen in Right of Canada ("Canada") is set out in Paragraph 7 of the Plaintiffs' Amended Statement of Claim as follows:
The Treaty Commissioners promised the First Nations that, inter alia, Treaty No. 8 did not open the way to the imposition of any tax (the "subject promise"). The subject promise is a term of Treaty No. 8 and provided a corresponding right to the members of First Nations who are entitled to the benefits of Treaty No. 8, not to have any tax imposed upon them at any time for any reason (the "subject right")
[18] In addition, the Plaintiffs claim that the imposition of any tax by Canada is an unjustified breach of the promise claimed and ask for the Court to agree, and, thus, grant declaratory relief. The Plaintiffs argue that the promise is a treaty right protected by the Constitution. Section 35(1) of the Constitution Act, 1982, Schedule B to the Canada Act 1982 (U.K.) reads as follows:
|
35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. |
35. (1) Les droits existants -- ancestraux ou issus de traités -- des peuples autochtones du Canada sont reconnus et confirmés. |
[19] Further, by a formal Amended Notice of Constitutional Question dated February 8, 2000, the Plaintiffs reiterate their principal claim and assert that the beneficiaries of Treaty 8 have been, and continue to be, improperly taxed in violation of the promise, and, thus, question the applicability of the Income Tax Act, R.S.C. 1985 (5th Supp.) by serving notice of the following Constitutional Question pursuant to s.57 of the Federal Court Act:
The application of Federal taxation provisions to Indian beneficiaries of Treaty 8 is inconsistent with s.35 of the Constitution Act, 1982, Schedule B to the Canada Act 1982 (U.K.), and is therefore, to the extent of the inconsistency, of no force and effect.
[20] As allowed by being served with notice of the Constitutional Question, the Attorney General of Alberta ("Alberta") has intervened to exercise its right to adduce evidence and make submissions. In addition, the Appeal Division of this Court has granted intervener status to the Canadian Taxpayers Federation to make argument.
B. Agreed facts
[21] In R. v. Badger at paragraph 39, the Supreme Court of Canada concisely summarized the treaty making which took place in the area of Western Canada known as the Peace-Athabaska District:
Treaty No. 8 is one of eleven numbered treaties concluded between the federal government and various Indian bands between 1871 and 1923. Their objective was to facilitate the settlement of the West. Treaty No. 8, made on June 21, 1899, involved the surrender of vast tracts of land in what is now northern Alberta, northeastern British Columbia, northwestern Saskatchewan and part of the Northwest Territories. In exchange for the land, the Crown made a number of commitments.
[22] The sequence of events respecting the Treaty is not in issue. However, the context that prevailed, and its interpretation, certainly is. By the Agreed Statement of Facts (Exhibit 2), the parties agree as follows:
In 1870, the Hudson's Bay Company surrendered its rights to the North West to the Dominion of Canada. On June 27, 1898 the Privy Council by Order in Council appointed A.E. Forget ("Forget"), J.A.J. McKenna ("McKenna") and another to be appointed later, as commissioners to treat with the Indians north of Treaty Number six for the extinguishment of their title to the land (the Treaty 8 area). On October 4, 1898 the Privy Council by Order in Council advised that David Laird be appointed Indian Commissioner of Manitoba, Keewatin and the North West Territories.
On December 6, 1898, the Privy Council by Order in Council authorized notification to the province of British Columbia of the intention to negotiate a treaty.
On February 3, 1899, David Laird sent a circular letter into the Treaty 8 area by means of the Northwest Mounted Police and the Hudson's Bay Company.
On March 2, 1899, the Privy Council by Order in Council appointed J.H. Ross as the third Commissioner and replaced Mr. Forget with David Laird as Treaty Commissioner. P.C. 1703 is stamped "amended by PC 330.
On May 3, 1899, the Privy Council by Order in Council appointed Father A. Lacombe to accompany the Commissioners.
On May 6, 1899, the Privy Council by Order in Council approved that the claims of the Half-Breeds (Metis) be investigated and dealt with concurrently with the treaty negotiations.
On May 12, 1899, Clifford Sifton, the Superintendent General of Indian Affairs, sent a letter to the Commissioners handing them the Commission and providing the instructions of the Government.
On May 29, 1899, the Commission party left Edmonton, expecting to arrive at Lesser Slave Lake by June 8, 1899. Mr. Laird and Mr. McKenna and their party traveled to Athabasca Landing and then to Lesser Slave Lake, arriving there late on June 19, 1899, because of unfavorable traveling conditions. Mr. Ross and his party, traveled over the Assiniboine trail to Lesser Slave Lake arriving at Lesser Slave Lake on approximately June 5, 1899.
On June 20, 1899, the Commissioners met the Cree of Lesser Slave Lake. On that day the terms of treaty that the Government offered were conveyed in a meeting with the Cree of Lesser Slave Lake.
Treaty Number 8 was drafted and put in written form at Lesser Slave Lake following the meeting with the Cree on June 20, 1899.
On June 21, 1899, Treaty Number 8 was signed by the Commissioners and by representatives of the Cree of Lesser Slave Lake and adjacent territory authorised by their people to agree to the treaty.
The Commission Party then divided to offset the earlier delay in reaching Lesser Slave Lake by Mr. Laird and Mr. McKenna.
Mr. Laird traveled to Peace River Crossing and on July 1, 1899, the Cree of Peace River Crossing and adjacent territory adhered to Treaty Number 8 through their authorised representative.
Mr. Laird then traveled to Vermilion and on July 8, 1899 the Beaver and Cree of Vermilion and adjacent territory adhered to Treaty Number 8 through their authorised representatives.
Mr. Laird then traveled to Fond du Lac (Lake Athabasca) and on July 25 and 27, 1899 the Chipewyan, Fond du Lac and adjacent territory adhered to Treaty Number 8 through their authorised representatives.
Mr. Ross and Mr. McKenna traveled from Lesser Slave Lake to Dunvegan and on July 6, 1899 the Beaver and Dunvegan adhered to Treaty Number 8 through their authorised representative.
Mr. Ross and Mr. McKenna then traveled to Little Red River Post, arriving on July 10, 1899.
Mr. Ross and Mr. McKenna then traveled to Fort Chipewyan and on July 13, 1899 the Chipewyan of Athabasca River, Birch River, Peace River, Slave River and Gull River and the Cree of Gull River and Deep Lake adhered to Treaty Number 8 through their authorised representatives.
Mr. Ross and Mr. McKenna then traveled to Smiths' Landing and on July 17, 1899 the Chipewyan of Slave River and the Country thereabouts adhered to Treaty Number 8 through their authorised representatives.
Mr. Ross and Mr. McKenna then divided their party. Mr. McKenna traveled to Fort McMurray and on August 4, 1899 the Chipewyan and Cree of Fort McMurray and the Country thereabouts adhered to Treaty Number 8 through their authorised representatives.
Mr. Ross traveled to Wapiscow (also know as Wabasca) and on August 14, 1899, the Indian of Wapiscow and the Country thereabouts adhered to Treaty Number 8 through their authorised representatives.
By way of a report dated September 22, 1899, the Treaty Commissioners, Messrs Laird, Ross and McKenna reported to the Honourable Clifford Sifton, Superintendent General of Indian Affairs.
Treaty 8 was ratified by the Privy Council on February 20, 1900.
On March 2, 1900, the Privy Council by Order in Council appointed J.A. Macrae to take further adhesions to Treaty Number 8.
On May 30, 1900, at Fort St. John, the Beaver of Upper Peace River and the Country thereabouts adhered to Treaty Number 8 through their authorised representatives.
On June 8, 1900, at Lesser Slave Lake, the Cree of Sturgeon Lake and the Country thereabouts adhered to Treaty Number 8 through their authorised representatives.
On June 23, 1900 at Vermilion, the Slave of Hay River and the Country thereabouts adhered to Treaty Number 8 through their authorised representatives.
On July 25, 1900, at Fort Resolution, the Indians inhabiting the south shore of Great Slave Lake, between the mouth of Hay River and old Fort Reliance, near the mouth of Lockhearts river and adjacent territory adhered to Treaty Number 8 through their authorised representatives.
By way of a report dated December 11, 1900, Commissioner Macrae reported to The Honourable Superintendent General of Indian Affairs.
The Adhesions to Treaty 8 made in 1900 were ratified on January 3, 1901. (Exhibit 2)
C. Documentary Evidence
1. The Treaty Report
[23] The " Report of Commissioners for Treaty No. 8" (the "Treaty Report"), directed to the Honourable Clifford Sifton, Minister of the Interior and Superintendent General of Indian Affairs, is in fact dated September 22, 1899, and contains the following quoted passage, the meaning of which is the subject of strong debate in the present case:
As the discussions at the different points followed on much the same lines, we shall confine ourselves to a general statement of their import. There was a marked absence of the old Indian style of oratory. Only among the Wood Crees were any formal speeches made, and these were brief. The Beaver Indians are taciturn. The Chipewyans confined themselves to asking questions and making brief arguments. They appeared to be more adept at cross-examination than at speech-making, and the Chief at Fort Chipewyan displayed considerable keenness of intellect and much practical sense in pressing the claims of his band. They all wanted as liberal, if not more liberal terms, than were granted to the Indians of the plains. Some expected to be fed by the Government after the making of treaty, and all asked for assistance in seasons of distress and urged that the old and indigent who were no longer able to hunt and trap and were consequently often in distress should be cared for by the Government. They requested that medicines be furnished. At Vermilion, Chipewyan and Smith's Landing, and earnest appeal was made for the services of a medical man. There was expressed at every point the fear that the making of the treaty would be followed by the curtailment of the hunting and fishing privileges, and many were impressed with the notion that the treaty would lead to taxation and enforced military service. They seemed desirous of securing educational advantages for their children, but stipulated that in the matter of schools there should be no interference with their religious beliefs.
We pointed out that the Government could not undertake to maintain Indians in idleness; that the same means of earning a livelihood would continue after the treaty as existed before it, and that the Indians would be expected to make use of them. We told them that the Government was always ready to give relief in cases of actual destitution, and that in seasons of distress they would without any special stipulation in the treaty receive such assistance as it was usual to give in order to prevent starvation among Indians in any part of Canada; and we stated that the attention of the Government would be called to the need of some special provision being made for assisting the old and indigent who were unable to work and dependent on charity for the means of sustaining life. We promised that supplies of medicines would be put in the charge of persons selected by the Government at different points, and would be distributed free to those of the Indians who might require them. We explained that it would be practically impossible for the Government to arrange for regular medical attendance upon Indians so widely scattered over such an extensive territory. We assured them, however, that the Government would always be ready to avail itself of any opportunity of affording medical service just as it provided that the physician attached to the Commission should give free attendance to all Indians whom he might find in need of treatment as he passed through the country.
Our chief difficulty was the apprehension that the hunting and fishing privileges were to be curtailed. The provision in the treaty under which ammunition and twine is to be furnished went far in the direction of quieting the fears of the Indians, for they admitted that it would be unreasonable to furnish the means of hunting and fishing if laws were to be enacted which would make hunting and fishing so restricted as to render it impossible to make a livelihood by such pursuits. But over and above the provision, we had to solemnly assure them that only such laws as to hunting and fishing as were in the interest of the Indians and were found necessary in order to protect the fish and fur-bearing animals would be made, and that they would be as free to hunt and fish after the treaty as they would be if they never entered into it.
We assured them that the treaty would not lead to any forced interference with their mode of life, that it did not open the way to the imposition of any tax, and there was no fear of enforced military service. We showed them that, whether treaty was made or not, they were subject to the law, bound to obey it, and liable to punishment for any infringements of it. We pointed out that the law was designed for the protection of all, and must be respected by all the inhabitants of the country, irrespective of colour or origin; and that, in requiring them to live at peace with white men who came into the country, and not to molest them in person or in property, it only required them to do what white men were required to do as to the Indians.
As to education, the Indians were assured that there was no need of any special stipulation, as it was the policy of the Government to provide in every part of the country, as far as circumstances would permit, for the education of Indian children, and that the law, which was as strong as a treaty, provided for non-interference with the religion of the Indians in schools maintained or assisted by the Government.
2. Historical records
[24] Filed by consent, some 375 archival records compose the bulk of the historical evidence considered by the experts who testified (Exhibit 3, Documents from Archives, Volumes 1-3). The evidence of oral tradition is independently analysed in Section IV(b) below.
3. Contemporaneous accounts
[25] The expert witnesses suggest that consideration should be given to the contemporaneous accounts of witnesses to the events. It is generally agreed that the account of Mr. Charles Mair ("Mair"), the English secretary to the scrip commission that travelled with the Treaty Commission, is objective and reliable, as found in his book Through the Mackenzie Basic (Edmonton: University of Alberta Press, 1999 [originally published in 1908]) which is Exhibit 5 in the present case.
[26] With respect to accuracy, it is interesting to note that the dedication of the book reads
To
The Hon. David Laird, leader of The Treaty Expedition of 1899
This record is cordially inscribed by his old friend, the author.
Thus, I find it is reasonable to conclude that pains would have been taken by Mair to accurately record Commissioner Laird's words spoken at the time of negotiation.
[27] Excerpts from Mair's account have often been referred to in evidence to reconstruct what happened at the time the Treaty was first framed at Lesser Slave Lake between June 19th and 21st, 1899. However, for the purposes of making findings in this and Sections III and IV below, I believe it is important to consider Mair's account in some detail to gain a useful sense of the relationship that existed between the Commissioners and the Aboriginal People at that critical moment in time.
[28] Accordingly, the following is most of Chapter III: Treaty at Lesser Slave Lake starting at page 53:
On the 19th of June our little fleet landed at Willow Point. There was a rude jetty, or wharf, at this place, below the little trading village referred to, at which loaded boats discharged. Formerly they could ascend the sluggish and shallow channel connecting the expansion of the Heart River, called Buffalo Lake, with the head of Lesser Slave Lake, a distance of about three miles, and as far as the Hudson's Bay Company's post, around which another trading village had gathered. This temporary fall in the water level partly accounted for the growth of the village at Willow Point, where sufficient interests had risen to cause a jealousy between the two hamlets. Once upon a time Atawaywé Kamick was supreme. This is the name the Crees give to the Hudson's Bay Company, meaning literally "the Buying House." But now there were many stores, and "free trade" was rather in the ascendant. In the middle was safety, and therefore the Commissioners decided to pitch camp on a beautiful flat facing the south and fronting the channel, and midway between the two opposing points of trade. A feu de joie by the white residents of the region, of whom there were some seventy or eighty, welcomed the arrival of the boats at the wharf, and after a short stay here, simply to collect baggage, a start was made for the camping ground, where our numerous tents soon gave the place the appearance of a village of our own.
Tepees were to be seen in all directions from our camp--the lodges of the Indians and half-breeds. But no sooner was the treaty site apparent than a general concentration
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took place, and we were speedily surrounded by a bustling crowd, putting up trading tents and shacks, dancing booths, eating-places, etc., so that with the motley crowd, including a large number of women and children, and a swarms of dogs such as we never dreamt of, amounting in a short space by constant accessions to over a thousand, we were in the heart of life and movement and noise.
Mr. Ross, as already stated, had gone on by trail from Edmonton, partly in order to inspect it, and managed to reach the lake before us, which was fortunate, since Indians and half-breeds had collected in large numbers, and he was thus able to allay their irritation and to distribute rations pending the arrival of the other members of the Commission. During the previous winter, upon the circulation in the North of the news of the coming treaty, discussion was rife, and every cabin and tepee rang with argument. The wiseacre was not absent, of course, and agitators had been at work for some time endeavouring to jaundice the minds of the people--half-breeds, it was said, from Edmonton, who had been vitiated by contact with a low class of white men there--and, therefore, nothing was as yet positively known as to the temper and views of the Indians. But whatever evil effect these tamperings might have had upon them, it was felt that a plain statement of the proposals of the Government would speedily dissipate it, and that, when placed before them in Mr. Laird's customary kind and lucid manner, they would be accepted by both Indians and half-breeds as the best obtainable, and as conducing in all respects to their truest and most permanent interests.
On the 20th the eventful morning had come, and, for a wonder, the weather proved to be calm, clear and pleasant. The hour fixed upon for the beginning of negotiations was two p.m., up to which time much hand-shaking had, of course, to be undergone with the constant new arrivals of natives from the forest and lakes around. The Church of England and Roman Catholic clergy, the only missionary
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bodies in the country, met and dined with our party, after which all adjourned to the treaty ground, where the people had already assembled, and where all soon seated themselves on the grass in front of the treaty tent--a large marquee--the Indians being separated by a small space from the half-breeds, who ranged themselves behind them, all conducting themselves in the most sedate and orderly manner.
Mr. Laird and the Commissioners were seated along the open front of the tent, and one could not but be impressed by the scene, set as it was in a most beautiful environment of distant mountains, waters, forests and meadows, all sweet and primeval, and almost untouched by civilized man. The whites of the region had also turned out to witness the scene, which, though lacking the wild aspect of the old assemblages on the plains in the early 'seventies, had yet a character of its own of great interest, and of the most hopeful promise.
The crowd of Indians ranged before the marquee had lost all semblance of wildness of the true type. Wild men they were, in a sense, living as they did in the forest and on their great waters. But it was plain that these people had achieved, without any treaty at all, a stage of civilization distinctly in advance of many of our treaty Indians to the south after twenty-five years of education. Instead of paint and feathers, the scalp-lock, the breech-clout, and the buffalo-robe, there presented itself a body of respectable-looking men, as well dressed and evidently quite as independent in their feelings as any like number of average pioneers in the East. Indeed, I had seen there, in my youth, many a time, crowds of white settlers inferior to these in sedateness and self-possession. One was prepared, in this wild region of forest, to behold some savage types of men; indeed, I craved to renew the vanished scenes of old. But, alas ! one beheld, instead, men with well-washed, unpainted faces, and combed and common hair; men in suits of ordinary "store-clothes," and some even with "boiled" if not laundered shirts. One felt dis-
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appointed almost defrauded. It was not what was expected, what we believed we had a right to expect, after so much waggoning and tracking and drenching, and river turmoil and trouble. This woeful shortcoming from bygone days attended other aspects of the scene. Instead of fiery oratory and pipes of peace--the stone calumets of old--the vigorous arguments, the outbursts of passion, and close calls from threatened violence, here was a gathering of commonplace men smoking briar-roots, with treaty tobacco instead of "weed," and those chiefs replied to Mr. Laird's explanations and offers in a few brief and sensible statements, varied by vigorous appeals to the common sense and judgment, rather than the passions, of their people. It was a disappointing, yet, looked at aright, a gratifying spectacle. Here were men disciplined by good handling and native force out of barbarism--of which there was little to be seen--and plainly on the high road to comfort; men who led inoffensive and honest lives, yet who expressed their sense of freedom and self-support in their speech, and had in their courteous demeanour the unmistakable air and bearing of independence. If provoked by injustice, a very dangerous people this; but self-respecting, diligent and prosperous in their own primitive calling, and able to adopt agriculture, or any other pursuit, with a fair hope of success when the still distant hour for it should arrive.
The proceedings began with the customary distribution of tobacco, and by a reference to the competent interpreters who had been appointed by the Commission, men who were residents, and well known to the Indians themselves, and who possessed their confidence. The Indians had previously appointed as spokesman their Chief and head-man, Keenooshayoo and Moostoos, a worthy pair of brothers, who speedily exhibited their qualities of good sense and judgment, and, Keenooshayo in particular, a fine order of Indian eloquence, which was addressed almost entirely to his own people, and which is lost, I am sorry to say, in the account here set down.
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Mr. Laird then rose, and having unrolled his Commission, and that of his colleagues, from the Queen, proceeded with his proposals. He spoke as follows :
"Red Brothers! we have come here to-day, sent by the Great Mother to treat with you, and this is the paper she has given to us, and is her Commission to us signed with her Seal, to show we have authority to treat with you. The other Commissioners, who are associated with me, and who are sitting here, are Mr. McKenna and Mr. Ross and the Rev. Father Lacombe, who is with us to act as counsellor and adviser. I have to say, on behalf of the Queen and the Government of Canada, that we have come to make you an offer. We have made treaties in former years with all the Indians of the prairies, and from there to Lake Superior. As white people are coming into your country, we have thought it well to tell you what is required of you. The Queen wants all the whites, half-breeds and Indians to be at peace with one another, and to shake hands when they meet. The Queen's laws must be obeyed all over the country, both by the whites and the Indians. It is not alone that we wish to prevent Indians from molesting the whites, it is also to prevent the whites from molesting or doing harm to the Indians. The Queen's soldiers are just as much for the protection of the Indians as for the white man. The Commissioners made an appointment to meet you at a certain time, but on account of bad weather on river and lake, we are late, which we are sorry for, but are glad to meet so many of you here to-day.
"We understand stories have been told you, that if you made a treaty with us you would become servants and slaves; but we wish you to understand that such is not the case, but that you will be just as free after signing a treaty as you are now. The treaty is a free offer; take it or not, just as you please. If you refuse it there is no harm done; we will not be bad friends on that account. One thing Indians must understand, that if they do not make a treaty they must
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obey the laws of the land--that will be just the same whether you make a treaty or not; the laws must be obeyed. The Queen's Government wishes to give the Indians here the same terms as it has given all the Indians all over the country, from the prairies to Lake Superior. Indians in other places, who took treaty years ago, are now better off than they were before. They grow grain and raise cattle like the white people. Their children have learned to read and write.
"Now, I will give you an outline of the terms we offer you. If you agree to take treaty, every one this year gets a present of $12.00. A family of five, man, wife and three children, will thus get $60.00; a family of eight, $96.00; and after this year, and for every year afterwards, $5.00 for each person forever. To such chiefs as you may select, and that the Government approves of, we will give $25.00 each year, and the counsellors $15.00 each. The chiefs also get a silver medal and a flag, such as you see now at our tent, right now as soon as the treaty is signed. Next year, as soon as we know how many chiefs there are, and every three years thereafter, each chief will get a suit of clothes, and every counsellor a suit, only not quite so good as that of the chief. Then, as the white men are coming in and settling in the country, and as the Queen wishes the Indians to have lands of their own, we will give one square mile, or 640 acres, to each family of five; but there will be no compulsion to force Indians to go into a reserve. He who does not wish to go into a band can get 160 acres of land for himself, and the same for each member of his family. These reserves are holdings you can select when you please, subject to the approval of the Government, for you might select lands which interfere with the rights or lands of settlers. The Government must be sure that the land which you select is in the right place. Then, again, as some of you may want to sow grain or potatoes, the Government will give you ploughs or harrows, hoes, etc., to enable you to do
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so, and every spring will furnish you with provisions to enable you to work and put in your crop. Again, if you do not wish to grow grain, but want to raise cattle, the Government will give you bulls and cows, so that you may raise stock. If you do not wish to grow grain or raise cattle, the Government will furnish you with ammunition for your hunt, and with twine to catch fish. The Government will also provide schools to teach your children to read and write, and do other things like white men and their children. Schools will be established where there is a sufficient number of children. The Government will give the chiefs axes and tools to make houses to live in and be comfortable. Indians have been told that if they make a treaty they will not be allowed to hunt and fish as they do now. This is not true. Indians who take treaty will be just as free to hunt and fish all over as they now are.
"In return for this the Government expects that the Indians will not interfere with or molest any miner, traveller or settler. We expect you to be good friends with everyone, and shake hands with all you meet. If any whites molest you in any way, shoot your dogs or horses, or do you any harm, you have only to report the matter to the police, and they will see that justice is done to you. There may be some things we have not mentioned, but these can be mentioned later on. Commissioners Walker and Coté are here for the half-breeds, who later on, if treaty is made with you, will take down the names of half-breeds and their children, and find out if they are entitled to scrip. The reason the Government does this is because the half-breeds have Indian blood in their veins, and have claims on that account. The Government does not make treaty with them, as they live as white men do, so it gives them scrip to settle their claims at once and forever. Half-breeds living like Indians have the chance to take the treaty instead, if they wish to do so. They have their choice, but only after the treaty is signed. If there is no treaty made, scrip cannot be given. After the
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treaty is signed, the Commissioners will take up half-breed claims. The first thing they will do is to give half-breed settlers living on land 160 acres, if there is room to do so; but if several are settled close together, the land will be divided between them as fairly as possible. All, whether settled or not, will be given scrip for land to the value of $240.00, that is, all born up to the date of signing the treaty. They can sell that scrip, that is, all of you can do so. They can take, if they like, instead of this scrip for 240 acres, lands where they like. After they have located their land, and got their title, they can live on it, or sell part, or the whole of it, as they please, but cannot sell the scrip. They must locate their land, and get their title before selling.
"These are the principal points in the offer we have to make to you. The Queen owns the country, but is willing to acknowledge the Indians' claims, and offers them terms as an offset to all of them. We shall be glad to answer any questions, and make clear any points not understood. We shall meet you again to-morrow, after you have considered our offer, say about two o'clock, or later if you wish. We have other Indians to meet at other places, but we do not wish to hurry you. After this meeting you can go to the Hudson's Bay fort, where our provisions are stored, and rations will be issued to you of flour, bacon, tea and tobacco, so that you can have a good meal and a good time. This is a free gift, given with goodwill, and given to you whether you make a treaty or not. It is a present the Queen is glad to make to you. I am now done, and shall be glad to hear what any one has to say."
keenooshayo (The Fish) : "You say we are brothers. I cannot understand how we are so. I live differently from you. I can only understand that Indians will benefit in a very small degree from your offer. You have told us you come in the Queen's name. We surely have also a right to say a little as far as that goes. I do not understand what you say about every third year."
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mr. mckenna : "The third year was only mentioned in connection with clothing."
keenooshayo : "Do you not allow the Indians to make their own conditions, so that they may benefit as much as possible? Why I say this is that we to-day make arrangements that are to last as long as the sun shines and the water runs. Up to the present I have earned my own living and worked in my own way for the Queen. It is good. The Indian loves his way of living and his free life. When I understand you thoroughly I will know better what I shall do. Up to the present I have never seen the time when I could not work for the Queen, and also make my own living. I will consider carefully what you have said."
Moostoos (The Bull) : "Often before now I have said I would carefully consider what you might say. You have called us brothers. Truly I am the younger, you the elder brother. Being the younger, if the younger ask the elder for something, he will grant his request the same as our mother the Queen. I am glad to hear what you have to say. Our country is getting broken up. I see the white man coming in, and I want to be friends. I see what he does, but it is best that we should be friends. I will not speak any more. There are many people here who may wish to speak."
wahpeehayo (White Partridge) : "I stand behind this man's back" (pointing to Keenooshayo). "I want to tell the Commissioners there are two ways, the long and the short. I want to take the way that will last longest."
neesnetasis (The Twin) : "I follow these two brothers, Moostoos and Keenooshayo. When I understand better I shall be able to say more."
mr. laird : "We shall be glad to hear from some of the Sturgeon Lake people."
the captain (an old man) : "I accept your offer. I am old and miserable now. I have not my family with me here, but I accept your offer."
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mr. laird : "You will get the money for all your children under age, and not married, just the same as if they were here."
the captain : "I speak for all those in my part of the country."
mr. laird : "I am sorry the rest of your people are not here. If here next year their claims will not be overlooked."
the captain : "I am old now. It is indirectly through the Queen that we have lived. She has supplied in a manner the sale shops through which we have lived. Others may think I am foolish for speaking as I do now. Let them think as they like. I accept. When I was young I was an able man and made my living independently. But now I am old and feeble and not able to do much."
mr. ross : "I will just answer a few questions that have been put. Keenooshayo has said that he cannot see how it will benefit you to take treaty. As all the rights you now have will not be interfered with, therefore anything you get in addition must be a clear gain. The white man is bound to come in and open up the country, and we come before him to explain the relations that must exist between you, and thus prevent any trouble. You say you have heard what the Commissioners have said, and how you wish to live. We believe that men who have lived without help heretofore can do it better when the country is opened up. Any fur they catch is worth more. That comes about from competition. You will notice that it takes more boats to bring in goods to buy your furs than it did formerly. We think that as the rivers and lakes of this country will be the principal highways, good boatmen, like yourselves, cannot fail to make a good living, and profit from the increase in traffic. We are much pleased that you have some cattle. It will be the duty of the Commissioners to recommend the Government, through the Superintendent-General of Indian Affairs, to give you cattle of a better breed. You say that you consider that you have a right to say something about
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the terms we offer you. We offer you certain terms, but you are not forced to take them. You ask if Indians are not allowed to make a bargain. You must understand there are always two to a bargain. We are glad you understand the treaty is forever. If the Indians do as they are asked we shall certainly keep all our promises. We are glad to know that you have got on without any one's help, but you must know times are hard, and furs scarcer than they used to be. Indians are fond of a free life, and we do not wish to interfere with it. When reserves are offered you there is no intention to make you live on them if you do not want to, but, in years to come, you may change your minds, and want these lands to live on. The half-breeds of Athabasca are being more liberally dealt with than in any other part of Canada. We hope you will discuss our offer and arrive at a decision as soon as possible. Others are now waiting for our arrival, and you, by deciding quickly, will assist us to get to them."
keenooshayo : "Have you all heard? Do you wish to accept? All who wish to accept, stand up!"
wendigo : "I have heard, and accept with a glad heart all I have heard."
keenooshayo : "Are the terms good forever? As long as the sun shines on us? Because there are orphans we must consider, so that there will be nothing to be thrown up to us by our people afterwards. We want a written treaty, one copy to be given to us, so we shall know what we sign for. Are you willing to give means to instruct children as long as the sun shines and water runs, so that our children will grow up ever increasing in knowledge?"
mr. laird : "The Government will choose teachers according to the religion of the band. If the band are pagans the Government will appoint teachers who, if not acceptable, will be replaced by others. About treaties lasting forever, I will just say that some Indians have got to live so like the whites that they have sold their lands and
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divided the money. But this only happens when the Indians ask for it. Treaties last forever, as signed, unless the Indians wish to make a change. I understand you all agree to the terms of the Treaty. Am I right? If so, I will have the Treaty drawn up, and to-morrow we will sign it. Speak, all those who do not agree!"
moostoos : "I agree."
keenooshayo : "My children, all who agree, stand up!"
The Reverend Father Lacombe then addressed the Indians in substance as follows : He reminded them that he was an old friend, and came amongst them seven years ago, and, being now old, he came again to fulfil another duty, and to assist the Commission to make a treaty. "Knowing you as I do, your manners, your customs and language, I have been officially attached to the Commission as adviser. To-day is a great day for you, a day of long remembrance, and your children hereafter will learn from your lips the events of to-day. I consented to come here because I thought it was a good thing for you to take the Treaty. Were it not in your interest I would not take part in it. I have been long familiar with the Government's methods of making treaties with the Saulteaux of Manitoba, the Crees of Saskatchewan, and the Blackfeet, Bloods and Piegans of the Plains, and advised these tribes to accept the offers of the Government. Therefore, to-day, I urge you to accept the words of the Big Chief who comes here in the name of the Queen. I have known him for many years, and, I can assure you, he is just and sincere in all his statements, besides being vested with authority to deal with you. Your forest and river life will not be changed by the Treaty, and you will have your annuities, as well, year by year, as long as the sun shines and the earth remains. Therefore I finish my speaking by saying, Accept!"
The chiefs and counsellors stood up, and requested all the Indians to do so also as a mark of acceptance of the Government's conditions. Father Lacombe was thanked by
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several for having come so far, though so very old, to visit them and speak to them, after which the meeting adjourned until the following day.
At three p.m. on Wednesday, the 21st, the discussion was resumed by Mr. Laird, who, after a few preliminary remarks, read the Treaty, which had been drafted by the Commissioners the previous evening. Chief Keenooshayo arose and made a speech, followed by Moostoos, both assenting to the terms, when suddenly, and to the surprise of all, the chief, who had again begun to address the Indians, perceiving gestures of dissent from his people, suddenly stopped and sat down. This looked critical; but, after a somewhat lengthy discussion, everything was smoothed over, and the chief and head men entered the tent and signed the Treaty after the Commissioners, thus confirming, for this portion of the country, the great Treaty which is intended to cover the whole northern region up to the sixtieth parallel of north latitude. The satisfactory turn of the Lesser Slave Lake Treaty, it was felt, would have a good effect elsewhere, and that, upon hearing of it at the various treaty points to the west and north, the Indians would be more inclined to expedite matters, and to close with the Commissioner's proposals.*
*The foregoing report of the Treaty discussions is necessarily much abridged, being simply a transcript of brief notes taken at the time. The utterances particularly of Keenooshayo, but also of his brother, were not mere harangues addressed to the "groundlings," but were grave statements marked by self-restraint, good sense and courtesy, such as would have done no discredit to a well-bred white man. They furthered affairs greatly, and in two days the Treaty was discussed and signed, in singular contrast with treaty-making on the plains in former years. [Emphasis added]
[29] The Edmonton Bulletin report of the events of June 21st provides some further detail, albeit disrespectful to the Aboriginal People concerned, as follows:
The second day opened with a short speech by Commissioner Laird. After thanking the people for being so prompt in coming to decision on the previous day and also for the very orderly and friendly manner in which the people had listened to the terms offered, he would trouble them once more, in order that they may thoroughly understand the bargain. It had been written out and he would read it to them. He started in at this point and read word for word the terms of the treaty. It was a lengthy article, but did not differ very much from the terms offered to other tribes in the south. There was a lot of "Great-Mother" talk and that kind of thing sandwiched in here and there, which is the pure thing for landing the Indians with, as they don't differ from their white brothers in respect to vanity and conceit. However, after they had heard the terms read and were asked if they had anything to say, a hundred and one kicks were registered in as many minutes....
The Partridge has a wife and a cow or two and three horses, he is about 65 years old and he dosen't [sic] believe in work. No person around here ever saw him work, so we take it for granted, that he isn't in love with it. Well he wanted a piece of land somewhere in the neighborhood of a mile square. Another noble red man, who had once, long ago, so he said, visited Edmonton and saw a wagon that he thought was just what he wanted on this farm that the "great mother" was going to have fenced in for him. He wanted to know if his elder brother, as he called Commissioner Laird, was acquainted with that particular brand of wagon. The commissioner pleaded not guilty, but he promised to look into the matter.
An old tart from the east end of the lake called, Puss-i-quam, or "Sound Sleeper," wanted to know if he could not come to some arrangement with the representatives of the great mother to act as the "medicine man" for her children that she, the "great mother" loved so much. He went on to tell what he could do and couldn't do. He painted a beautiful word picture of healthy looking bucks and fascinating young women and if he was appointed, the "great mother" would always feel sure that her representative Mr. Laird, was a man of sound judgment. He gave the commissioners, in their turn a bright smile, and a word of praise, and was in his own way, a smooth article throughout his whole speech. They managed to put him on the shelf after some sparring, but the future will hear from Puss-i-quam or I miss my guess ...
Well, Moos-toos at this stage of the proceedings rose up and went after his people strong. He made a very vigorous speech and in a vary few minutes had them silenced. Commissioner Laird spoke and asked the chief and his councilmen if they were satisfied to come forward and sign. They hesitated a little, but finally came forward and touched the pen. Harrison Young, the secretary, wrote their names. All the clergy in this section were present.... The second day's proceedings were closed by the "Fish" having a silver medal about the size of a tea saucer fastened around his neck and a flag with the "great mother's" picture on it, presented to him. The picture was good and looks at its best now (Edmonton Bulletin, 10 July 1899, 3; Exhibit 3, Documents from Archives, Vol.1, Document 145).
[30] Mair's and the Bulletin's accounts certainly provide an understanding of the actual words spoken by both sides of the negotiations, the circumstances in which they were spoken, and also the tenor of the dialogue which took place.
[31] Mair effectively captures the bargaining tension that existed between the Commissioners and the capable Aboriginal leaders who spoke, the positive and productive nature of the discussions that took place, and the mutual respect that existed on both sides to the negotiation. Most importantly, the account conveys the sincerity of Commissioner Laird's promise that the Aboriginal way of life would continue without interference.
[32] Two photographs are included under Tabs 6 and 11 in Exhibit 7 which is entitled "Treaty 8 and Historical Photographs." The first is "Keenooshayo Addressing the Commission at Lesser Slave Lake", and the second is "FORT VERMILION 1899 Treaty Negotiations" which depicts Commissioner Laird addressing the Beaver and Cree People at Fort Vermilion (Mair, p.64a). These photographs say a great deal about the circumstances of the Treaty 8 negotiations, and are included here:
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[33] The images show the reality that the treaty negotiations were conducted under very imperfect physical circumstances for concluding an important agreement in which every common word and legal phrase must be heard and understood. This point underscores the need to be cautious about concluding with too much certainty that the Aboriginal People perfectly understood everything that the Commissioners said.
[34] While it is true that each party to the negotiations was buying and selling concessions, it is clear to me that the physical circumstances and the complexity of the legal issues concerned placed the greatest responsibility on the shoulders of the Commissioners to make sure that there could be no misunderstanding about what was being offered by them to the Aboriginal People being addressed. This issue will be more fully addressed in Sections IV and V below.
[35] From the evidence of the Treaty Report, I find it is reasonable to infer that there was concern amongst Aboriginal People in the Treaty 8 region about the payment of "tax", whatever that term can be interpreted to mean in the context of the time.
D. The experts
[36] While the basic facts of the Treaty negotiation are agreed, the interpretation to be applied to the evidence of the context in which it was conducted is highly contested. The contextual evidence is composed primarily of the archival records mentioned, and evidence of Aboriginal oral tradition from witnesses called and transcripts filed by the Plaintiffs. To bolster each of their individual cases, the Plaintiffs, Canada, and Alberta have tendered expert opinion to assist in the interpretation of the record. Given the complexity of the large and intricate evidentiary record, I find that its interpretation is best accomplished by evaluating this expert opinion.
The experts who have offered opinions and who testified at trial are as follows:
1. For the Plaintiffs
Dr. Robert Irwin
[37] Dr. Irwin, a historian, tendered a report (Exhibit 11) entitled "Historical Report on Treaty 8 and Taxation" ("Irwin A") and a rebuttal report (Exhibit 12) entitled "Treaty No. 8 and Taxation: A Response to Gerhard Ens"("Irwin B"). Dr. Irwin received his Ph.D. in History from the University of Alberta in 1995 for his thesis "The Emergence of Regional Identity in the Peace River Country, 1900-1945", and has taught in the history departments of the University of Alberta, Red Deer College, and Augustana University College. At the time of testifying, Dr. Irwin had just left a position as Assistant Professor of History and Northern Studies, and Assistant Director of the Northern Studies Program at the University of Alaska Fairbanks, which he had held since 1998. Dr. Irwin was qualified at trial as "an expert in history, specializing in Western Canadian history, in particular Western Canadian history during the period 1870-1945, and specializing in the history of Native/White relations in Canada; capable of giving expert opinion on those subjects."
Dr. Kenneth Norrie
[38] Dr. Norrie, an economist, tendered a report (Exhibit 21) entitled "Taxation in Canada in 1899" ("Norrie"). Dr. Norrie received his Ph.D. from Yale University in 1971, has taught at the University of Alberta in the Department of Economics since 1971, and has been a full professor there since 1980. Dr. Norrie was Chair of the Department of Economics from 1997 to 1999, is currently the Dean of the Faculty of Arts at the University of Alberta, and has taught in numerous areas, including Economics of the Prairie Region, Economics of Federalism, and courses in Canadian Economic Development, Introductory and Advanced. He is the author of numerous publications, including being co-author of the text "A History of the Canadian Economy." At trial, Dr. Norrie was qualified as "an expert in economics specializing in Canadian economic history, in particular Western Canadian economic history between 1867 and 1930, and specializing in federal/provincial fiscal arrangements, capable of giving expert opinion on those subjects."
Dr. Patricia A. McCormack
[39] Dr. Patricia A. McCormack, an anthropologist, tendered expert reports (Exhibits 44 and 118) entitled "Treaty No. 8 and Issues of Taxation" ( "McCormack A") and "Treaty No. 8: Rebuttal Report" (McCormack B) which were co-authored with Mr. Gordon Drever. Dr. McCormack received her Ph.D. from the University of Alberta's Department of Anthropology in 1984 for her thesis "How the (North) West Was Won: Development and Underdevelopment in the Fort Chipewyan Region." From 1984 to 1994, Dr. McCormack was the Curator of Ethnology at the Provincial Museum of Alberta. From 1994 to 1998 she was an Assistant Professor at the School of Native Studies at the University of Alberta and since 1998 has been an Associate Professor there. Dr. McCormack has taught numerous courses in the Department of Anthropology and the School of Native Studies, and has published extensively, most especially in relation to Fort Chipewyan. Dr. McCormack was qualified at trial as "an anthropologist with a specialty in the ethno-history of aboriginal people of North America, and in particular the people of the subarctic, Canadian North and Northwestern plains, capable of giving expert testimony on those subjects."
Ms. Wendy Aasen
[40] Ms. Aasen, an anthropologist, tendered a report (Exhibit 50) entitled "Report on the Indian Understanding of the Negotiation of Treaty 8" ("Aasen") which was co-authored with Dr. Michael Asch. At the time of testimony, Ms. Aasen was a doctoral candidate at the University of Alberta and held a position with the First Nations Studies Program at the University of Northern British Columbia; a tenure-track position as Assistant Professor is to follow her completion of her Ph.D. thesis. Ms. Aasen has taught as a sessional instructor at the University of Alberta and has undertaken numerous community-based and applied research projects, including positions as Researcher and Consultant for the Treaty 8 Tribal Association. Ms. Aasen was qualified at trial as a "socio-cultural anthropologist specializing in the culture of Aboriginal People of the western subarctic."
2. For Canada
Dr. Alain Beaulieu
[41] Dr. Beaulieu , a historian, tendered a report (Exhibit 67) entitled "Indians and Taxation" ("Beaulieu"). Dr. Beaulieu received his Doctorate in History from the Université Laval in 1993. He was a sessional instructor, largely at the Université Laval, until 1999 when he became a Professor in the Department of History at the Université du Québec à Montréal. Dr. Beaulieu was qualified at trial as "an expert in eastern Canadian Aboriginal history with a specialty in the history of Canadian Aboriginal taxation."
Dr. S. Pausak
[42] Dr. Pausak, a forensic scientist, tendered a report (Exhibit 76) entitled "Federal Court Action No. T-2299-92 [sic]." Dr. Pausak received his Ph.D., focussing on NMR Spectroscopy, from the Massachusetts Institute of Technology in 1973 and since then has worked in the field of forensic science. He has numerous publications and papers to his credit and has testified in Court on approximately 200 occasions. Dr. Pausak was qualified at trial as "a forensic scientist qualified to give expert evidence on the physical audio taping process in general and qualified to give evidence on the forensic audio analysis he conducted on the cassette tapes and compact discs produced by the Plaintiffs in this action [re: the TARR transcripts], and the results thereof."
3. For Alberta
Dr. Gerhard J. Ens
[43] Dr. Ens, a historian, tendered a report (Exhibit 10) entitled "Research Report in the Case of Benoit et al. v. Canada" ("Ens"). Dr. Ens received his Ph.D. in History from the University of Alberta in 1989. Since that time he has been both an Assistant and Associate Professor at Brandon University and, since 1997, has been an Associate Professor at the University of Alberta. He has taught a variety of courses on subject matters such as the history of the Canadian west and "The Native Aspect of Canada's History." Dr. Ens has also published extensively in these areas. Dr. Ens was qualified at trial as "an expert in history specializing in Western Canadian History, including Native History, Indian Policy and Treaties."
Dr. Thomas Flanagan
[44] Dr. Thomas Flanagan, a political scientist, tendered a report (Exhibit 80) entitled "Research Report in the Case of Benoit et al. v. The Queen" ("Flanagan"). Dr. Flanagan received his Ph.D. in Political Science in 1970 from Duke University. He has been at the Department of Political Science, University of Calgary since 1968, was made full Professor in 1979, and has also been Department Head, and Academic Advisor to the President. In 1991-92 Dr. Flanagan was Director of Policy, Strategy, and Communications, then Director of Research, for the Reform Party of Canada. He has published quite extensively and was qualified at trial as "an expert on the political history of Canada, particularly Western Canada, the negotiation of the numbered treaties including Treaty 8 and the distribution of land and scrip to the Metis."
Dr. Alexander von Gernet
[45] Dr. von Gernet, an anthropologist, tendered a report (Exhibit 103) entitled "Oral Traditions, Treaty 8 and Taxation." ("von Gernet") In 1989, Dr. von Gernet received his Ph.D. in Anthropology from McGill University, where he specialized in ethnohistory and archaeology of Aboriginal Peoples in North America. Since that time, he has been at the Department of Anthropology, University of Toronto, Mississauga. He is currently an adjunct professor there. Dr. von Gernet has consulted for the Government of Canada on numerous occasions and has previously testified in trials as an expert witness. Dr. von Gernet was qualified at trial as "an anthropologist and ethnohistorian specializing in the use of archaeological evidence, written documentation and oral traditions to reconstruct the past cultures of Aboriginal Peoples, as well as the history of contact between Aboriginal Peoples and European newcomers throughout Canada."
D. The expert opinion
1. General context
[46] The Treaty 8 area was, at the time of the negotiations, occupied mostly by Aboriginal Peoples. Among these were the Dene, Cree, as well as numerous Métis settlers. Many different languages were used in the area, including Cree and the four languages spoken by the Dene: Beaver, Slavey, Chipewyan/Yellowknife, and Dogrib.
[47] The lifestyles of Aboriginal People in the Treaty 8 area differed in some ways from other Aboriginal Peoples in the west. Hunting, fishing, and trapping were still the predominant focus for Aboriginal People in this area, and destitution, although it had occurred, was not the problem that it was in other parts of the west, for example in the Treaty 6 territory to the south.
[48] Additionally, Aboriginal People did not live in large communal groupings but rather in "small settlements in the bush, used especially for winter residence ... Local bands were essentially extended families" (McCormack B, 9). The tribal leaders were people:
who led by example, based on ... abilities, personal qualities, wisdom, and perceived spiritual knowledge. They led because people respected them and chose to follow them, not because they had any coercive ability. They coordinated the overall activities of the local band, but with respect for the autonomy of the person (McCormack B, 9).
[49] It is important to note the lack of distinction between Indian and Métis in the Peace-Athabasca area (McCormack B, 3-4); they often lived together in Aboriginal communities (McCormack B, 9).
[50] The government of Canada had considered negotiating with the Aboriginal People of Treaty 8 as early as 1880, but it was only with the increased presence of non-aboriginal people in the area that the government authorized treaty commissioners to negotiate a treaty. This was done by Order-in-Council on 27 June 1898.
[51] The next summer, the Treaty Commission, led by J.A.J. McKenna, J.H. Ross, and David Laird, was sent into the Treaty 8 area to negotiate with Aboriginal groups. Additionally, a scrip commission accompanied the Treaty Commission. Scrip was offered to self-identified Métis after treaty had been made and came in the form of a certificate which entitled the bearer to a certain value of land. This certificate could either be sold for cash or turned into an amount of land based on the value of the scrip. The choice was that of the individual Métis.
[52] As recounted in Mair, the first negotiations with the Aboriginal People of Treaty 8 occurred at Lesser Slave Lake. Negotiations commenced there on 20 June 1899. That evening, after initial negotiations, the Treaty Commissioners drew up the Treaty which was signed by the Cree the next day, on 21 June 1899. The events at Lesser Slave Lake are generally the focus of the documentary evidence about the negotiations throughout the Treaty 8 area.
[53] When the time came to accept treaty, "70% (608) of the people Mair saw gathered at Lesser Slave Lake chose to present themselves as Métis and take scrip while about 30% (246) adhered to Treaty 8" (Flanagan, 32).
[54] The text of Treaty 8 was basically set after the negotiations at Lesser Slave Lake. After this point, the Commissioners split up and took adhesions to the Treaty throughout the Peace-Athabasca area. These adhesions were not completed during the summer of 1899, and so a further commission was sent out, led by Commissioner Macrae, to obtain adhesions the following summer. In subsequent years, further adhesions were taken.
[55] While the most extensive negotiations occurred at Lesser Slave Lake, at least one expert, Dr. McCormack, does not believe that Treaty 8 should only be interpreted with regard to the negotiations at Lesser Slave Lake. She notes that:
if the agreement made at Lesser Slave Lake provided the basic template for the entire Treaty 8 region, treaty negotiations at each additional locality would have had to have been done in an exceptionally consistent manner. We contend that such not only did not occur, it was probably not possible"(McCormack B, 31).
For example, there would have been different advisors and interpreters at each location (McCormack B, 32-35), and the negotiations occurred over a two-year period, with a different Commissioner (Commissioner Macrae) obtaining the 1900 adhesions (McCormack B, 38-41).
[56] Following the submission of the Treaty Report on 22 September 1899, Treaty 8 was formally ratified by the Privy Council on 20 February 1900.
2. Specific contested context from the documentary record
[57] The only historical documentary evidence to specifically mention "tax" in relation to Treaty 8 is the Treaty Report. The central controversy in the present case surrounds the following ambiguous words:
We assured them that the treaty would not lead to any forced interference with their mode of life, that it did not open the way to the imposition of any tax.
[58] Unfortunately, other written accounts of the negotiations, even the most detailed accounts at Lesser Slave Lake, do not provide further information regarding the Commissioners' assurance. For example, at Lesser Slave Lake on 20 June 1899, the Treaty Commissioners and Aboriginal People discussed the terms of the Treaty. According to reports made at the time, on the next day, 21 June 1899, the Treaty Commissioners read aloud the written text of the Treaty and there was general dissatisfaction expressed by many of the Aboriginal People present. According to the Edmonton Bulletin, "after they had heard the terms read and were asked if they had anything to say, a hundred and one kicks were registered in as many minutes" (Edmonton Bulletin, 10 July 1899). Charles Mair described the situation as "critical" (Mair, 64). However, little detail was then reported by either Mr. Mair or the Edmonton Bulletin on the subsequent negotiations and so, on the written record, we know very little of what exactly was said.
[59] Therefore, to give meaning to the words in the Treaty Report, knowledge of the contextual background is key. It is necessary to know who the Treaty Commissioners were, as well as their goals and instructions. It is also important to understand who the Aboriginal People were and their objectives and concerns. A major task in the present case is to determine the common intentions of the parties to the Treaty. The contextual evidence with respect to the knowledge and conduct of both sides to the negotiations is important to reaching this determination. Against this background it is possible to draw conclusions about how Aboriginal People would have gained information about taxation, what that information would have been, what their concerns about it would be, and what the Commissioners intended by their response.
a. who were the Treaty Commissioners and what were their instructions and intentions?
[60] Three Treaty Commissioners were heavily involved in the process of negotiating Treaty 8 in 1899.
[61] Mr. J.A.J. McKenna was a clerk in the Department of Indian Affairs in 1887, and in 1897, Mr. Sifton selected him as his private secretary for Indian Affairs. Mr. McKenna was promoted to first class clerk in December, 1898 (Exhibit 1:"Historical Who's Who"), and was appointed to the Treaty Commission by Order-in-Council of the Privy Council on 27 June 1898.
[62] Mr. J.H. Ross was appointed Commissioner on 2 March 1899. Mr. Ross
was an elected member of the Legislative Council and later the legislative Assembly of the North West Territories from 1884-1900. He held a variety of positions, including speaker of the Assembly, member of the Executive Committee and member of the Executive Council. A Treaty Commissioner, he was Minister of Public Works in the Territorial Government at the time of Treaty Eight, a position he had held since 1897 (Historical Who's Who).
[63] Mr. David Laird was appointed a Commissioner on the same day as Mr. Ross. Mr. Laird was a very experienced politician and, for Dr. Flanagan at least, his appointment "emphasized continuity with the earlier Numbered Treaties" (Flanagan, 22). He was:
[a] member of the Executive Council of Prince Edward Island, ... [and] was selected as one of the delegates to Ottawa to arrange for the entry of Prince Edward Island into Confederation.
He was later elected to the House of Commons and became Minister of the Interior. He was Minister of the Interior and thus responsible for Indian affairs from 1874-1876. As the Minister of the Interior, he introduced the Indian Act of 1876 in Parliament and shepherded it through the parliamentary process. Three years later he was made Lieutenant Governor of the North West Territories. He held the position of Lieutenant Governor until 2 December 1881. During his tenure as Lieutenant Governor, Laird held the position of Indian Superintendent from 15 December 1876 to 12 February 1879.
Mr. Laird lived in P.E.I. from 1882-1898 where he ran a newspaper. He tried to re-enter federal politics in 1887.
As Minister of the Interior, David Laird assisted Lieutenant Governor Alexander Morris in the negotiation of Treaty 4 (the Qu'appelle Treaty) in 1874. David Laird was Minister of the Interior during the approval of Treaty 6 (the Treaty of Fort Carlton and Fort Pitt) in 1876. Mr. Laird was the chief commissioner who negotiated Treaty 7 at Blackfoot Crossing in 1877.
At the time of Treaty Eight. David Laird was Indian Commissioner for Manitoba and the Northwest Territories...[and was] Treaty Commissioner at Lesser Slave Lake, Peace River Crossing, Fort Vermilion and Fond du Lac. (Historical Who's Who)
[64] Regarding Mr. Laird's involvement with the Indian Act in 1876, Dr. Flanagan reports that "[t]he House of Commons Debates show that Laird was fully informed about all aspects of the bill, able to defend it against criticism and yet willing to accept worthwhile suggestions as amendments." He was also responsible for "bringing forward the order in council that entrenched the outside promises in Treaties 1 and 2" (Flanagan, 8).
[65] Obviously, each Commissioner was experienced in government. In fact, as will be seen, the knowledge of the Commissioners was regarded by the experts as a significant factor in determining what was said during the treaty negotiations. In particular, Commissioner Laird's particular background and experience in Aboriginal affairs had an impact on surmising what took place.
[66] The Commissioners negotiated Treaty 8 in light of the goals and intentions of the Crown. With respect to these, Dr. Irwin states that the Crown desired to enter into treaty when conflict increased between non-aboriginal resource developers and Aboriginal People. For Dr. Irwin, the main purposes in entering into Treaty 8 were to extinguish Aboriginal title and to open the area for settlement (Irwin A, 16). In relation to this, the Crown wished to ensure the peaceful extension of its authority into the Treaty 8 area and to prevent conflicts between Aboriginal People and non-aboriginal settlers (Irwin A, 9), who were increasingly entering the Peace-Athabasca district (Flanagan, 10-14).
[67] Generally, there was little government presence in the Treaty 8 area prior to 1899 (Irwin A, 44-45). The contacts that did exist occurred between Aboriginal People and geological surveyors or the North West Mounted Police. Reports of conditions in the area came to the Crown from these sources as well as from various Catholic and Anglican missionaries and Hudson's Bay Company representatives.
[68] Dr. Flanagan does differ from the other experts somewhat in that he places greater emphasis on the ways in which Canada exercised sovereignty in the area prior to Treaty. For Dr. Flanagan, "Canada manifested its sovereignty in the Athabasca District in various ways during these years" (Flanagan, 12). He emphasizes the functions of the land surveyors and farmers, as well as the geological surveyors (Flanagan, 12).
[69] Dr. McCormack makes an extensive case against Dr. Flanagan's emphasis on extension of Crown sovereignty in the area (McCormack B, 20-25). As she notes, "[o]n pragmatic grounds, the occasional presence of a few government officials was not enough to establish an effective governmental presence in the vast Treaty 8 region" (McCormack B, 20).
[70] It was on 27 June 1898 that cabinet issued an Order-in-Council authorizing the negotiation of Treaty 8. In part, it was acting on the advice of Mr. Sifton, who stated that:
the time had come when the Indian and Halfbreed population of the tract of territory north of that ceded to the Crown under Treaty No. 6, and partially occupied by whites either as miners or traders, and over which the Government exercised some measure of authority, should be treated with for the relinquishment of their claim to territorial ownership (Flanagan, 21).
[71] Treaty negotiations occurred in light of two secondary objectives: first, the Crown wished to enter into treaty with Aboriginal People while limiting its own costs and, second, it wished to ensure that the terms of the Treaty remained compatible with the Indian Act (Irwin A, 9, 31). For Dr. Irwin, Treaty 8 was negotiated using the Crown's previous experience with other Treaties (Irwin A, 31) but the debates surrounding what would be offered at the Treaty 8 negotiations reflected the Crown's changing perspective regarding the success of its Indian policy as a whole (Irwin A, 33).
[72] Dr. Ens agrees with Dr. Irwin in many respects. Dr. Ens agrees that the Crown wished to extinguish Aboriginal title in order to open the territory for settlement and the development of the region's resource wealth (Ens, 46), and while Dr. Ens places greater emphasis on resource development, this distinction is not particularly crucial.
[73] Within this context, the Treaty Commissioners were given their specific instructions. Prior to treaty, there were a number of discussions surrounding which specific terms would be offered when Treaty 8 was negotiated. Some of this debate was due to the fact that, although the government had little experience with the Aboriginal People of the Peace-Athabasca district, they did recognize that these people could still rely on their traditional practices to survive. Additionally, the social organization of Aboriginal People in Treaty 8 was somewhat different than previous treaty groups, with the Aboriginal People in Treaty 8 living in much smaller familial groups (Flanagan, 23-24). Ultimately, the Crown decided to offer annuities to Aboriginal People and scrip to the Métis. Contrary to other treaty negotiations, here the negotiators had the option of offering reserves or land in severalty.
[74] Regarding the debates over instructions, Dr. Flanagan notes that:
[t]here is no evidence that any discussion of taxation took place. Given the extent of the documentary record, I believe that, if such questions had been raised, the discussions would have been recorded in writing. Because officials in Ottawa did not discuss taxation in preparation for negotiating Treaty 8, I conclude that they intended to continue following the approach that they had consistently taken toward taxation of Indians in the past - that it would not be a matter for inclusion in treaties, but that special privileges might be extended legislatively from time to time (Flanagan, 28).
[75] Overall, Dr. Irwin notes that Mr. Sifton had given instructions to the treaty party prior to their departure which required that the Treaty Commissioners not go outside of the promises made in previous treaties (Irwin A, 27-28). The Treaty Commissioners could not deal with issues which were not reflected in their instructions which were framed within the context of the Federal government's "Indian" policy. However, they were permitted some flexibility in dealing with conditions as they saw them, and the Treaty Commissioners could make concessions when they fit within the bounds of the Indian policy (Irwin A, 42). For Dr. Irwin, the Treaty 8 text resembles previous numbered treaties in that the initial offer made by the Commissioners was supplemented by oral assurances (Irwin A, 46-49).
[76] Dr. Ens views the Treaty Commissioners' latitude more narrowly. To him, the problems with outside promises that had occurred after Treaties 1 and 2 were negotiated meant that the government was unwilling to make outside promises in the negotiations of Treaty 8 (Ens, 3; 26-30). However, Dr. Ens does recognize that additional outside promises had to be made in order to break the impasse in negotiations (Ens, 66-67). All of these additional promises were contained in the Commissioners' Report (Ens, 69-70) and they still do not go beyond the bounds of previous numbered treaties (Ens, 70-71).
[77] Dr. Flanagan is also guided by his understanding of the government's experiences in negotiating previous treaties. He notes that in earlier treaties there had been problems with outside promises. Dr. Flanagan quotes the statement of Alexander Morris, chief commissioner for Treaties 3, 4, 5 and 6 and author of The Treaties of Canada with the Indians of Manitoba and the North-West Territories that:
the greatest care was thereafter taken to have all promises fully set out in the treaties, and to have the treaties thoroughly and fully explained to the Indians, and understood by them to contain the whole agreement between them and the Crown (Flanagan, 6).
[78] In any event, since the information available to the government was limited, some discretion was given to the Treaty Commissioners. This was acknowledged by the Order- in-Council authorizing the treaty:
The Minister further states that the Department of Indian Affairs, however, possesses so limited a knowledge of conditions of the country, and of the nature and extent of the claims likely to be put forward by its Indian inhabitants, that he, the Minister considers that the Commissioners should be given discretionary power ... (Flanagan, 22).
b. who were the Aboriginal People and what were their concerns?
[79] The text of Treaty 8 was initially negotiated in Lesser Slave Lake, with adhesions later negotiated throughout the Treaty 8 area in 1899 and 1900. Because most of the information available comes from reports at Lesser Slave Lake, and because these initial negotiations established the parameters of the Treaty, it is important to focus on this location and the people involved.
[80] Upon meeting the Aboriginal People of the Treaty 8 area, Charles Mair described them as "men who led inoffensive and honest lives, yet who expressed their sense of freedom and self-support in their speech, and had in their courteous demeanour the unmistakable air and bearing of independence" (Mair, 55).
[81] As can be seen in the passage quoted from Mair above, the Cree at Lesser Slave Lake had very strong leaders in Keenooshayo and his brother Moostoos, who was considered the leading orator among the Lesser Slave Lake Cree (Historical Who's Who). These men, along with the Treaty Commissioners and other Aboriginal People at Lesser Slave Lake, shaped the text of Treaty 8.
[82] Among the experts, there is general agreement about what the Crown's goals and intentions were in negotiating Treaty 8, but there are significant divergences of opinion with respect to the goals and intentions of Aboriginal People. Generally, the distinction can be drawn between "autonomy" and "cultural and economic survival."
[83] Dr. Irwin argues that the main goal of Aboriginal People in negotiating Treaty 8 was to protect their liberty and autonomy (Irwin A, 3). They were not concerned so much about specific promises (annuities, and hunting and fishing supplies, for example), but rather with the "relationship which would exist between themselves and the government" (Irwin A, 17).
[84] To come to this understanding, Dr. Irwin relies on a number of contextual factors. First, Aboriginal People in the area were not destitute at the time of the treaty making process (in contrast to those in the Treaty 6 area). This meant that they were not negotiating from a position of economic weakness (Irwin A, 17); both Dr. Ens and Dr. McCormack agree with Dr. Irwin on this point (Ens, 47 and McCormack A, 54-55).
[85] Second, Dr. Irwin argues that, prior to treaty negotiations, Aboriginal People were concerned about outsiders invading their territory (Irwin A, 19). They repeatedly made complaints about the police presence in the area and Dr. Irwin concludes that this was "related to a belief that the government intended to extend its policies and sovereignty into the district" (Irwin B, 6).
[86] Third, Aboriginal People had taken some time to consider treaty issues before the Treaty Commissioners arrived with their specific terms (Irwin B, 36). To Dr. Irwin, the concerns they expressed at that time were more related to the nature of their relationship with the government rather than to specific treaty terms (Irwin B, 37-38).
[87] During the treaty negotiations themselves, Dr. Irwin concludes that it was the nature of the relationship that was being discussed as Aboriginal People were most concerned about retaining the ability to move around and having the freedom to make a living (Irwin B, 39-40).
[88] In this context, Dr. Irwin concludes that Aboriginal People's perspectives on the Treaty and the Crown's objectives were not compatible (Irwin A, 26), and further: "historians have concluded that the Indian policy clearly limited the autonomy, rights, and privileges of an Indian person and established a guardian-ward relationship. This relationship was precisely the type of relationship the Indian People's negotiators tried to avoid" (Irwin A, 17).
[89] Aboriginal People also wanted to ensure that their hunting and fishing rights were not curtailed (Irwin A, 21) but this, to Dr. Irwin, was just one issue in relation to larger concerns regarding government authority in the area: "[r]ather than protecting their ‘traditional mode of life,' the Indian People sought assurances and promises from the Commissioners that they could preserve some of their freedom, independence, and ability to support themselves" (Irwin B, 38).
[90] Dr. Ens takes a different perspective. For him, Aboriginal People were not concerned with protecting their autonomy so much as they were concerned with cultural and economic survival. The guiding force in Aboriginal People's politics was the search for security; this is why the treaties of peace and friendship were important (Ens, 23). In these treaties, emphasis was placed on hunting and fishing rights because they were part of traditional practices (Ens, 2).
[91] The contextual information on which Dr. Ens relies is somewhat different from that of Dr. Irwin. In large measure, he relies on generalizations about Aboriginal People throughout the various treaty making areas (Ens, 19-25).
[92] For Dr. Ens, Aboriginal People's complaints about police presence and the Crown's assertion of sovereignty in the area existed largely because of concerns that hunting and fishing regulations would be enforced (Ens, 54-55). There was general alarm at the time over the increased government presence in the area and "natives there recognized that these patrols were more than a casual reconnaissance and had the potential to change northern life by bringing enforcement of game laws and other regulations" (Ens, 55).
[93] Dr. Irwin responds as follows:
[I]t is clear that the Indian People negotiating Treaty Eight at Lesser Slave Lake, Peace River Crossing, and other locations had some knowledge of the implementation of the policy framework. While I acknowledge that Indian People understood that subsequent to the treaty they would become subjects of the Crown and enter into a ward-patron relationship thereby sacrificing an element of sovereignty, I argue they sought to negotiate the parameters of the ward-patron relationship in the treaty making process to their advantage. In that effort they tried to preserve as much of their liberty and autonomy as possible (Irwin B, 35-36).
These differing contextual understandings colour the subsequent analysis of both Dr. Irwin and Dr. Ens.
[94] Whichever perspective is taken, it is clear that, prior to treaty, the government did know that there were objections both to government presence in the Treaty 8 area and to the Treaty itself. Aboriginal People resented the non-aboriginals who were already passing through the area, and Dr. Flanagan submits that these feelings were fuelled by the Métis who were trying to force the government to accede to their demands for scrip (Flanagan, 16). Many rumours circulated regarding what treaty would bring, including the possibility of being confined to reserves and having hunting and fishing rights curtailed. Dr. Flanagan admits that these rumours may have included taxation, although there is nothing about this in the documentary record (Flanagan, 17; examples of rumours can be found on pages 17-19).
[95] Dr. McCormack characterises Aboriginal concerns differently than does Dr. Flanagan. For Dr. McCormack, Aboriginal People were not merely victims of rumours and the Métis but, made informed decisions and had legitimate concerns: "Northern Aboriginal peoples sought information from men they considered to be knowledgeable and rightly understood to be in contact with people on the ‘outside'" (McCormack B, 26). The concerns that Dr. McCormack identifies included fear of Euro-Canadian settlement, reserves, and loss of autonomy (McCormack B, 26-28). As Dr. McCormack notes:
There were discussions inclusive of all Aboriginal peoples, "Indian" and "Métis" alike, meetings were organized to arrive at conclusions representing community sentiment, and the use of communication channels such as letters and newspapers to convey these issues to the political institutions of Canadian society (McCormack B, 20).
For Dr. McCormack, Aboriginal People carefully considered their options and asked questions of outside people, but in the end came to their own decisions (McCormack A, 50-51).
[96] In response to the rumours and concerns, Commissioner Laird addressed a circular letter to People in the Treaty 8 area in an attempt to clear up the confusion about reserves and hunting and fishing rights (Flanagan, 20). Aboriginal opposition certainly factored into the government's willingness to grant the Treaty Commissioners some leeway in negotiating the treaty (Flanagan, 21).
c. negotiation and taxation issues
[97] During the negotiations, difficulties between the two parties to the treaty would have occurred because of language translation. For example, in Cree there is no word for "tax." Fully described in Section IV(b) below, Richard Lightning, who translated transcripts for the TARR project and retranslated them for the Plaintiffs in the present case, testified that "[t]here are several words that cannot be translated. This [tax] is one of them" (Transcript, 16 May 2001, 1215). Dr. McCormack notes that "tax" has been translated into Cree as a "payment made to a governor (or person of high position)" and "taxation" as "payment to a government" (McCormack B, 47).
[98] The Treaty Commissioners were unable to speak Cree or any of the other Aboriginal languages, so the job of explaining the Treaty to Aboriginal People fell to the interpreters: in Lesser Slave Lake, Samuel Cunningham, Albert Tate, and Father Lacombe were involved (McCormack B, 34).
[99] The argument is made rather forcefully by Dr. McCormack that good quality translation was available at Lesser Slave Lake. Samuel Cunningham was experienced in acting as an advisor and intermediary between Aboriginal and European People and was fluent in English, French, and Cree (McCormack A, 48). As "a Métis trader originally from the St. Albert District, Cunningham was a member of the Territorial Legislature in the late 1880's before giving up the seat and becoming a free trader in Northern Alberta" (Historical Who's Who).
[100] Albert Tate was a former Hudson's Bay Company officer of mixed Scottish-Aboriginal ancestry and would have had experience listening and responding to the concerns of Aboriginal People in his former position (McCormack A, 49).
[101] Both Mr. Tate and Mr. Cunningham should have been "well-connected, knowledgeable, and respected Métis" men (McCormack A, 49). More specifically, both "were not only bilingual but were also literate in English and well acquainted with Canadian law, politics, and business practices" (Flanagan, 29).
[102] Commissioner Laird appeared cognizant of the importance of obtaining accurate interpretation when he assured the People at Lesser Slave Lake that "they had Mr. Albert Tate as their interpreter and also Mr. S. Cunningham, who would represent them, (the Indians) so that one can watch the other" (Edmonton Bulletin July 10, 1899:2, as quoted in McCormack A, 49-50). Dr. Flanagan further speculates that "[i]f one had stumbled in oral interpretation, they could have been corrected or assisted by each other or by the numerous bilingual missionaries and traders who were also present" (Flanagan, 29-30).
[103] Dr. McCormack does note, however, that interpretation was not necessarily of equally good quality in the other areas in which Treaty 8 was negotiated (McCormack B, 34).
[104] With respect to the analysis which follows in Sections III and IV, it is important to consider that, while the translation of the words the Commissioners and the Aboriginal speakers spoke might have been good at Lesser Slave Lake, and at least adequate at subsequent adhesions locations, the meaning of the Commissioners' words might not have been completely understood by the Aboriginal People being addressed.
[105] With this background in mind, it is possible to engage in an analysis of exactly what Aboriginal People would have known about tax at the time of treaty negotiations in 1899. If, as the Treaty Report notes, "many were impressed with the notion that the treaty would lead to taxation," it is necessary to know what taxes Aboriginal People could have been aware of and about which they could have questioned the Treaty Commissioners.
[106] Dr. Norrie provided information as to which taxes were in existence in Canada in 1899. He concludes that
[t]axation was still in an early stage of development in Canada at the end of the 19th century ... Provinces and municipalities were becoming more active tax collectors at this time, as citizens turned to them for public sector services. The number and mix of taxes varied, however, as provincial and municipal governments experimented with ways to meet their burgeoning revenue needs (Norrie, 6).
Provincial and municipal taxes only accounted for 2.7% of total taxes paid in 1896 and 5.6% in 1913 (Norrie, 3) but these taxes included licences, succession duties, real property taxes, business taxes, and poll taxes (Norrie, 4-6). Personal income taxes were not generally in place at this time (Norrie, 5), although municipalities in Saskatchewan and Alberta were permitted to rely on them as of 1883 (Norrie, 6).
[107] Dr. Beaulieu, the defendant's expert on Aboriginal taxation, agrees that "[u]ntil the beginning of the 20th century, there was little in the way of tax law in Canada" (Transcript, 11 July 2001, 3184-5).
[108] In the Indian Act, the first tax exemption for Aboriginal People appeared in the 1850 legislation (Transcript, 11 July 2001, 3168). At the time of treaty negotiations, a tax exemption was in place as a result of the 1876 Indian Act. According to Dr. Beaulieu's testimony, "The provisions in the 1876 Indian Act applied to all of Indians in Canada ... tax exemption applied to Indians living on the reserves" (Transcript, 11 July 2001, 3183). Furthermore, the law did not distinguish between status, treaty, and non-status Indians: "The law is meant to apply to all Indians in Canada" (Transcript, 11 July 2001, 3184). However, "one constant conclusion is that there was a link between tax exemptions and reservations" (Transcript, 11 July 2001, 3194).
[109] Considering the taxation regime in Canada at the time, Dr. Beaulieu testified that "at the end of the 19th century, municipal taxation was a main threat to Indian property" (Transcript, 11 July 2001, 3182), although his report did not deal specifically with taxation in the North West Territories.
[110] Dr. Irwin states that "[t]he Indian People of the Peace-Athabasca country would have had little first hand experience with taxation, but the contextual evidence suggests they could have been aware of these issues" (Irwin A, 69). For example, Dr. Flanagan, agreeing with Dr. McCormack, notes that the Edmonton Bulletin circulated widely in northern Alberta and had in it a column about life at Lesser Slave Lake (Flanagan, 32). This newspaper often contained reports of taxation, as well as news about many national and international issues (Flanagan, 32-33).
[111] On this point, a comment can be made. While Aboriginal People widely discussed the coming of the Treaty, there is no evidence that Treaty 8 Aboriginal People in fact read the newspapers in circulation, which would not be surprising, since theirs was a non-English speaking oral society.
[112] Dr. Irwin (Irwin A, 53-54) and Dr. McCormack argue that Aboriginal People could have gained knowledge of taxation issues through the Métis, although Dr. McCormack delves much more extensively into the subject. Dr. McCormack, in her report, traces the history of Métis' experiences with taxation (McCormack A, 10-12) and then goes on to explain how their experiences in places such as Red River would mean that Aboriginal People in the Treaty 8 area would also be aware of these concerns.
[113] Dr. McCormack notes, as discussed earlier, that the distinction between Métis and other Aboriginal People was often irrelevant in the time of treaty (McCormack A, 2-3). Therefore, there was extensive contact, and often little to no distinction made, between the Métis and other Aboriginal People. There was a continuum of Métis locations from Red River through to the Treaty 8 area (McCormack A, 12). Notably, there was also a significant self-identified Métis group in the Lesser Slave Lake area who had moved from St. Albert and were very aware of current Canadian political issues and processes (McCormack B, 10-14). Additionally, the Métis had a dominant role in the transportation industry and information would spread as they travelled (McCormack A, 14-15).
[114] Dr. McCormack also outlines taxes in place in the west and the opposition that existed to these taxes (McCormack A, 16-37). For her, the knowledge of these taxes would have spread to the Treaty 8 area from the Treaty 6 area because of the commercial links that existed between Edmonton and the north (McCormack A, 37-44).
[115] She further notes that Aboriginal People could have become aware of tax, as a concept, through the missionaries' work in the area, and speculated that a source might be the Bible because tax is mentioned a number of times in the New Testament (McCormack B, 47).
[116] Dr. Irwin suggests a number of taxes that Aboriginal People could have been aware of in 1899. Customs and excise duties were applied to the fur trade and would have also applied to products consumed by the missions in northern Alberta (Irwin A, 52). Additionally, land taxes were imposed in certain areas in the North West Territories. Local governments in organized municipal districts implemented some taxes and Local Improvement Districts required a form of corvée or mandatory labour service (this had expanded rapidly in the North West Territories in 1898 and 1899) (Irwin A, 53).
[117] As well, Dr. Irwin addresses the issue of direct taxation. He argues that this had been "a perpetual issue of contention in Territorial politics" (Irwin A, 54). This was because of the debates that occurred regarding the acquisition of provincial status for the North West Territories. The Territories had had the power to tax directly since 1886 but, instead, relied on a subsidy from the Dominion government for revenue. This subsidy would be lost if it obtained provincial status and so "the great bug bear of direct taxation" was often in the news. It was discussed in the 1898 Territorial election, which had a polling station in Athabasca Landing (Irwin A, 54).
[118] Dr. Ens narrows his focus to what Aboriginal People would have known about fishing licences as this was a concern to them (Ens, 3); they would have known about the issues surrounding fishing licences because of their contacts with people in the Treaty 6 area as well as with the Métis people (Ens, 4; 75). According to Dr. Ens:
[w]hile it is true that the collection of fishing licenses had not extended northward into areas covered by Treaty 8, it is almost certain that the Indians of the Peace-Athabasca districts would have been aware of this issue in 1899. Not only were there large numbers of Métis in the region ... but the Indians themselves would have had contact with Treaty 6 Indians on a variety of issues (Ens, 45).
[119] In response to this, Dr. Irwin submits that Dr. Ens has ignored "other related issues which certainly resulted in an awareness of taxation issues in the district" (Irwin B, 44).
[120] Each expert hypothesizes as to what, precisely, would have been discussed and, or, promised about tax during the treaty negotiations. These hypotheses will be examined in detail in Section IV(a) below.
[121] In addition to the contextual evidence of events leading up to negotiations, it is also important to examine Crown and Aboriginal behaviour after the negotiations to shed some light on whether the Treaty Commissioners and Aboriginal People considered that promises had been made concerning tax.
[122] Dr. Irwin notes that the government honoured other oral assurances in the Treaty, for example conscription (Irwin A, 50-52), although this position was weakened somewhat on cross-examination when it was noted that Aboriginal People were still required to serve in the military; they simply weren't deployed overseas. Additionally, Dr. Flanagan makes the point that tax and conscription are not analogous; there are different contextual circumstances surrounding each (Flanagan, 77).
[123] Both Dr. Irwin and Dr. Ens agree that the government of Canada never treated tax exemption as a treaty promise (Irwin A, 57-58; Ens, 4). This is supported by the testimony of Dr. Beaulieu: "The stand it took was to say there was no link between exemptions and any treaty that would have been entered into" (Transcript, 11 July 2001, 3193).
[124] There was also some discussion, especially between Dr. Irwin and Dr. Ens, about how Aboriginal People reacted when taxes were later applied to them. Dr. Irwin notes the occasional protests that occurred until 1945 (the period of his study), and that the government always responded that tax was an Indian Act, and not a treaty, issue (Irwin A, 5).
[125] For Dr. Irwin, however, the:
lack of a consistent protest is not surprising. Prior to 1945, the economy of the Treaty Eight district remained primarily that of the fur trade. As a result, the primary economic activity did not lead to taxation. Only the infusion of capital and infrastructure which accompanied World War Two opened the district to a cash economy and taxation in any large scale. This would explain why protests might emerge after 1945 (Irwin A, 58).
[126] On the topic of protests, Dr. Ens argues that it was only fishing licences that Aboriginal People saw as taxation, and that is what they complained about after 1899 (Ens, 39-41; 44-45). As well, under previous treaties, the issue of taxation only came up when fish and game regulations were put in place: Aboriginal People viewed these as a violation of their treaty rights (Ens, 37-38).
[127] The testimony of Dr. Beaulieu also dealt with Aboriginal protests against tax, both before and after the signing of Treaty 8. Petitions were made as early as the 1840s, from Aboriginal People in Upper and Lower Canada, regarding formal exemption from municipal taxes (Transcript, 11 July 2001, 3174). Dr. Beaulieu also commented that later, "[a] certain number of Indians thought that property owned outside of reservations was exempt from taxation" (Transcript, 11 July 2001, 3185).
[128] As to the connection between tax exemption and treaty rights, Dr. Beaulieu testified:
One point that was raised repeatedly by certain Aboriginal communities was that treaties entered into with the Crown exempted Indians from taxation, and some members of the Commons actually allude to exemptions that would have been granted because of treaties. There is no mention of a specific treaty but of treaties that may have been concluded - entered into in Quebec, Ontario, and the rest of Canada.
(Transcript, 11 July 2001, 3193)
And further:
I believe that in certain cases, the requests were not submitted only by western Indians but by - in a more general fashion by other Indians under treaty.
(Transcript, 11 July 2001, 3261).
III. The Tax Assurance as a Treaty Term
[129] As noted above, a fundamental issue in the present case involves how to view the following two references in the Treaty Report, the first being direct evidence of a concern expressed by Aboriginal People, and the second being the response of the Commissioners to this concern:
There was expressed at every point the fear that the making of the treaty would be followed by the curtailment of the hunting and fishing privileges, and many were impressed with the notion that the treaty would lead to taxation and enforced military service.
...
We assured them that the treaty would not lead to any forced interference with their mode of life, that it did not open the way to the imposition of any tax, and that there was no fear of enforced military service.
[130] In reaching a decision on this issue, it is important to acknowledge the established law with respect to treaty interpretation and, in particular, the specific statement in Mitchell as quoted in Section I above that Aboriginal claims must be proved on the basis of cogent evidence establishing their validity on a balance of probabilities. Unlike the situation in Mitchell where direct evidence was found wanting, in the present case there is direct and cogent evidence of an "assurance" being made to Aboriginal People by the Treaty Commissioners.
[131] The Plaintiffs have built their case on the foundation that the Commissioners' response constitutes a single thing: an oral promise of a tax exemption, which, as a treaty promise, is incorporated into the Treaty as an enforceable term. Both Canada and Alberta have challenged this potential interpretation on the basis that there is no proof of a common intention to a tax exemption in the understanding between the Aboriginal People who expressed the concern, and the Commissioners who gave the response, and, thus, the Commissioners' words cannot be interpreted to give the meaning advanced by the Plaintiffs. In fact, Canada and Alberta argue that the common intention was that the tax assurance was not to be considered a term of the Treaty.
[132] In support of the challenge, Alberta relies on the evidence of Dr. Flanagan who goes to some length in his report to critically analyse the contents of the Treaty Report as follows:
The commissioners recorded their specific responses to all these requests. I would classify these responses into four different categories, based upon my assessment of the commissioners' own understanding of what they were saying:
A an explanation of the treaty
B a promise to inform the government
C an explanation of existing policy or law outside the treaty
D a promise to provide benefits not mentioned in the treaty
In the long quotations from the commissioners_ responses below, I have inserted the appropriate letter after each response. In addition, I have highlighted those sentences that I believe to include promises to provide benefits not explicitly mentioned in the text of Treaty 8:
We pointed out that the Government could not undertake to maintain Indians in idleness; that the same means of earning a livelihood would continue after the treaty as existed before it, and that the Indians would be expected to make use of them (C). We told them that the Government was always ready to give relief in cases of actual destitution, and that in seasons of distress they would without any special stipulation in the treaty receive such assistance as it was usual to give in order to prevent starvation among Indians in any part of Canada (C); and we stated that the attention of the Government would be called to the need of some special provision being made for assisting the old and indigent who were unable to work and dependent on charity for the means of sustaining life (B). We promised that supplies of medicines would be put in the charge of persons selected by the Government at different points, and would be distributed free to those of the Indians who might require them (D). We explained that it would be practically impossible for the Government to arrange for regular medical attendance upon Indians so widely scattered over such an extensive territory (C). We assured them, however, that the Government would always be ready to avail itself of any opportunity of affording medical service just as it provided that the physician attached to the Commission should give free attendance to all Indians whom he might find in need of treatment as he passed through the country (C).
Our chief difficulty was the apprehension that the hunting and fishing privileges were to be curtailed. The provision in the treaty under which ammunition and twine is to be furnished went far in the direction of quieting the fears of the Indians, for they admitted that it would be unreasonable to furnish the means of hunting and fishing if laws were to be enacted which would make hunting and fishing so restricted as to render it impossible to make a livelihood by such pursuits (A). But over and above the provision, we had to solemnly assure them that only such laws as to hunting and fishing as were in the interest of the Indians and were found necessary in order to protect the fish and fur- bearing animals would be made, and that they would be as free to hunt and fish after the treaty as they would be if they never entered into it (D).
We assured them that the treaty would not lead to any forced interference with their mode of life, that it did not open the way to the imposition of any tax, and there was no fear of enforced military service (A, C). We showed them that, whether treaty was made or not, they were subject to the law, bound to obey it, and liable to punishment for any infringements of it. We pointed out that the law was designed for the protection of all, and must be respected by all the inhabitants of the country, irrespective of colour or origin; and that, in requiring them to live at peace with white men who came into the country, and not to molest them in person or in property, it only required them to do what white men were required to do as to the Indians (C).
As to education, the Indians were assured that there was no need of any special stipulation, as it was the policy of the Government to provide in every part of the country, as far as circumstances would permit, for the education of Indian children, and that the law, which was as strong as a treaty, provided for non-interference with the religion of the Indians in schools maintained or assisted by the Government (C).
We should add that the chief of the Chipewyans of Fort Chipewyan asked that the Government should undertake to have a railway built into the country, as the cost of goods which the Indians require would be thereby cheapened and the prosperity of the country enhanced. He was told that the Commissioners had no authority to make any statement in the matter further than to say that his desire would be made known to the Government (B).
Indeed, the Indians were generally averse to being placed on reserves. It would have been impossible to have made a treaty if we had not assured them that there was no intention of confining them to reserves. We had to very clearly explain to them that the provision for reserves and allotments of land were [sic] made for their protection, and to secure to them in perpetuity a fair portion of the land ceded, in the event of settlement advancing (A) [emphasis is Dr. Flanagan_s]
By my reading, the commissioners reported having made two promises of benefits not specified in the treaty: (1) that the government would set up supplies of medicine for free distribution to the Indians, and (2) that "only such laws as to hunting and fishing as were in the interest of the Indians and were found necessary in order to protect the fish and fur-bearing animals would be made, and that they would be as free to hunt and fish after the treaty as they would be if they never entered into it."
The detailed and nuanced character of the commissioners' report of requests and responses is striking. Because the list is so extensive and carefully constructed, it seems valid to take note also of what it did not include, on the assumption that the commissioners made an honest effort to include all the demands that came up in the negotiations. It is, therefore, significant that the commissioners did not say that the Indians would never be subject to any form of taxation. They would have been aware that such a promise would have gone outside the instructions they had received from the minister: "The terms of the treaty are left to your discretion with this stipulation that obligations to be assumed under it shall not be in excess of those assumed in the treaties covering the North West Territories." Saying that the treaty "did not open the way to the imposition of any tax" seems, in this context, to be an explanation of existing government policy as embodied in the Indian Act. That is, the treaty by itself did not impose any taxes upon the Indians, but neither did it foreclose Parliament from legislating in this area, as it already had by conferring a tax exemption upon Indians living on reserves (Flanagan, 33-37).
[133] Dr. Flanagan's opinion quoted above is a mixture of legal argument about the meaning to be attributed to the Commissioners' words, and expert opinion about the context in which they were spoken. The "expert" legal argument issue requires analysis.
[134] The Supreme Court of Canada has accepted expert opinion evidence from historians and anthropologists in numerous Aboriginal claims cases, for example: R. v. Coté [1996] 3 S.C.R. 139; R. v. Van der Peet [1996] 2 S.C.R. 507; and R. v. Badger [1996] 1 S.C.R. 771. However, Justice Binnie at paragraphs 36 and 37 in Marshall recognizes the difficulties involved in this enterprise, both from the expert's and the judge's perspective:
The courts have attracted a certain amount of criticism from professional historians for what these historians see as an occasional tendency on the part of judges to assemble a "cut and paste" version of history ...
[T]he basic objection, as I understand it, is that the judicial selection of facts and quotations is not always up to the standard demanded of the professional historian, which is said to be more nuanced. Experts, it is argued, are trained to read the various historical records together with the benefit of a protracted study of the period, and an appreciation of the frailties of the various sources. The law sees a finality of interpretation of historical events where finality, according to the professional historian, is not possible. The reality, of course, is that the courts are handed disputes that require for their resolution the finding of certain historical facts. The litigating parties cannot await the possibility of a stable academic consensus. The judicial process must do the best it can.
[135] In the present case, by consent, a great deal of latitude has been provided for the inclusion of expert opinion on the meaning to be derived from the historical record to give a basis for understanding the context in which the claimed tax exemption promise was made. Indeed, the claimed promise itself has also been the subject of comment. However, within this flexible approach there are, nevertheless, some legal restraints that must be recognized.
[136] In R. v. Mohan [1994] 2 S.C.R. 9, Sopinka, J. at page 20 outlined four criteria necessary for the admissibility of expert evidence: relevance; necessity in assisting the trier of fact; the absence of any exclusionary rule; and a properly qualified expert. In addition, at pages 24 and 25, he expressed a caution with respect to the application of the criteria:
There is also a concern inherent in the application of this criterion that experts not be permitted to usurp the functions of the trier of fact. Too liberal an approach could result in a trial's becoming nothing more than a contest of experts with the trier of fact acting as referee in deciding which expert to accept.
These concerns were the basis of the rule which excluded expert evidence in respect of the ultimate issue. Although the rule is no longer of general application, the concerns underlying it remain. In light of these concerns, the criteria of relevance and necessity are applied strictly, on occasion, to exclude expert evidence as to an ultimate issue. Expert evidence as to credibility or oath-helping has been excluded on that basis.
[137] In addition, Justice Rothstein in Fairford First Nation v. Canada [1998] F.C.J. No. 47 (F.C.A.) at paragraph 9 notes a specific restriction on the giving of expert evidence:
Another example is [the expert's] view that Canada's approval and financing of the water control structure without due regard for Indian interests is inconsistent with Canada's statutory and treaty obligations to the Fairford First Nation. The interpretation of statutes and treaties is a question of law for the Court and not expert witnesses.
[138] This finding is consistent with Chief Justice McLachlin's general principles of treaty interpretation statement in Marshall as quoted in Section I above. In interpreting a treaty, first consideration is to be given to the facial meaning of the words, and then second, consideration is given to the facial meaning against the treaty's historical and cultural backdrop. Thus, within this framework, it is unnecessary to have expert evidence about the facial meaning, but it is crucial to have expert evidence about history and culture.
[139] On the basis of the authority cited, I find that Dr. Flanagan's legal opinion is something within my exclusive function, and, accordingly, give it no weight as an expert opinion.
[140] Nevertheless, Dr. Flanagan's analysis of the various statements made by the Commissioners as documented in the Report does convey the essence of an argument against the interpretation advanced by the Plaintiffs and, as such, is a convenient discussion piece.
[141] In my opinion, it is important to distinguish between concluding whether a treaty promise was made, and the meaning to be given to the promise if it is found to be made. A major point that emerges through the expert evidence is that, in negotiating Treaty 8, the Commissioners were not authorized to exceed the terms of previously negotiated treaties, partly because of a concern about cost.
[142] In my opinion, this focus diverts attention from a critical analysis as to whether the words spoken properly constitute a treaty promise, regardless of the meaning attached. That is, a conclusion is required as to whether the Commissioners truly wanted the Aboriginal People to understand that they meant what they said in all respects and would stand by their word.
[143] While the objective at hand is to determine whether the Commissioners' words constitute a treaty promise before embarking on the final interpretation of the Treaty itself, I find that the admonitions of the Supreme Court of Canada, as quoted in Section I above, are important to keep in mind; a sensitive and contextually practical approach should be adopted. Also, with respect to analysing the meaning of words spoken so as to conclude whether they constitute a term of the Treaty, a highly technical grammatical approach, involving putting weight on any difference in meaning between the phrases "we promised", "we assured them", and "we had to solemnly assure them," should be avoided unless there is evidence that such difference was actually understood by the Aboriginal People concerned.
[144] Dr. Irwin submits that Aboriginal People were not discouraged from believing that the discussions were also part of the Treaty promises (Irwin B, 42). Dr. McCormack supports this position. She notes that even the missionaries were not clear about what constituted a term of the Treaty and she does not accept that the Treaty Commissioners "carefully distinguished between what was formally a treaty clause and other assurances" (McCormack B, 30). To Dr. McCormack, all promises and assurances made in the context of the treaty discussions "would have been understood by the Aboriginal signatories to be part of the Treaty itself" (McCormack B, 42).
[145] In this part of the analysis, it is important keep in mind that, as Chief Justice Lamer said in Badger at paragraph 52 quoted in Section I above:
The treaties, as written documents, recorded an agreement that had already been reached orally and they did not always record the full extent of the oral agreement....
As a result, it is well settled that the words in a treaty must not be interpreted in their strict technical sense nor subjected to rigid modern rules of construction. Rather, they must be interpreted in the sense that they would naturally have been understood by the Indians at the time of the signing.
[146] Apart from the evidence of oral tradition analysed below in Section IV, there is no evidence coming from witnesses to the treaty negotiations, other than those of the Commissioners expressed through the Treaty Report, on which to find the precise concern of the Aboriginal People respecting tax. Indeed, it is possible that various levels of concern were expressed to the Commissioners during their travels to obtain adhesions throughout the Treaty area but, by accepting the words in the Treaty Report at face value, what we do know is that the Commissioners believe they gave a uniform answer.
[147] In order to maintain the Honour of the Crown in interpreting the actions of the Treaty Commissioners, it must be assumed that they had no intention to mislead, and that the words used, as far as the Commissioners were concerned, were honestly meant and intended to be relied upon. I find that, by the successful negotiation of the Treaty, the Aboriginal People understood this to be the case.
[148] Therefore, on the basis of the law, the expert opinion quoted, and Mair's contemporaneous account quoted in Section II above, I find that all statements of commitment made by the Commissioners were intended to be accepted by the Aboriginal People as promises, and the Aboriginal People placed a high degree of trust in the Commissioners in accepting their word. On this basis, I find the tax assurance to be a Treaty promise, and, as such, is a Treaty term; its meaning, however, is analysed in Section IV below.
IV. The Meaning of the Tax Assurance
[149] As found in Section III above, the tax assurance given by the Commissioners is a treaty promise and as such is a Treaty term. The question now to be answered is: what does the term mean?
[150] As stated in Section I above, the cases of Marshall and Sioui establish that, in interpreting the terms of a treaty,"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" Aboriginal interests and those of the Crown. Thus, the meaning of the term must be derived from the proven common intentions established between the parties to the Treaty.
[151] There are two elements to the Plaintiffs' effort to prove the meaning of the tax assurance: the calling of expert evidence with respect to what both the Commissioners and the Aboriginal People might have intended in concluding the Treaty; and the production of evidence of oral tradition to prove that the Commissioners promised a tax exemption.
[152] From Keenooshayoo's address to the Commissioners, as quoted from Mair in Section II above, we know that the Treaty 8 People had a general concern about the coming settler intervention in their territory, but what do we know about the specific concern about tax held by the Aboriginal People throughout the Treaty 8 territory?
[153] Through the production of expert evidence the Plaintiffs' seek to prove the tax concern, and then to say that the Commissioners met the concern by the promise they made. To succeed in this effort, the Plaintiffs must prove the tax concern was clearly understood by the Commissioners, and the Commissioners' intended promise was clearly understood, and accepted, by the Aboriginal People.
[154] Specifically, the Plaintiffs rely on the expert evidence to argue that, in order to protect their freedom and independence, the Aboriginal People in the Treaty 8 area wanted an exemption from the payment of tax as a term of the Treaty, and the Commissioners, in the ambiguous words they used as set out in the Treaty Report, offered it. In turn, Canada, and particularly Alberta, have advanced alternate expert interpretations of the tax concerns held by Aboriginal People, and, accordingly, differing opinions on the meaning of the tax assurance given.
[155] There is proof of common intention leading up to the signing of the Treaty. There is no doubt that both the Commissioners and the Aboriginal People shared the common intention that it was necessary that a treaty be concluded on mutually acceptable terms and conditions. It is also fair to conclude that both the Commissioners and the Aboriginal People wanted to find an accommodation with respect to the tax concern expressed by the Aboriginal side, and, indeed, since the negotiations were successfully completed, both understood that such an accommodation had been found. However, the problem lies in proving the content of the accommodation, not in proving the fact that both sides believed it had been found.
IV(a). The Legal and Expert Opinion
[156] The legal and expert analysis of essentially the same historical record has generated four theories of common intention with respect to the tax assurance term:
A. As argued by the Plaintiffs, the Crown promised, and Aboriginal People understood, that they would be exempt from direct taxation in the future: ("the tax exemption promise theory");
B. As argued by Alberta, the Crown promised, and Aboriginal People understood, that the agreement about tax involved only fishing licences: ("the freedom from licence fee theory)";
C. As also argued by Alberta, a literal reading of the Treaty Report proves that both the Crown and Aboriginal People understood that no tax exemption promise was made: ("the literal interpretation of the Treaty Report theory"); and
D. As argued by Canada, the Crown promised that the Treaty would not open the way to the imposition of any tax, meaning that the Treaty is not a taxing instrument, and Aboriginal People understood this; that is, Aboriginal People knew that they would have to obey the laws of Canada and this would include the payment of any taxes later imposed: ("the Treaty is not a vehicle for the payment of tax theory").
A. The tax exemption promise theory
[157] A summary of the Plaintiffs argument is as follows:
The Crown did not assume responsibility for Indians in the Treaty 8 territory prior to 1899. The Crown believed that it was not obligated to provide any services in the absence of a treaty. Neither the Indian Act nor the administration which accompanied it, were applied to the Treaty 8 territory prior to 1899.
The Crown wanted the Treaty to secure extinguishment of aboriginal title and gain access to the natural resources of the area. The Crown was also concerned about the safe passage of the influx of Klondikers travelling through the region, particularly in 1898.
The Crown did not believe that the lands would be required for settlement for many years and believed that the Indians would continue to make their living primarily from hunting, fishing and trapping.
The Indians objected to the white men coming into their territory in the absence of a treaty. They believed that the territory was theirs and that they would continue to prosper without assistance from the government.
Unlike the situation of the Indians involved in earlier treaties, the Indians of Treaty 8 were not destitute and were well able to support themselves with their traditional and other pursuits.
The Indians of Treaty 8 were relatively sophisticated and sought out information of the treaty prior to the arrival of the Treaty Commissioners. They forwarded some questions about the meaning of the treaty through the missionaries and asked questions of the police.
They did not wish to be confined to reserves or have their livelihood restricted. They also had information about the reserve policy and the fate of Indians who had previously adhered to treaty and settled on reserves. The Crown by 1899 was disillusioned with the reserve policy and did not expect the need for reserves would arise, as settlement was not expected to be significant in the Treaty 8 territory.
The Indians, at least in some parts of the Treaty 8 territory, had access to and were familiar with news of current events.
The Indians negotiated the treaty from a position of relative strength and knowledge. They were negotiating a relationship with the Crown. They sought assurances about their sovereignty (in terms of their independence), their ability to pursue their occupations unfettered, and their freedom from certain aspects of Crown sovereignty, namely the imposition of conscription and taxation.
Notices were sent throughout the district before the treaty advising the Indians that the Commissioners would attend at certain locations on certain dates in order to negotiate a treaty.
The Treaty was negotiated orally through the use of various interpreters at the eight locations that were visited by the Treaty Commissioners in 1899.
The Indians did not read or write English as evidenced by the use of an "X" instead of a signature.
They were not provided with a copy of the treaty in 1899; the Treaty Commissioners did not release a copy of the treaty to anyone; aboriginal or non-aboriginal.
The Treaty Commissioners were aware that the Indians were relying upon their oral assurances and took pains to document them in a report made several weeks after the negotiations were concluded.
There was one treaty text which probably travelled with Laird after the Treaty party split up. Adhesions were taken by Laird, Ross and McKenna and sometimes Ross and McKenna separately. The adhesions taken by Ross and McKenna were on separate pieces of paper upon which was noted in handwriting that the terms of the treaty had been explained.
The contemporaneous reports of the treaty negotiations are limited. The most detailed accounts come from Lesser Slave Lake and Fort Chipewyan. They do not purport to record all of the discussions.
The Treaty Commissioners did not make it clear which promises or assurances were contained in the text of the treaty and which were not. The aboriginal oral history indicates that all of their promises and assurances were understood to be part of the treaty. This is consistent with the accounts of the non-aboriginal observers to the treaty who also did not distinguish between promises recorded in the formal text of the treaty and those that were not.
One of the assurances given was that the treaty would not lead to the imposition of any tax. This assurance was made in response to an issue raised by the Indians themselves. They were afraid that the treaty would lead to the imposition of tax.
In 1899 the Indians of Treaty 8 were not, and had not been subject to tax.
The Crown viewed Indians residing on aboriginal title lands to be exempt from taxation due to the "peculiar nature of their land holdings".
Given the nature of taxation in 1899, being primarily custom and excise tax and local municipal tax on personal and real property, the Indians were not seen as taxable because of their Indian way of life.
It was part of the Crown's Indian policy to protect Indians by treating them as wards of the government. They were not given the rights of citizenship such as the vote and were protected from taxation and the seizure of their property.
The fundamental goal of Indian policy was ultimately to remove any distinction and privilege accorded to the Indian people as Indians. This was called enfranchisement. When an Indian was "suitably advanced" he could be allocated individual land, and following a probationary period, he could be given fee simple title to that land and declared "enfranchised" - which meant he was no longer an Indian.
Accordingly, in the eyes of the Crown, an Indian was only taxable when he became an individual property owner which coincided with becoming a non-Indian.
Therefore the assurance that the treaty would not lead to the imposition of tax would not have been seen as a significant promise. It had no cost associated with it as Indians were not taxpayers in any event. This is also evidenced by the fact that senior officials made no protest about the promise when they received the Commissioners' Report.
For their part, the Indians believed they were negotiating the future of their relationship. They saw the treaty as enhancing their ability to make a living. They were to be furnished with ammunition and twine to assist with hunting and fishing. They were offered tools, implements and stock to facilitate an additional or alternative livelihood.
The Indian people of Treaty 8 had the means to be aware of issues and controversies arising in the settled area adjacent to them, including taxation issues.
The Indians' concerns about contemporary issues such as conscription, taxation, and the coming of the railroad, confirms the contextual evidence that they had the means to gain knowledge and did gain knowledge of current affairs.
The Indians would have naturally understood that the Commissioners' assurance meant their status as non-taxpayers would continue after they entered into treaty. This was also the view of the Treaty Commissioners (although the Commissioners may have believed that the primary reason the Indians would not be taxed was not because of the treaty promise but because they would not be taxed while they continued their aboriginal lifestyle and remained unenfranchised Indians).
The Treaty Commissioners were the drafters of their report, were sophisticated men who knew the political and legal import of the word "tax". They would not have used it casually. Tax has a plain and ordinary meaning and itself is not ambiguous.
When the Treaty 8 Commissioners and the Indians spoke of tax they were speaking of the same thing. Both Ross and Laird would have been familiar with the current political issues and controversies over direct taxation and the various forms of municipal taxation(Submissions of the Plaintiffs, pp. 4-8). [Emphasis added]
[158] The Plaintiffs' argument relies heavily on Dr. Irwin's expert evidence provided in his written report. In particular, with respect to the interest that Aboriginal People wished to protect by entering into the Treaty, Dr. Irwin expresses the opinion that they were concerned with much more than merely protecting their traditional mode of life, being hunting, fishing, and trapping. They were mainly concerned about receiving assurances and promises from the Commissioners that their freedom, independence, and ability to support themselves would not be threatened (Irwin A, 24). As a result, Dr. Irwin concludes as follows:
In their report, the Treaty Commissioners linked Indian peoples concerns to protect their mode of life with their concerns regarding taxation and forced military service. All of these issues reflect similar concerns regarding the role of the state in the life of the Indian peoples after Treaty. Laird assured the Indian peoples that the government would not interfere in their mode of life, that the treaty would not open the way to taxation, and Indian peoples would not be forced to serve in the armed forces. Under the condition of these promises, the Indian peoples accepted Treaty Eight. The treaty, as it was explained, protected their freedom, their liberty, and their autonomy. No one would force them to adapt new life styles. No one would force them to live on reserves. No one would prevent them from hunting, trapping, fishing, or working as boatmen or freighters. The state would not impose levies upon them in the form of taxes nor force them to take up arms....
The Indian peoples perspective on the treaty provides context for understanding why they introduced the issue of taxation during the negotiations. They were concerned about the role of the government in their lives after they agreed to open the territory (Irwin A, 25-26).
[159] Thus, Dr. Irwin's written analysis prepared before trial appears to support the Plaintiffs' theory of a common intention to provide a tax exemption. However, in my opinion, in the evidence he gave at trial, Dr. Irwin neutralizes his first expressed opinion, and, in fact, his evidence goes to prove the opposite conclusion. Under examination on the third day of the trial, he made the following statements:
I would argue that what they tell them is that the treaty does not lead to the imposition of any tax ... I cannot resolve, as a historian, in my own mind, the idea that somehow somebody as experienced as James Ross and David Laird would tell Indian peoples that they would never pay tax. That is just not -- it is unfathomable knowing who they are historically and their positions and their status and their backgrounds to believe they would do that.
I do believe they would tell the Indian peoples quite clearly that if somebody at Lesser Slave Lake asked and said, "We hear from Edmonton that you are considering taxation." And David Laird would say to them, "The treaty does not lead to the imposition of any tax. It is not our intention to tax with the treaty." This is not an extension of that debate. It does not affect it (Transcript, 9 May 2001, p.491). [Emphasis added]
[160] Dr. Irwin then states:
I then also believe -- based upon what I have been able to arrive at in the documentary record about the Indian motivations -- that they would accept that as a statement, that they would not be taxed. And that's how they would interpret what was told to them. It fits into their negotiating strategy and what they are trying to accomplish, and it resonated that way with them (Transcript, 9 May 2001, p.491-492).
Dr. Irwin then summarizes as follows:
There is significant evidence that [the Indian peoples] were in communication with [the Treaty 8] region, and that there was ongoing correspondence through the districts. There was a correspondent of the Bulletin at Lesser Slave Lake recording regularly on happening and discussing issues emerging from Edmonton.
I believe they heard of these rumors. When the treaty commissioners arrived to discuss the treaty, they asked the treaty commissioners about these rumors. They asked and reported that they did not desire or did not -- did not desire to have taxation come to the district via what these rumors were discussing and talking about.
The treaty commissioners, in response, informed the Indian peoples that this treaty does not lead to the imposition of any tax.
It does not bring these tax structures that you have heard about to the district.
The Indian peoples were negotiating from a position of trying to establish the nature of the relationship that they would have with the Government of Canada, and would take that to mean that they were not going to be taxed; that this would be the nature of their relationship and how it would be played out.
Other issues of taxation are under discussion. Specifically, I believe they probably discussed the fishing license fees issue.
They would be aware of this from correspondence with relatives that they have and people at Lac La Biche.
In this regard, they debated hunting and fishing rights and would bring up the issue of license fees.
It is quite possible that this was included in the discussion as one of the forms of taxation under consideration.
The issue of excise taxes, however, I do not believe played a role; nor do I believe the discussion was focused on the Indian Act or issues of Indian Act taxation.
...
In terms of Indian policy, my review of the developments leading to Treaty Number 8 and of the legislative frameworks that existed to that time, led me to conclude thatdiscussions of taxation would not be of concern to the commissioners; that they would not have let off our alarm bells when they heard the word, because from their perspectives as commissioners discussing taxation with them was simple. They were Indians living an Indian lifestyle and as such, the commissioners believed they would not be subject to tax in the foreseeable future (Transcript, 9 May 2001, p.493-495). [Emphasis added]
[161] The quoted evidence certainly leaves no doubt that Dr. Irwin is of the opinion that there was no common intention or understanding between the Commissioners and the Aboriginal People that the tax assurance constituted a promise of a tax exemption. In the course of giving the evidence, for certainty on this point, I asked Dr. Irwin the following question, and obtained the noted reply:
Question: [Was] one talking about one thing, and the other understood something else?
Answer: That is my opinion, yes (Transcript, 9 May, 2001, p.493).
[162] During final oral argument, I asked counsel for the Plaintiffs to explain how a finding of common intention of a tax exemption can be made having regard to the opinion expressed by Dr. Irwin. The response advanced two arguments which require comment.
[163] First, the Plaintiffs acknowledge Dr. Irwin's opinion respecting the subjective intension of the Commissioners, but, in effect, ask that it not be given weight because it is not the subjective intention of one of the parties to the Treaty that matters; instead it is the opinion of an "officious bystander" that matters. The reference to this perspective in treaty interpretation is found in Justice Binnie's decision in Marshall where at paragraph 43 he says as follows:
The law has long recognized that parties make assumptions when they enter into agreements about certain things that give their arrangements efficacy. Courts will imply a contractual term on the basis of presumed intentions of the parties where it is necessary to assure the efficacy of the contract, e.g., where it meets the "officious bystander test"...
[164] I do not accept this "officious bystander" argument as an adequate response because the situation at hand is not one of finding presumed intention to give efficacy to the Treaty, it is one of confronting an expert opinion that there is a clear lack of intention on the part of one of the parties to the Treaty.
[165] Second, the Plaintiffs reiterate the argument set out in the summary quoted above, and which finds some support in the opinion of Dr. McCormack in her written report as follows:
It was probably easy for the Commissioners to promise Indians that they would not face the imposition of taxation, on the grounds of both way of life and formal definition. Despite their "modern" appearance and lack of a picturesque appearance, the Indians in northern Alberta and other parts of the Treaty 8 region in 1899 were perceived as likely to persist in their hunting and trapping way of life for some time to come and not being in a position to pay taxes. It was Métis who were expected to choose to live in a different manner, and indeed, they had already demonstrated their involvement in wage labor. The provisions of the Indian Act provided only for the protection of status Indians and their lands. But, because Indians on reserves did not own land, they would not pay property tax. Their children were typically placed in church-run residential schools that were subsidized by the federal government, so there was no need to anticipate the establishment of school districts. Once Indians relinquished their legal status through voluntary or involuntary enfranchisement, they would no longer be considered "Indians" and would then be eligible for all the duties of citizenship, including taxation. In short, if Indians lived on reserves, they would not pay tax. If they did not live on reserves, it was presumed that they would be leading a "traditional" subsistence-based lifestyle and would not be in circumstances that would result in taxation. (McCormack A, 53.). [Emphasis added]
Counsel for the Plaintiffs stated in final oral argument that "this is the essence of a great deal of the Plaintiffs' position" (Transcript, 22 January 2002, p.5197).
[166] The detailed argument constructed by the Plaintiffs to support their position is based on the idea that the Treaty Commissioners did not consider that Aboriginal People would be taxpayers; therefore, a promise of a tax exemption would not be a significant compromise. The Plaintiffs rely on two lines of analysis to come to this position: first, an interpretation of the Indian Act applicable in 1899 makes it possible to conclude that Aboriginal People were in no way subject to taxation; and second, a contextual historical perspective can be relied upon to conclude that the tax exemption promise would have been within the Commissioners' mandate and, furthermore, that the Commissioners believed that Aboriginal People would not, in the future, be subject to taxation.
1. The statutory interpretation analysis
[167] The Plaintiffs state that, even before the advent of any statutory protections respecting taxation, among the characteristics of the "peculiar title of Indians to their lands was exemption from taxation", and in 1876 this legal concept was codified in the Indian Act (Plaintiffs' Argument, p.15-16). Therefore, to test the correctness of this approach, it is necessary to consider the Indian Act provisions as they existed in 1899. It is agreed that the relevant provisions of the 1886 Indian Act, as amended to 1899, read as follows:
s.77. No Indian or non-treaty Indian shall be liable to be taxed for any real or personal property, unless he holds, in his individual right, real estate under a lease or in fee simple, or personal property outside of the reserve or special reserve - in which case he shall be liable to be taxed for such real or personal property at the same rate as other persons in the locality in which it is situate:
2. No taxes shall be levied on the real property of any Indian, acquired under the enfranchisement clauses of this Act, until the same has been declared liable to taxation by proclamation of the Governor in Council, published in the Canada Gazette:
3. All land vested in the Crown or in any person, in trust for or for the use of any Indian or non-treaty Indian, or any band or irregular band of Indians or non-treaty Indians, shall be exempt from taxation.
...
s.126. No Indian or non-treaty Indian, resident in the Province of Manitoba, the North-West Territories or the District of Keewatin, shall be held capable of having acquired or of acquiring a homestead or pre-emption right to a quarter section, or any portion of land in any surveyed or unsurveyed lands in the Province of Manitoba, the North-West Territories or in the District of Keewatin, or the right to share in the distribution of any lands allotted to half-breeds, subject to the following exceptions: ... [Emphasis added]
The following definitions offered in s.2 of the 1886 Indian Act are also relevant:
(d.) The expression "band" means any tribe, band or body of Indians who own or are interested in a reserve or in Indian lands in common, of which the legal title is vested in the Crown, or who share alike in the distribution of any annuities or interest moneys for which the Government of Canada is responsible;
...
(g.) The expression "irregular band" means any tribe, band or body of persons of Indian blood who own no interest in any reserve or lands of which the legal title is vested in the Crown, who possess no common fund managed by the Government of Canada, and who have not had any treaty relations with the Crown;
(h.) The expression "Indian" means -
First. Any male person of Indian blood reputed to belong to a particular band:
Secondly. Any child of such person;
Thirdly. Any woman who is or was lawfully married to such person;
(i.) The expression "non-treaty Indian" means any person of Indian blood who is reputed to belong to an irregular band, or who follows the Indian mode of life, even if such person is only a temporary resident in Canada;
(j.) The expression "enfranchised Indian" means any Indian, his wife or minor unmarried child, who has received letters patent granting to him in fee simple any portion of the reserve which has been allotted to him or to his wife and minor children by the band to which he belongs, or any unmarried Indian who has received letters patent for an allotment of the reserve;
(k.) The expression "reserve" means any tract or tracts of land set apart by treaty or otherwise for the use or benefit of or granted to a particular band of Indians, of which the legal title is in the Crown, and which remains a portion of the said reserve, and includes all the trees, wood, timber, soil, stone, minerals, metals and other valuables thereon or therein;
(l.) The expression "special reserve" means any tract or tracts of land and everything belonging thereto, set apart for the use or benefit of any band or irregular band of Indians, the title of which is vested in a society, corporation or community legally established, and capable of suing and being sued, or in a person or persons of European decent - but which land is held in trust for such band or irregular band of Indians;
[168] The Plaintiffs argue that, by s.77, "the Act created an exemption from taxes on real or personal property unless the Indian Person owned land in fee simple, or personal property was owned off the reserve. For the Aboriginal People inhabiting the Treaty 8 area (and elsewhere), ownership of the land in fee simple would have been a legal impossibility [because of s.126]" (Plaintiffs' Argument, p.16).
[169] Therefore, as the argument goes, because the Commissioners were not promising Aboriginal People a situation that did not already exist, it would have been easy for them to make a promise of tax exemption. In addition, it is argued that the notion of making a treaty promise to last "forever" would not act as an impediment to making it since the Indian Act at the time promoted a policy of assimilation, and, thus, the Treaty Commissioners would consider that such a promise would last only so long as "Indians" remain "Indians" under the law (Plaintiffs' Argument, p. 50).
[170] I find that I cannot give weight to this first line of analysis because, in my opinion, it fails on the statutory interpretation adopted.
[171] No evidence has been produced to aid in the interpretation of the 1886 Indian Act provisions; thus, the plain meaning of the words of the provisions determine their interpretation. In my opinion, the Plaintiffs' interpretation argument overstates the plain meaning to be found; the Plaintiffs have not shown that Aboriginal People had complete tax exemption at the time of Treaty.
[172] It is agreed that s.126 applies to the Aboriginal People in Treaty 8 in 1899. Canada argues that the limitation on land ownership imposed by s.126 applied only to homestead and pre-emption rights to land. That is, the phrase "any portion of land" grammatically refers either to pre-emption rights to a quarter section or to pre-emption rights to any other portion of land. Therefore, according to this interpretation, Aboriginal People of Treaty 8 were, in law, capable of owning land (Transcript, 22 January 2002, 5207).
[173] I disagree with this reading of s.126. On its plain meaning, I find that Aboriginal People were prohibited from acquiring three types of property in land: a homestead or pre-emption right to a quarter section; or any portion of land in any surveyed or unsurveyed lands in the Province of Manitoba, the North West Territories or in the District of Keewatin; or the right to share in the distribution of any lands allotted to half-breeds.
[174] While the Plaintiffs may be correct in stating that Aboriginal People were not subject to a tax on land, this fact does not eliminate the possibility that they could be subject to tax on personal property held outside of a reserve. I agree with Canada's argument that the tax exemptions in the Indian Act at the time of Treaty related to certain types of property and were not based on individual status (Transcript, 22 January 2002, 5708). In fact, any requirement to pay income tax would not be affected by s.126, and, as a result, Aboriginal People living off a reserve or other lands held in trust by the Crown could have been required to pay income tax, had it been legally imposed.
[175] Therefore, I find that there is no statutory basis for a claim that it would have been easy for the Treaty Commissioners to promise a tax exemption.
2. The contextual analysis
[176] The Plaintiffs assert that their legal argument is bolstered by the contextual evidence that the limitations on the Commissioners to not undertake obligations in excess of those provided for in previous numbered treaties related only to cost. Therefore, it is argued that, since the tax exemption promise did not carry a cost because Aboriginal People were already exempt from tax, the Commissioners were able to make it (Plaintiffs' Argument, pp. 23-24). As a contributing factor prompting the tax exemption promise, reference is also made to the notion that the Commissioners did not expect that the lifestyle of the People of Treaty 8 would change significantly in the near future and, as long as this was the case, they would not be subject to taxation.
[177] The Plaintiffs summarize their argument as follows:
Because the Indian people of Treaty 8 were not subject to taxation in 1899, a promise of freedom from taxation would carry no cost to the government; Indian people were not a source of revenue. Thus, in making the taxation promise, the Commissioners would not have been contravening their mandate. They were acting squarely within their mandate. They were responding flexibly to a situation which arose at the time of negotiations, and they did not, by giving the promise, increase the obligations of the government or the cost of the treaty (Plaintiffs' Argument, p.54).
[178] I find that I cannot give weight to this contextual argument. First, the argument is undermined by my finding that the Plaintiffs have incorrectly interpreted the applicable Indian Act provisions, and second, apart from Dr. McCormack's "it was probably easy" observation, the argument is not supported by expert opinion.
[179] As quoted above, it is true that Dr. Irwin believes an Aboriginal expression of concern about tax would not be of concern to the Commissioners because "they were Indians living an Indian lifestyle and, as such, the Commissioners believed they would not be subject to tax in the foreseeable future." However, in my opinion, this does not prove that a tax exemption promise was, in fact, made; first, there would be no point in doing so and, second, the evidence that Commissioner Laird would not have done so is strong.
[180] In conclusion, in apparent contradiction to her "it would have been easy" opinion in her first report, it is important to note Dr. McCormack's statement in her rebuttal report that "[it is our] contention that what the Commissioners meant and presented to the Indians during treaty negotiations was not always heard or understood by the Indians in the same way" (McCormack B, 48). This statement accords with Dr. Irwin's opinion that there was no common intention between the Commissioners and the Aboriginal People with respect to the promise of a tax exemption.
[181] As will be further discussed below, I put weight on Dr. Irwin's opinion that the Commissioners would not have told the Aboriginal People that they would never pay tax, and find as a fact that there was no common intention with respect to a promise of a tax exemption. In fact, Dr. Irwin's evidence supports the conclusion that there was a fundamental misunderstanding between the Commissioners and the Aboriginal People.
[182] At this juncture it is convenient to dispense with a point emphasised by Alberta with respect to Keenooshayo's and Moostoos's statements quoted from Mair in Section II above.
[183] Part of Exhibit 119 is a letter addressed to the Superintendent General of Indian Affairs, written within months of the signing of the Treaty on behalf of Keenooshayo and Moostoos as Chief and Counsellor of the Lesser Slave Lake Band, and three other counsellors of the Band. In the letter, the Chief and Counsellors refer to the fact that, during the negotiations they were promised as soon as they were ready to select a reserve they could do so, and, accordingly, announce that they are ready to select their Reserve on the south side of the Drift Pile River. By way of explanation for their request, they say as follows:
The reason we accepted Treaty was that we saw we had to change our way of living, that furs were getting scarce and also moose, and that if we had cattle and had potatoes and barley to eat we would be better off.
[184] Alberta argues that a reasonable explanation for the writing of the letter is that, during the negotiations at Lesser Slave Lake, the discussion of reserve lands or lands in severalty led to the questions about tax, and that, in this context, those that raised the tax concern were assured that they need not fear signing the Treaty because any land they acquired in either way would be protected from taxation under the Indian Act of the day (Alberta's Reply to Plaintiffs' Rebuttal Submissions, pp.18-20).
[185] I find the argument advanced to be based on conjecture, and give it no weight. We can certainly take from the statements of the Aboriginal leaders quoted in Mair that, as a bargaining position, the Aboriginal People to the Treaty 8 negotiations were seeking as much by way of concessions as they could from the Commissioners, while at the same time allowing as little intervention in their lives as possible. As to the actual interests of members of the Lesser Slave Lake Band, it is also clear that they believed the grant of reserve land was necessary for shear survival and, thus, wanted that promise as part of the Treaty. However, I find by this reality, the motive for Aboriginal People raising the tax concern reported by the Commissioners is not proved as argued.
B. The freedom from licence fee theory
[186] Dr. Ens submitted an alternative understanding of the common intention. He states that the primary concern of Aboriginal People was to ensure cultural and economic survival; the guiding force in Aboriginal politics was the search for security (Ens, 23). Because of this, their primary focus would have been on hunting and fishing rights; this would enable them to best preserve their way of life (Ens, 2). He comes to this understanding not only from evidence in the Treaty 8 area but by analogy to other treaty negotiations and experiences (Ens, 19-25).
[187] Furthermore, Dr. Ens views the Treaty Commissioners_ latitude in negotiating treaty rather narrowly (Ens, 61-63). He emphasises the problems that had occurred with outside promises in Treaties 1 and 2 and uses this to explain why the Commissioners, especially David Laird who had been involved in resolving the conflicts stemming from Treaties 1 and 2, would have been very reticent to make further outside promises (Ens, 3; 26-30).
[188] For Dr. Ens, Aboriginal People would have asked about that which they were aware and about which they were concerned: because of the focus on cultural and economic survival, their primary concern would have been preserving their way of life, which involved hunting and fishing (Ens, 3; 46; 57-58); they would have known about the fishing licences that were being imposed elsewhere because of their contacts with the Metis and the Aboriginal People of Treaty 6 (Ens, 4; 45; 75); and they asked about fishing licences and, therefore, the Commissioners' comments would also have been with respect to this issue (Ens, 7-8).
[189] I am unconvinced that the tax assurance can be viewed as narrowly as advanced by Dr. Ens.
[190] In the first place, I find it difficult to accept that the Commissioners would refer to something as specific as fishing licences, or "free licences" or "free privilege", as licensing exemptions were discussed at the time, with as broad a term as "tax". Dr. Ens and Dr. Irwin both emphasize the experience and expertise of the Treaty Commissioners, especially Commissioner Laird, and I agree with the opinion of Dr. Irwin that Commissioner Laird was too experienced to use a broad term such as tax, with its more extensive implications, when a more narrow term would more accurately describe the discussion. While fishing licences were at times referred to as a tax, these terms were not completely synonymous (Irwin B, 7-8).
[191] In addition, as mentioned, Dr. Ens' opinion is based on his view of the primary interest of the Aboriginal People being to ensure their cultural and economic survival. This view is the subject matter of a running academic debate between he and Dr. Irwin, who views the same historical record and concludes the primary interest of the Aboriginal People is the pursuit of autonomy rather than merely cultural and economic survival. As a result, Dr. Ens and Dr. Irwin reach different conclusions on the meaning of the tax assurance.
[192] The passage from Mair quoted at length in Section II discloses how Keenooshayo chose to express the Aboriginal interest: he said "The Indian loves his way of living and his free life." This statement incorporates both the interest in cultural and economic survival and the pursuit of autonomy. In my opinion, the dispute in the expert evidence offered can be reconciled by recognizing that, for the Aboriginal People involved, there was a mix of concerns. It is impossible to conclude that, as the Commissioners made their way around the Treaty region, the only tax concern expressed would have been narrowly focussed on fishing licences, and not on the potential incursion of other forms of tax.
[193] Thus, I give no weight to this theory as an explanation of the meaning of the tax assurance as a Treaty term.
C. The literal interpretation of the Treaty Report theory
[194] As explained in Section III above, Dr. Flanagan is a proponent of the literal interpretation of the Treaty Report, and, based on this approach and his understanding of the context in which the Treaty was negotiated, argues that the tax assurance was nothing more than "an explanation of existing government policy as embodied in the Indian Act." Thus, for Dr. Flanagan, there was no treaty promise respecting tax. I have already found that the assurance constitutes a Treaty promise, and, thus, do not accept Dr. Flanagan's conclusion.
[195] Given the evidence of oral tradition quoted below in this Section of these reasons, I give absolutely no weight to the assertion that the Aboriginal People expressing the tax concern understood the tax assurance given to be only an explanation of government policy. Thus, I give no weight to this theory.
D. The Treaty is not a vehicle of the payment of tax theory
[196] Similar to the technical interpretation of the Treaty Report approach presented by Alberta on the basis of Dr. Flanagan's evidence, Canada argues that the reference to tax in the Treaty Report was understood by both the Commissioners and the Aboriginal People as merely an explanation of government policy. By this explanation, the Aboriginal People were informed and understood that by taking Treaty they would benefit from the tax exemptions available under the Indian Act but, if the legislation were to change, so would their tax position.
[197] While I have already dismissed the literal interpretation theory, Canada's argument requires further comment.
[198] In support of the "not a vehicle" theory, Canada relies on the conduct of Aboriginal People subsequent to Treaty 8, and notes in written argument that no complaints of tax exemption were made by various Aboriginal bands and associations in the time after the Treaty was concluded (Defendants' Submission, pp. 43-44). Canada also relies on the fact that a tax exemption promise "would have been both wholly inconsistent with the law as set out in the Indian Act and the Indian Advancement Act, as they read in 1899, and beyond the mandate of the Commissioners as granted by the Privy Council" (Defendants' Submission, p.53).
[199] The Cree and Dene societies of Treaty 8 were oral societies. I do not consider the fact that the People of these societies did not complain in writing to government officials to be particularly relevant to proving the content of an oral assurance given at the time of Treaty negotiation. In addition, I find the fact that a tax exemption promise would have been inconsistent with existing law and the Commissioners' mandate is not persuasive in and of itself. While a tax exemption promise would have been outside the mandate of the Commissioners, this fact does not negate a probability that words were spoken about tax which could have been taken as a tax exemption promise.
[200] With respect to the assurance itself, while it might be easy for a lawyer to argue that its complex wording can be interpreted to be merely an explanation that the Treaty is not a taxing instrument, it is also easy to see how a present day non-lawyer could be confused into believing that the words mean that the Treaty provides an exemption from the payment of tax. Therefore, I find very hard to conclude that, if the same or like tax assurance words were spoken by the Commissioners through Cree and Dene interpreters to the Aboriginal People in the Treaty 8 region, there would be a common understanding that the Treaty is simply not a vehicle for the payment of tax.
[201] I put weight on Dr. Irwin's opinion that Commissioner Laird would not have promised a tax exemption because of the concurrence in the expert opinion that he was a man of high professionalism, sound reputation, and extensive knowledge of Aboriginal treaty and legal issues. It seems correct to me that such a person sent to negotiate a treaty on the part of Canada would not promise what had never been promised before, without specific instructions that he was free to do so. It has been proved to my satisfaction that no such instructions were given.
[202] As to Commissioner Laird's positive intention in making the tax assurance, Dr. Irwin speculates that, if asked whether taxation is part of the Treaty, Commissioner Laird would have responded that "the Treaty does not lead to the imposition of any tax...it is not our intention to tax with the Treaty...[and the Aboriginal People] would accept that as a statement that they would not be taxed" (Transcript, 9 May 2001, p. 491). Thus, Dr. Irwin believes that the Commissioners might have meant that the Treaty was not a vehicle for the payment of tax, but it is important to note that he goes on to confirm that the Aboriginal People would not have understood it that way (Transcript, 9 May 2001, p. 492).
[203] I am unable to put weight on Dr. Irwin's speculation about what would have been said at the time of negotiations as proof of what was, in fact, said. But, I do accept his opinion on what was not intended by Commissioner Laird, by whatever was said. In the end result, I find that Dr. Irwin's evidence does not support the "not a vehicle" theory of common intention.
[204] The common intention advanced in this theory requires that the Aboriginal People who heard and understood the tax assurance would know that, while the Treaty was not a vehicle for the payment of tax, because they agreed to abide by the laws of Canada they might very well be subject to be taxed then, or in the future, by properly passed legislative provisions. If this idea is somewhat confusing to the knowledgeable reader today, one can only imagine what it would have sounded like to the Aboriginal People assembled around the Treaty 8 region in 1899. There is no evidence that the Aboriginal understanding was as detailed or went as far as Canada suggests.
[205] In fact, there is some evidence that the Commissioners were reluctant to get into too much detail concerning the ramifications of entering into Treaty for fear that the negotiations might fail. In his report, Dr. Irwin supplies an example of the Commissioners being "less than clear about certain issues." Although Commissioner McKenna knew that a moratorium on Buffalo hunting had been extended, he told the Aboriginal People at Fort Chipewyan "that we had no instructions as to any changes in the law." In a letter to Mr. Sifton, he stated that "Our mission would likely have been failure had we opened up that question" (Irwin A, 30-31).
[206] Therefore, I find that, if there was no common understanding, there cannot be the common intention advanced by Canada. Consequently, I give no weight to this theory.
E. Conclusion
[207] For the reasons provided, I find the expert and legal opinion tendered by the Plaintiffs, Canada, and Alberta has failed to prove the meaning of the tax assurance made. Consequently, there is no proof of a common understanding or intention between the Commissioners and the Aboriginal People with respect to the meaning of the tax Treaty term.
IV(b). The Aboriginal Perspective
[208] It has been established that the Commissioners did not intend to make a tax exemption promise, but on the analysis which follows, I find that the Aboriginal People understood from what the Commissioners said that a tax exemption promise was made.
[209] The Plaintiffs have led evidence of Aboriginal oral tradition to prove the Aboriginal perspective on the meaning of the tax assurance. The significance of this type of evidence is explained by Dr. von Gernet in his written report as follows:
Oral narratives fulfill numerous important psychological, social, political, and ideological functions within the groups in which they are heard. Among these functions is the transmission of knowledge about past events. Although people usually tell history for themselves and not to supply grist for someone else's mill, sometimes stories are told to outsiders. An oral performance may be induced for the purpose of recording it, thereby changing the context from a "natural" to an "artificial" setting. This is what happens, for instance, when a lawyer asks an Aboriginal Elder to tell a story and it is recorded in the transcripts. It should always be kept in mind that, whatever their usual role within a community, once oral narratives or performances are offered as insights into a past that is contested or otherwise under investigation and are marshaled in support of an argument in a dispute with outsiders, they are either transformed into or specifically generated as evidence and can no longer be addressed solely on their own terms. This is clearly different from records which, in the parlance of archivists, constitute the "fonds" created in the course of usual activities within a community.
The term "document" traditionally meant a source of evidence. Hence, oral narratives which purportedly contain evidence about past events are essentially oral documents even if they have not been reduced to writing or otherwise transferred to an apparatus for fixing voices. When they are recorded on audio or video tape and deposited in audiovisual archives, they continue to be what some archivists have aptly termed "documents that move and speak." When transcribed, they begin to resemble the documents commonly used by historians. It is useful to distinguish two types of these oral documents: oral histories and oral traditions. Oral histories are defined as recollections of individuals who were eyewitnesses or had personal experience with events occurring within their lifetime. Oral traditions, on the other hand, are documents about past events transmitted by word of mouth over at least a generation (von Gernet, p.5).
The parlance used in the evidence in the present case and, indeed, in the relevant decisions of the Supreme Court of Canada does not make the fine distinction offered by Dr. von Gernet, but rather refers to evidence of oral tradition as "oral history".
[210] To prove their claim of a tax exemption promise through evidence of oral tradition, the Plaintiffs rely on the evidence of three Aboriginal witnesses called during the course of trial, and 13 transcripts of the evidence of elders taken some 30 years ago. In view of the finding already made in Section IV(a) above that there was no common intention with respect to the promise of a tax exemption, the only issue of fact outstanding is proof of the belief that a tax exemption promise was made. Thus, consideration of the oral tradition evidence will be limited to this issue.
A. The law regarding oral tradition evidence
[211] The Supreme Court of Canada in Mitchell has clearly set the criteria for the admission of oral tradition evidence where Chief Justice McLachlin says at paragraphs 27 to 35 as follows:
Aboriginal right claims give rise to unique and inherent evidentiary difficulties. Claimants are called upon to demonstrate features of their pre-contact society, across a gulf of centuries and without the aid of written records. Recognizing these difficulties, this Court has cautioned that the rights protected under s. 35(1) should not be rendered illusory by imposing an impossible burden of proof on those claiming this protection (Simon v. The Queen, [1985] 2 S.C.R. 387, at p. 408). Thus in Van der Peet, supra, the majority of this Court stated that "a court should approach the rules of evidence, and interpret the evidence that exists, with a consciousness of the special nature of aboriginal claims, and of the evidentiary difficulties in proving a right which originates in times where there were no written records of the practices, customs and traditions engaged in" (para. 68).
This guideline applies both to the admissibility of evidence and weighing of aboriginal oral history (Van der Peet, supra; Delgamuukw,[1997] 3 S.C.R. 1010 at para. 82).
Courts render decisions on the basis of evidence. This fundamental principle applies to aboriginal claims as much as to any other claim. Van der Peet and Delgamuukw affirm the continued applicability of the rules of evidence, while cautioning that these rules must be applied flexibly, in a manner commensurate with the inherent difficulties posed by such claims and the promise of reconciliation embodied in s.35(1). This flexible application of the rules of evidence permits, for example, the admissibility of evidence of post-contact activities to prove continuity with pre-contact practices, customs and traditions (Van der Peet, supra, at para. 62) and the meaningful consideration of various forms of oral history (Delgamuukw, supra).
The flexible adaptation of traditional rules of evidence to the challenge of doing justice in aboriginal claims is but an application of the time-honoured principle that the rules of evidence are not "cast in stone, nor are they enacted in a vacuum"(R. v. Levogiannis, [1993] 4 S.C.R. 475, at p. 487). Rather, they are animated by broad, flexible principles, applied purposively to promote truth-finding and fairness. The rules of evidence should facilitate justice, not stand in its way. Underlying the diverse rules on the admissibility of evidence are three simple ideas. First, the evidence must be useful in the sense of tending to prove a fact relevant to the issues in the case. Second, the evidence must be reasonably reliable; unreliable evidence may hinder the search for the truth more than help it. Third, even useful and reasonably reliable evidence may be excluded in the discretion of the trial judge if its probative value is overshadowed by its potential for prejudice.
In Delgamuukw, mindful of these principles, the majority of this Court held that the rules of evidence must be adapted to accommodate oral histories, but did not mandate the blanket admissibility of such evidence or the weight it should be accorded by the trier of fact; rather, it emphasized that admissibility must be determined on a case-by-case basis (para. 87). Oral histories are admissible as evidence where they are both useful and reasonably reliable, subject always to the exclusionary discretion of the trial judge.
Aboriginal oral histories may meet the test of usefulness on two grounds. First, they may offer evidence of ancestral practices and their significance that would not otherwise be available. No other means of obtaining the same evidence may exist, given the absence of contemporaneous records. Second, oral histories may provide the aboriginal perspective on the right claimed. Without such evidence, it might be impossible to gain a true picture of the aboriginal practice relied on or its significance to the society in question. Determining what practices existed, and distinguishing central, defining features of a culture from traits that are marginal or peripheral, is no easy task at a remove of 400 years. Cultural identity is a subjective matter and not easily discerned: see R. L. Barsh and J. Y. Henderson, "The Supreme Court's Van der Peet Trilogy: Naive Imperialism and Ropes of Sand" (1997), 42 McGill L.J. 993, at p. 1000, and J. Woodward, Native Law (loose-leaf), at p. 137. Also see Sparrow, supra, at p. 404; Delgamuukw, supra, at paras. 82-87, and J. Borrows, "The Trickster: Integral to a Distinctive Culture" (1997), 8 Constitutional Forum 27.
The second factor that must be considered in determining the admissibility of evidence in aboriginal cases is reliability: does the witness represent a reasonably reliable source of the particular people's history?The trial judge need not go so far as to find a special guarantee of reliability. However, inquiries as to the witness's ability to know and testify to orally transmitted aboriginal traditions and history may be appropriate both on the question of admissibility and the weight to be assigned the evidence if admitted.
In determining the usefulness and reliability of oral histories, judges must resist facile assumptions based on Eurocentric traditions of gathering and passing on historical facts and traditions. Oral histories reflect the distinctive perspectives and cultures of the communities from which they originate and should not be discounted simply because they do not conform to the expectations of the non-aboriginal perspective. Thus, Delgamuukw cautions against facilely rejecting oral histories simply because they do not convey "historical" truth, contain elements that may be classified as mythology, lack precise detail, embody material tangential to the judicial process, or are confined to the community whose history is being recounted. [Emphasis added]
[212] In Mitchell at paragraphs 36 to 39, Chief Justice McLachlin goes on to comment on issues respecting the weight to be given to oral tradition evidence once admitted, and at paragraph 39 cautions as follows:
There is a boundary that must not be crossed between a sensitive application and a complete abandonment of the rules of evidence. As Binnie J. observed in the context of treaty rights, "[g]enerous rules of interpretation should not be confused with a vague sense of after-the-fact largesse" (R. v. Marshall, [1999] 3 S.C.R. 456, at para. 14). In particular, the Van der Peet approach does not operate to amplify the cogency of evidence adduced in support of an aboriginal claim. Evidence advanced in support of aboriginal claims, like the evidence offered in any case, can run the gamut of cogency from the highly compelling to the highly dubious. Claims must still be established on the basis of persuasive evidence demonstrating their validity on the balance of probabilities. Placing "due weight" on the aboriginal perspective, or ensuring its supporting evidence an "equal footing" with more familiar forms of evidence, means precisely what these phrases suggest: equal and due treatment. While the evidence presented by aboriginal claimants should not be undervalued "simply because that evidence does not conform precisely with the evidentiary standards that would be applied in, for example, a private law torts case" (Van der Peet, supra, at para. 68), neither should it be artificially strained to carry more weight than it can reasonably support. If this is an obvious proposition, it must nonetheless be stated.
[213] A number of Aboriginal People testified during the trial: Charles Benoit, a member of the Mikesew Cree Indian Band and a Plaintiff in the present case; Jim Boucher, Chief of the Fort MacKay Indian Band and Chairman and President of the Athabasca Tribal Corporation; James Badger, former Chief of the Sucker Creek Indian Reserve and former Grand Chief for the Lesser Slave Lake Indian Regional Council; Eddie Tallman, former Chief of the Whitefish Lake First Nation; and Ronald Willier, member of the Sucker Creek Band.
[214] In addition, a number of Aboriginal and non-aboriginal individuals who had been involved with the Treaty and Aboriginal Rights Research project ("TARR"), discussed below, also testified. Among these were: Professor Richard Price, a former researcher and Director of the project; Richard Lightning, who was a field worker/interviewer, assistant Director and later Director; Jim Deranger, a former interviewer and translator; and Lawrence Coutourielle, who worked for the project recording elder interviews and taking notes. Additionally, Delia Opekokew, a lawyer who conducted interviews on behalf of the Grand Council of Treaty Number 8 testified in relation to her work.
[215] However, the Plaintiffs rely on only three witnesses for evidence of oral tradition to prove their claim: Mr. Joe Willier, Mrs. Celeste Randhile, and Mr. Francois Paulette. No objection was made to the introduction of the evidence of oral tradition by Mr. Willier or Mrs. Randhile, but the weight to be given to the evidence is an issue. However, Alberta does object to the evidence of Mr. Paulette. This objection will be dealt with below.
B. Who is qualified to give evidence of oral tradition?
[216] On the evidence, Aboriginal elders were generally identified and qualified by their community as the communicators of oral tradition. Speaking to the role and identity of an elder, Mr. Francois Paulette, a member of the Smith's Landing First Nation, provided in his testimony as follows:
A There are many elders with different skills, many elders. I would describe an elder that tells stories, that is known for telling stories, and a storyteller begins one of -- the storyteller would begin to tell a story, the stories recording the stories of the first snowfall. That is one of -- that is one of the elders that is known for those things, those skills.
There are hunters that know the inside of how to track a moose or buffalo.
There are elders that know the intimacy of medicine, both physical medicine; and there are elders that know where to pick these medicines. Not all the elders know where to pick this particular medicine, just specific ones.
There are also elders that understand the spiritual world in that relationship of the spirit, and he is known for that.
There are people, elders, that were strategists that knew how to plan and strategize.
There were elders that knew the hunting grounds, the movement of animals. There were elders, both men and women that understood water. There are elders that understand the treaties. Not all elders know the intimacy of treaty.
Q So, elders have special areas.
A Just like in this world that we live; everybody has a special order.
Q So, they specialize in different areas of knowledge.
A Yes.
Q As you said, some of these elders have preserved and can transmit the oral history concerning Treaty 8?
A Yes. (Transcript, 17 May 2001, pp. 1411-1413).
[217] When asked what determines who is an elder, Mr. James Gordon Badger, member of the Sucker Creek Indian Band and great great grandson of Moostoos who was a headmen who signed Treaty 8, responded as follows:
Q What determines if someone is an elder in your culture?
A Certainly someone that is very held in high regard that has the respect of the community, that is very knowledgeable in terms of history. As well, I guess, their status within the community, I would say.
Q Is it proper in your culture to ask an elder if they are an elder?
A No, it is not. Now, I have heard of -- there is only one individual I have heard that was, I think, below the age of 60 that was considered an elder by other elders. At that time that fellow was, I believe, roughly around 35. I am guessing, but around 35 or 40 or so, and that is probably the youngest. He was a healer. This individual was a healer and was well-respected by other elders. But mainly the -- it has to do with age, but I think more so the respect, I guess, from the community, and also, I guess, this high regard you are held in terms of the ones that are familiar with the history (Transcript, 15 May 2001, pp.1006-1007).
[218] Each of the witnesses identified certain individuals who were recognized by their communities as having knowledge of the Treaty. In this context, Mr. Badger identified Cree members of the Willier family, stating as follows:
Q From your observation of the elders in the Lesser Slave Lake area, do you have an opinion as to who is the most knowledgeable, or have you observed who is the most respected for their knowledge of the history of the treaty?
A Within Lesser Slave Lake, there are five communities, five First Nation reserves. From that, because I know, he is from my community, Joe Willier, Elder Joe Willier. He also participated in the meetings with the elders.
My elders' committee consisted of 18, and I found that -- it is my personal assessment that Joe Willier was the most knowledgeable. As a matter of fact, I had -- he drew diagrams regarding the treaty as well.
Q What kind of reputation does he have in your community?
A He is very certainly well-respected. He is -- he is held in high regard, I would say. His word -- people go to him for advice. I know I had when I was Chief and also Grand Chief, and he has a tremendous and vast knowledge of history. And he is a law-abiding individual, and that is one of the things you will probably hear him say in terms of what the Indians gave up was they agreed to a law-abiding community in society.
Q Is there anyone else in your experience as respected as Joe for knowledge of the treaty history?
A I think, because of my association my father and I used to belong with, and I would also say the late Scottie Willier was chief for many many years in Sucker Creek prior to that time. He passed away, I believe, in 1981 (Transcript, 15 May 2001, pp. 1007-1008). [Emphasis added]
[219] Similarly, Mr. Paulette identified the late Dene elders with knowledge of the Treaty, stating:
Q Once you became part of the Dene Nation or a leadership role in the Dene Nation, was there anyone else you particularly relied upon about information of the treaty?
A When I first started going to meetings at a young age, 1969, I was 19 -- (Dene spoken -- and thereafter, I became a chief. It opened a whole perspective of the history that I am accustomed to now, and I am very fortunate. I am very fortunate, I can say, because I was one of the youngest chief in the Northwest Territories and, perhaps, Canada at the time, to listen to elders that had detailed knowledge of the treaties, that had -- that were closest to the treaty because some of them were direct descendants of the chiefs that were there and some of them were at the treaty signing.
One in particular of all the elders that I -- that I saw, there were many that were very articulate on treaties, that were very knowledgeable. But one was Joe Charlo from N'dilo Dettah. He stood out to me because the way he described the treaty, and he would not say this in a big crowd, but once -- there was one time where we were in a small room. There were 12 of us. And he says, I will present to you how I got this knowledge. He says -- (Dene spoken -- he would say -- he would go like this. He said the treaties that were made before, he says has been imprinted in my mind, and he would say -- (Dene spoken) -- that was at the treaty in 1900, that was the chief of his tribe, of his people.
When he was a young guy and about 1921, 1922, he summoned me, he summoned me, and in those days for a young guy to be summoned by a chief or an elder was something very big. It must be very important. It must be important. So he said, it was after breakfast, and I went into his tent. He sat me down. He said -- (Dene spoken) -- I want to tell you a story, and I am going to -- (Dene spoken) -- so you remember -- you remember what I am going to tell you, and the way Joe described it, he says this Suzie Drygeese, he put his hand on my head, and he start to speak while he was holding my head -- (Dene spoken -- he was holding my head. He start to talk about the treaty, and from -- after he said, he finished, he said, Okay. Now, you are going to remember. -- (Dene spoken) -- he said, I want you to remember this so your children can remember this. For me to look at this Mr. Charlo when he was told that this Suzie Drygeese said there was a direct flow of information from Suzie Drygeese to me. That was imprinted in his mind until I remember the last time I seen him, that is how he spoke of the treaties (Transcript, 17 May 2001, pp.1392-1394).
[220] Of the surviving elders capable of giving knowledge of the Treaty, Mr. Paulette identified Joe Charlo's widow as the only person alive with this knowledge:
Q Can you tell us approximately how many elders in Fort Smith, Smiths' Landing, and the Fort Resolution area are alive today and can provide this oral history?
A I am now familiar with Smiths' Landing, and the elders that knew the intimacy, the details of the treaties, they are no longer with us. The last one passed away a year ago. His name was August Tourangeau. His father was one of the headmen in the Smiths' Landing history since the signing of the treaty. If you are going to go to Treaty 8, north of where I am from, in Akaitcho territory and Fort Resolution, I am not keeping track of the elders that have been lost in that community. We just lost one elder last -- just recently. So, the elders that have direct knowledge that I know are -- there is probably one elder that I know that may know the treaties is in Lutsel'ke.
Q Is there an English translation?
A Sorry. No. You can't translate it. That is the name. It is Snowdrift.
Q I know where Snowdrift is. I didn't recognize the Dene. Sorry. I believe earlier you mentioned Joe Charlo's wife would also know the history of the treaties. Did I get that right?
A Yes. I would say that she understood because she is closest to the man (Transcript, 17 May 2001, pp.1413-1414).
C. Oral tradition testimony
1. Mr. Joe Willier
[221] Mr. Willier's evidence was tendered in the form of three independent statements as follows:
a. 1991 statement
[222] Mr. Willier's 1991 statement was filed in the form of an unsworn affidavit (Exhibit 34, Tab 15). The circumstances under which the statement was taken are important.
[223] In 1991, at the request of the Aboriginal political organization "The Grand Council of Treaty 8", Ms. Delia Opekokew was asked to conduct interviews with the oldest of the Aboriginal elders about their understanding of the terms and conditions of Treaty 8, in particular with respect to the release of title to lands, and hunting, fishing, and trapping rights. It was in this context that Mr. Willier's statement was taken. Ms. Opekokew was called as a witness in the trial and testified as to her qualifications to take the statement, and to the circumstances under which the statement was produced in its written form.
[224] As to the general circumstances of her involvement, Ms. Opekokew testified that: she is a Saskatchewan lawyer who has practised law since 1979; Cree is her first language, English is her second; as a result of an uncompleted attempt by the Minister of Indian Affairs to review Treaty 8 in the 1980's, the Grand Council of Treaty 8 received a grant from the Government of Canada to investigate the meaning of Treaty 8; as part of this investigation she conducted some 30 interviews with elders identified by the leaders of the funded organization; the interviews were conducted according to guidelines established in the case law at the time, one of which was to ensure that her questions of the elders touched on the history or the connection that the elder had to the direct witnesses that had been present at the time of the treaties; Mr. Joe Willier was identified by the organization's leaders as a result of their knowledge of the elders; and Mr. Willier was interviewed in Cree at his home in Sucker Creek on August 13, 1991.
[225] The documenting process which was followed in taking Mr. Willier's statement is important with respect to the accuracy of the statement taken. Ms. Opekokew testified that: the statement was recorded on videotape, but, in addition, as she was a legal secretary before becoming a lawyer, and therefore being a good typist, the statement was typewritten in English by her at the time by her translating simultaneously from Cree to English as Mr. Willier spoke; and the typewritten version was subsequently verified with the videotape.
[226] With respect to the manner in which the interview was conducted, Ms. Opekokew testified that: she began the interview by explaining that she was going to ask him questions about the terms of Treaty 8; a lot of time was spent with questions about the sources of his information; Mr. Willier did not have to be questioned too much because he had his own story to tell and wanted to do so without interruption; and he was not asked about tax. Ms. Opekokew testified that Mr. Willier's statement was subsequently prepared in affidavit format which was the reporting standard she used for elders' interviews, and, together with the videotape, was sent to her clients with a request that it be sworn; the videotape was the property of the Grand Council and was kept by them, but a copy of the videotape was kept by her only for a time. Apparently, the statement was not subsequently sworn, and no videotapes were produced at trial.
[227] Mr. Willier's entire statement as taken by Ms. Opekokew is as follows:
I, Joseph Willier, of the Indian Reserve of Sucker Creek, in the Province of Alberta, MAKE OATH AND SAY AS FOLLOWS:
1. I am a member of the Sucker Creek Indian Band, a beneficiary of Treaty No. 8, my treaty number is 621, I was born on May 1, 1918, I was told by my father and other elders, who were present at the signing of Treaty No. 8 at Lesser Slave Lake on June 21, 1899, about the terms, and circumstances surrounding the signing of Treaty No. 8, and as such have personal knowledge of the facts and matters hereinafter deposed to expect where stated to be on information and belief and where so stated, I verily believe the same to be true.
2. I am the nephew of Chief Keenooshayoo, and Headman Moostoos, whose picture I am now showing you, both original signatories to Treaty No. 8. I did not know Chief Keenooshayoo because he died during the flu epidemic of 1918 or 1919, when I was a baby. I did not get this story directly from him. It was my father, who was the brother of both Keenooshayoo and Moostoos, who told me of the events surrounding the signing of Treaty No. 8, and the knowledge and understanding that Keenooshayoo, Moostoos, and my father, and others had, of what the guarantees are under Treaty No. 8.
3. I will tell you about what I was instructed, by my father, mother, uncles, and other elders, was promised under Treaty No. 8. At that first treaty, they were promised very little. They were told that they would be helped with everything even gardens, and tools. That the Government would help in setting up each person in farming. They were advised: "to make hay for your animals, the Government will give you the equipment to make the hay, the forks, the scythes. If you help yourself, the Government will assist you with food, until you are finished and ready to support yourself by farming. If you are going to farm, you will be helped by the Government with everything such as seeds. If you want cows, if you want animals, the government will give them to you for you to use in your farming. The government will give you the equipment for you to make hay and to build the barns. The government will give you the food until you are finished setting up your farm." Those were the first promises made to the treaty signatories by the Government.
4. I was told by the different elders who were present that thereafter they shook hands, and while the Commissioner was holding Chief Keenooshayoo's hand, he said "I hardly gave you anything, I am only paying you $5.00, my partner." While they were shaking hands the Commissioner called the Chief his partner. "I am only giving you $5.00 per year, that is nothing". At that point the Commissioner made his major promises to the Chief, such as the right to the special use of hospitals, doctors, judges, education including higher education for Indian people under the treaty which included wherever they wanted to send their children to school. The Commissioner said: "I will give you these things as I have not given you much for each year. But these other promises such as medical assistance, services from our administration of justice system, and education you will have them forever. Nobody can take those guarantees away from you." The Commissioner continued to discuss justice. He said: "if you commit murder, you will not be given the noose (i.e. capital punishment) you will be asked to pay for your crime another way. If I go to war you will not be conscripted as you will be neutral. All these promises I have given you you will have as long as the sun shines, as long as the mountains can be seen, as long as there is grass. It is true I did not give you much in money but these promises will last forever. They will last as long as there is a world." My father and his generation of leaders told me they were being paid for the land. The Commissioner promised that we would never have to pay tax. He said: "You will always be free from tax because you have already paid through selling your land." My uncles, Chief Keenooshayoo, and Headman Moostoos, paid for those rights for us for the future when they sold the land. They paid for our taxes forever when they sold the land. It is my belief that is what is wrong with the GST (Goods and Services Tax).
5. The elders said that the Commissioner continued: "Take the land, which land you know well. Take the land." And Chief Keenooshayoo did take the land as a reserve, this land we are on, and the Chief included the lake as part of the reserve. The Commissioner said: "Take the land including the lake so that you can fish, take ducks, and take their eggs. Take the land in the forest so you can continue to hunt, and where you can trap." So they took land all the way to Swan Hills. There were seven (7) brothers who worked together to identify and take the land they wanted. The Commissioner said: "You will have that land, and nobody can bother you in your land. The police will protect you in your land." And the chief and his brothers took the land, and I have kept a map of their original selection of the land including the lake. The Commissioner continued: "Take the land and no person can bother you on your land. Take all that land for yourself to use for your livelihood, the hunting, fishing and trapping that you already know so well."
6. It is my opinion and belief the land I am describing was not fully paid for. The Chief was not paid for the bush land usually known as the unoccupied Crown land. The Government did not pay for the oil wells, and the Crown land. I was told the Commissioner said: "We have not paid you for all the land only the land that is now settled (i.e. 1899). Any of the bush lands will continue to be yours. If there is anything in this land that we have not paid for, if we take water from the well, you will be paid for it. You will be paid for anything that we dig out underneath as far as the ocean. Those things belong to you. Those trees that are still standing, those belong to you. You can use them until the end of the world. If a white man takes land in the bush lands, you will be paid for the land. Even the underground minerals are yours, so are the trees. You will keep those for your livelihood forever, as long as the sun shines. You will be able to use the land for your traditional livelihood forever." Now, I ask, where is that money from the oil wells? Everyday the whiteman pulls out oil from the oil wells. That money belongs to us. Where is that money? I see logging trucks who pull out the stumpage, that timber belongs to us.
7. The elders who were present at the first treaty have told me Queen Victoria did not buy all the land, she only bought six (6) inches of the farm land. She did not pay for it. She did not buy all the land.
8. My sources for this information include my father, many elders who are now dead, such as Gasmer Cardinal, and Alex Moostoos who was the son of the Headman Moostoos. They were themselves present at the treaty signing, and heard directly the pledges made by the Commissioner. George Okemow was also present, and he told me many times of the promises that were made. I also heard it from Cheekii. I heard about the events that took place at the first treaty, and the Commissioner's speeches, over and over again from many different people at different places and times of my life when they told us about what rights were left to us. The elders knew and understood the treaty well, and passed their reports of the negotiations directly to me. They knew the facts. They saw the man that was sent by Queen Victoria to buy the land. My uncles, my family, and other members of the community preserved the facts. It is the sacred truth. As an example my mother, who died in 1969 at age 102, was present at the treaty. Many elders, such as George Okemow and William Okemow and my mother told me that a large part of the lake should be included in the Sucker Creek Indian Reserve from Shaw Point to the Large point, and to the headland point of the reserve to include much of Lesser Slave Lake.
9. The elders have told me the Commissioner pressured the Chief to take the lake so that he and his children and their future generations could get the fruits of the lake.
10. I heard about what rightly belonged to us. It is my belief and understanding that we are being robbed, that those lands and resources rightly belong to us. I feel that we should fight for our right, that we should seek an account of what rightly belongs to us. All these riches from Treaty No. 8 are going elsewhere.
11. It is my belief we have to put the treaty back together. It has been broken into many pieces by the Government. Now we have to piece it back together. We have to make it whole. All Indians have to work together to collect these original promises because they are supposed to last forever. Oil, timber, and land have all been taken away from us illegally. We have to tell the truth. The Government did not pay fully for the land and resources. They belong to the Indians.
12. This story belongs to me and I want to be given the credit. These facts were given to me by the old people who heard directly from the Commissioner. These people passed the information to me.
13. My uncle was told: "Take the land for yourself so that you and your children, and their future children can live from the land." Now we have marginal land left to us. They are using the land for highways, for their own traplines.
14. I was told by the elders the whiteman is not supposed to bother the Indian. The land is supposed to be used for hunting and the lakes for fishing for the Indian people and their children. My trapline is now taken. The taking of our traplines and the occupation of the land are a breach to treaty. The oil companies are chasing the Indian people out. All resources should be owned by Indian people.
15. I am making this Affidavit in support of the position held by the Indian people of the Treaty No. 8 territory that the articles of the written treaty No. 8 are wrong, that the treaty exists to protect and preserve the land, and economic rights for the beneficiaries of Treaty No. 8 forever, that the signatories to the treaties were of the belief that in exchange and in consideration for the cession of certain land that they and their descendants would own an extensive land base to include the unoccupied Crown lands of 1899, and to include the lake and comprehensive rights to all the fruits of those lands and waters, including the oil, and gas, timber, hunting, fish, and trapping, in perpetuity, and not for any improper purposes.
SWORN BEFORE ME, in the )
of , in the Province)
of , this day of)
, 1992. )
)
)
JOSEPH WILLIER
A Commissioner for Oaths in and )
for the Province of Alberta ) [Emphasis added]
b. February 1999 statement
[228] In preparation for the present litigation, in February 1999, Ms. Karin Buss, counsel for the Plaintiffs, and Ms. Wendy Aasen, expert witness called by the Plaintiffs, travelled to Sucker Creek, and interviewed elders, one of whom was Mr. Joe Willier. The interview was conducted in English by Ms. Aasen, and videotaped by Ms. Buss. The videotape was shown during the course of the trial, and the transcription was marked Exhibit 53. With respect to the issues in the trial, in their written argument, (Appendix D: Plaintiffs' Witnesses and Evidentiary Issues", pp. 35-36) the Plaintiffs rely upon the following statements:
Ms Aasen: There's one thing we would like to ask you about taxes.
Mr. Willier: No tax wasn't paid. No, no cash, nothing, nothing to pay. No hospital, that's what I mean. Nothing to pay. No taxes. Now we're paying GST - -
.......
Ms Aasen: When you were trapping did you have to pay money on the furs that you got, did you pay taxes?
Mr. Willier: We get the money, sell the furs and get the money, yeah.
Ms. Aasen: Did you have to pay tax?
Mr. Willier: No, we never paid. We pay a tax, whatever they charge. What we going to do? Not supposed to pay a tax. That's what these promises say.
.......
Mr. Willier: Just these pieces have been sold. It's like, that's a big area south, you know, way out, Saskatchewan, all over. That's a big country, eh? But over here, northern Alberta, look how much they made since 1899 to today's ‘99, how much land is open. Farmers opened the land way, way, that's only the piece, the smallest piece they bought for Queen Victoria, now it's way bigger, bigger, bigger. Where's that money they pay in the tax, the farmers? That's all Indian land.
Ms. Aasen: Um hmm.
Mr. Willier: Timber rights. Where's all the timber, where's all the money? You pay income tax off your land, eh? If you ask the farmer, they're paying the tax from here, how many hundreds, how many thousands they paid.
Ms. Aasen: Um hmm.
Mr. Willier: This piece of land I'm talking about, that's Indian rights with Queen Victoria, which has never been shown.
Ms. Aasen: Um hmm.
Mr. Willier: Now, these farmers, they make it bigger, bigger, every year, a little bit at a time, a little bit at a time, bigger, bigger finally now. That money belongs to the Indian people. Supposed to have an Indian cash, that tax money, but we lose it.
.......
Mr. Willier: But he said, told them they got to pay everything, school and everything, they got to pay for it. A treaty Indian, no, not supposed to pay a cent, anything at all.
Ms. Aasen: Um hmm.
Mr. Willier: Not even the tax, including the tax, treaty Indians can't pay for it. That's how come that Moostoos, Kinosayoo sign this treaty.
.......
Mr. Willier: . . . Nobody ever mentioned these, in Ottawa I don't think ever mentioned these. I don't think the federal government knows all these promises. If they've got a paper, but maybe destroy it, see, because they don't want the uneducated to know what's really promised, Queen Victoria gave to us.
Ms. Aasen: Um hmm.
Mr. Willier: That's how come they're trying to break our law, or promises, started charge us a tax and everything. [Emphasis added]
c. Trial statement
[229] Mr. Joe Willier, now more than 90 years of age, testified in Cree at the trial. Prior to the trial commencing, an agreement was reached between counsel that Ms. Pauline L'Hirondelle would be the translator for Cree speaking witnesses. However, for personal reasons, Ms. L'Hirondelle did not assist during the trial but did offer her out-of-court translation services to both the Plaintiffs and Canada. As a result, on consent and short notice, Ms. Hazel Dion Decorby translated for Mr. Willier, and a tape recorded copy of Mr. Willier's testimony was taken by the Court, which was valuable, because the quality of Ms. Decorby's translation subsequently became an issue. As a result, Ms. L'Hirondelle re-translated the evidence at trial including both Ms. Decorby's efforts at translation and Mr. Willier's evidence. It is apparent in the re-translation that Ms. Decorby's best efforts fell short of Ms. L'Hirondelle's. Thus, it was agreed that, as Exhibit 63, the re-translation would be used for the purposes of expert comment (Transcript, 20 June 2001, p.2849, L.21).
[230] In their written argument (Appendix D, pp.29-32), the Plaintiffs generally rely upon the following passages from pp.1598-1603 of the re-translation:
MS. BUSS: Mr. Willier were you told anything about tax.
HAZEL DION DECORBY: (Cree spoken) Were you ever told that you would pay something.
THE WITNESS: (Cree spoken) Never. Nothing.
HAZEL DION DECORBY: (English spoken) No. Nothing, ever.
THE WITNESS: (Cree spoken) This is something I still want to speak to.
HAZEL DION DECORBY: (English spoken) And this is the thing that I want to talk to about later.
THE WITNESS: (Cree spoken) At no time, will an Indian pay for anything that has been taxed.
HAZEL DION DECORBY: (English spoken) An Indian should never pay anything that is monetary.
THE WITNESS: (Cree spoken) Land - any land outside the community - where an Indian already owns land to which one must pay (English spoken) land taxes, (Cree spoken) the Indian shall not pay.
HAZEL DION DECORBY: (English spoken) The land that an Indian owns outside the reserve. They should never have to pay tax for it.
THE WITNESS: (Cree spoken) And that lot that he (the Indian) stays on, should be counted as Indian land.
HAZEL DION DECORBY: (English spoken) And the - the land that he owns should be crown land.
THE WITNESS: (English spoken) The lot, one lot.
HAZEL DION DECORBY: (English spoken) One lot.
THE WITNESS: (Cree spoken) This should be deemed as Indian land, therefore he (the Indian) will never have to pay for anything of it.
HAZEL DION DECORBY: (English spoken) That lot should never have to be paid taxes on it.
THE WITNESS: (Cree spoken) Many people have spent much money living on land off the reserve. Not only (English spoken) my family. (Cree spoken) They have to stay here.
(END OF TAPE)
THE COURT: (Inaudible) that extra place here.
HAZEL DION DECORBY: (English spoken) Any place in it - or. Now it's a (inaudible). Okay. The land that the Indian people owns off the reserve they should not have to pay taxes on. Even my family. The people that spent a lot of money on - on land off the reserve.
THE WITNESS: (Cree spoken) That land, more than anything else, should be deemed Indian land.
HAZEL DION DECORBY: (English spoken) It should be crown land, the lot.
THE WITNESS: (English spoken) Reserve - reserve. Some type of reserve (Cree spoken) it should be deemed as such.
HAZEL DION DECORBY: (English spoken) There should, maybe it should be counted as a little reserve.
THE WITNESS: (Cree spoken) So that the Indian should not have to pay (English spoken) taxes.
HAZEL DION DECORBY: (English spoken) That he should not have pay taxes..
THE WITNESS: (English spoken) Land taxes.
HAZEL DION DECORBY: (English spoken): Land taxes for that.
THE WITNESS: (Cree spoken) There are those people here right now today in (English spoken) in court (Cree spoken) who also pay (English spoken) taxes.
HAZEL DION DECORBY: (English spoken) And there are some Indian people in this court room right now that pay taxes.
...
HAZEL DION DECORBY: (Cree spoken) Is there anything else also that you want to say in regard to (English spoken) taxes. On this subject (Cree spoken) just like this (English spoken) taxes (Cree spoken) that are being discussed right now?
THE WITNESS: (Cree spoken) Yes, I have already spoken about everything in regard to (English spoken) about taxes that a person should not have to ever pay.
HAZEL DION DECORBY: (English spoken) This, what I'm talking about the taxes and that Indian people should not be paying taxes on anything.
THE WITNESS: (Cree spoken) I would like to add more in regard to that.
(English spoken) One more....
MS. BUSS: Mr. Willier were you ever told anything by your elders about tax?
HAZEL DION DECORBY: (Cree spoken) Did your elders, your relatives, ever tell you that you had to pay anything like this (English spoken) tax?
THE WITNESS: (Cree spoken) Never. They did not mentioned it ever and as I said my mother also never mentioned it.
HAZEL DION DECORBY: (English spoken) No one ever mentioned that, and my mother never mentioned it. Talked about it.
MS. BUSS: I don't know if I should be asking as question for a follow up question. Were you told anything about paying money to the government? (inaudible) the word.
THE COURT: That's - that's the question you propose. (Inaudible)
(inaudible)
THE COURT: Okay. Go ahead.
MS. BUSS: Were you told anything about paying money to the government Mr. Willier?
HAZEL DION DECORBY: (Cree spoken) Did they ever tell you - all of you - if you all would all have to pay the leader at the time?
THE COURT: By any of your elders? Is that what you mean? Miss Buss.
MS. BUSS: Yes, sorry. Were you told anything about your elders, about paying money to
HAZEL DION DECORBY: (Cree spoken) Were you ever..
MS BUSS: To the government.
HAZEL DION DECORBY: (Cree spoken) Told by your elders what they (the elders) had to pay to these...?
THE WITNESS: (Cree spoken) I don't believe so. I don't believe so. I had not ever heard an Elder state, every time one spoke with me, that an Indian should have to make payment for anything.
HAZEL DION DECORBY: (English spoken) No. He had never heard anything to - to statement that they would have to pay money into that or - to pay money.
THE WITNESS (Cree spoken) These were words of the (English spoken) Minister: This is what he (minister) told the chiefs that they would never have to pay for anything until the end of time.
HAZEL DION DECORBY: (English spoken) In the minister's words, that he had said that there would never be any monies - the Indian had to pay. [Emphasis added]
2. Mrs. Celeste Randhile
[231] Mrs. Randhile is a 73 year old elder from Fond du Lac in Northern Saskatchewan who learned about the Treaty from her father; her grandfather was Laurent Dzieddin, one of the headmen who was a signatory to Treaty 8 from Fond du Lac. As someone who has decided to speak up for future generations, Mrs. Randhile has shared her stories many times at meetings, and has been recognized in a book about Treaty 8 elders from Saskatchewan.
[232] In written argument (Appendix D, pp.38-40), the Plaintiffs rely upon the following passages of Mrs. Randhile's evidence:
And I just see -- not the other
side, the government's side, has basically reneged on
their promises and have tried to change a lot of the
promises, but the information that we share with you,
as well as we share amongst each other is the same
information that our grandparents shared with us on
the treaty.
Q What changes are you referring to, Mrs. Randhile,
that the government has brought to treaty?
A Main things in terms of what was promised to us. A
lot of the things they have changed already and -- so
it is just like living in two worlds, the southern
world as well as we live in the north. The
information that is shared with the southern
governments and so forth is different than what we
were being told about.
Some of the things that I have
seen changed with our people have to do with paying
things on top of what we have already bought,
taxation, these types of things. We now have to
start -- we now have to pay more for things because
we are being taxed on different things, and these are
changes that I see -- I've seen in my lifetime that
are broken promises (Transcript, 22 May 2001, pp.1514-1515).
...
But in our language, the Dene
language, we have no comparable words for taxation in
terms of what it means and so forth. It is basically
an interpretation in terms of a statement basically
meaning that the government takes that bit of money
for themselves that we have to pay, and so we pay a
little more. That's the way I understand taxation to
mean (Transcript, 22 May 2001, p.1526).
...
MS. BUSS: My question was going to be,
What was told to Mrs. Randhile about paying money to
the government in the way that she described tax.
THE WITNESS: What I was told in this case
here was that -- that we would not have to pay for
anything,and that the government would basically
provide the Dene with a better way of life than they
enjoyed before treaty, and that the treaty promise
was basically to ensure that they would be able to
live their way of life, but to do it in a more
comfortable way, and that they would not have to pay
for anything. That the promise was that -- that all
of these would be provided for the Dene at no extra
cost to them (Transcript, 22 May 2001, pp.1528-1529).
[Emphasis added]
3. Mr. Francois Paulette
[233] In written argument (Appendix D, pp.40-43), the Plaintiffs draw from the trial record with respect to the evidence of oral tradition offered by Mr. Paulette as follows:
Mr. Paulette is a member of the Smith's Landing First Nation. He served as chief in the 1970's. He was also vice chief of the Dene Nation. His band members lived primarily in Fort Smith. They were moved there by Indian Affairs in the 1950's and 60's. Living conditions were poor. The level of education was low - possibly between grades 4 and 6 in the 1970's.
There are only two reserves in the Northwest Territories; Mr. Paulette's indicated that the Federal government had a policy against reserve creation north of the 60th parallel. Thus, the majority of the Indian people of Treaty 8 in what is now the Northwest Territories with whom the Commissioners treated have not received reserves.
Mr. Paulette's grandfather Johnny Paulette was at the signing of treaty in Fort Smith in 1899, although he did not take treaty that year. Mr. Paulette learned about the treaty from his father.
On the question of taxation, he described his father as saying:
And there was -- because we
trap in the Wood Buffalo National Park, the parks had
this policy, I do not know if it was a written
policy, but it had a policy if the Indians took fur
from their trap line in Wood Buffalo National Park,
you would establish a royalty, a 5 percent of -- it
would take -- if your fur was $100, then they would
take $5 from that. I remember my father, I think
that is where the anger came from because he didn't
care for that.
He said (Dene spoken)
Q You are going to have to translate that into English.
A Meaning when we first made treaty, he said they would
not take back the money. They would not take back
the money.
His expression was he was
describing this royalty, and that is an expression
that we have today for tax. So "beke nani" -
(phonetic) -- they shall take back the money.
So, he would be very angry
about that (Transcript, May 17 2001, pp.1388-1389).
Francois Paulette testified about the meaning of tax in Dene. He said:
Q You mentioned that the concept of tax is communicated
in Chipewyan language by a literal translation of
"taking money back." Is there any other way that it
can be communicated in the Chipewyan language?
A The way it is described in our language -- (Dene
spoken) -- when you take something back. And when
you take something, in this instance, samba -- (Dene
spoken) (phonetic) -- which means money. But in
traditional form -- (Dene spoken) -- when you take
something back, that is unspoken of, you don't take
something back. When you give something, you don't
take it back.
So, when we say -- (Dene
spoken) -- when you take the money back, and they say
you give it to "Tsekuitakoldher" meaning the Queen.
1399
We will give the money to the Queen. And my father
and other people describing this, it is kind of, Why
did the Queen give us money, and then she takes it
back? (Transcript, 17 May 2001, pp.1398-1399).
Mr Paulette also received information about the treaty from Suzie King, grandchild of the King family who acted as translators at Fort Resolution in 1900, and from Joe Charlo - a descendant of Suzie Drygeese who was also at the 1900 adhesion.
[234] Mr. Paulette did not identify himself as an elder. However, he explained the close link he had with the oral history surrounding Treaty 8:
That would be a very direct - be a very direct contact with the treaties like my father was. My father was a direct linkage to the treaty. So, the history flows through our family like the blood that flows through us.
We have inherited that. It is like a leadership. Like my father, my grandfather, his father before him were all leaders. So all of the things that would flow through the leadership would go with that. And this instant, the treaty that is - that I am close to is still there.
It is like - it is like in our understanding of any other thing in our history, like, for instance, medicine. I will take medicine. If you wanted to go acquire medicine, Indian medicine, you would go to elders. And if this young man is asking for medicine, he wants to practice Indian medicine, he would go to his elders and say, I want to possess this medicine.
The elders will look at his history on his father's side as far back as they can go, and on their mother's side as far back as they can go whether the family were involved in medicine.
If that family possessed medicine on both sides, it is a good chance that this guy would get that medicine. If he didn't, it stop there. That's how strict they were. In the same way history - oral history is carried down in that way. So in my family, as I said yesterday, I am very fortunate, very fortunate to be so close to that history of the treaties (Transcript, 17 May 2001, pp.1440-1441).
He also stated that there were no elders in his First Nation who hold oral history regarding Treaty 8:
Not presently. I may be getting to be the elder that is going to be maybe the last one - direct contact with the treaties. There is not - there is not an elder right now that has a detailed - or the knowledge of treaties that I may possess.
Q: So you are the nearest substitute as an elder, is that what you are saying?
A: Not substitute. I am a direct descendant of my father that was a chief, and his father was a direct descendant of a person that was at the treaty.
Q: Does your community consider you an elder?
A: No, I wish. Maybe in 20 years (Transcript, 17 May 2001, p.1429).
[235] Alberta argues that Mr. Paulette's "qualifications by which to give oral history were not established and his evidence concerning his understanding of Treaty 8 should be regarded as either the hearsay of others or his own personal views" (Sur-rebuttal Argument, p.18).
[236] With respect to Alberta's objection, the test laid down by the Chief Justice in Mitchell for the reception of oral history at paragraph 30 is worth repeating:
First, the evidence must be useful in the sense of tending to prove a fact relevant to the issues in the case. Second, the evidence must be reasonably reliable; unreliable evidence may hinder the search for the truth more than help it. Third, even useful and reasonably reliable evidence may be excluded in the discretion of the trial judge if its probative value is overshadowed by its potential for prejudice.
[237] In addition, the Chief Justice's comment at paragraph 33 is important:
The second factor that must be considered in determining the admissibility of evidence in aboriginal cases is reliability: does the witness represent a reasonably reliable source of the particular people's history? The trial judge need not go so far as to find a special guarantee of reliability. However, inquiries as to the witness's ability to know and testify to orally transmitted aboriginal traditions and history may be appropriate both on the question of admissibility and the weight to be assigned the evidence if admitted. [Emphasis added]
[238] Usefulness and reliability are findings of fact to be made on the basis of evidence presented. As just cited, certain people are identified by the Aboriginal community as meeting essentially this same standard. Barring any evidence to the contrary, I think it is reasonable to find that, if Aboriginal People believe that its community standard has been met by a certain person, the legal test for the admission of the evidence of oral tradition by that person is also met.
[239] In the case of Mr. Paulette as a potential giver of evidence of oral tradition, the evidence is that he does not meet his own community's standard because he is not senior enough to be considered an elder. Nevertheless, in my opinion, Mr. Paulette's evidence of oral tradition may still be admitted if the legal test is met on other evidence presented at trial. In the present case, Mr. Paulette himself presents the evidence for the admission of his evidence.
[240] I am impressed by Mr. Paulette's knowledge of Dene oral tradition, and his serious dedication to maintaining it. On the basis of his statements, I find Mr. Paulette clearly has important useful evidence of oral tradition to offer because he is one of the few People remaining who has it. I am also satisfied that on the basis of his credible conduct at trial and on the rich content of his evidence, he meets the test of a reasonably reliable source of Dene oral tradition. In my opinion there is no prejudice to either Alberta or Canada by allowing him to testify to the oral tradition he knows so well, and, accordingly, I find that his evidence of oral tradition is admissible.
[241] The weight to be accorded to the evidence of oral tradition is addressed below.
D. The TARR transcripts
[242] A number of transcripts of elder oral history and tradition evidence produced from the TARR project were submitted as evidence by the Plaintiffs and Alberta; the Plaintiffs submitted only 14 transcripts (Exhibit 34) out of approximately 200 produced by the project; as a result, to somewhat complete the record, Alberta submitted 103 (Exhibit 35). The project was undertaken in the early 1970's and continued into the 1980's under the management of The Indian Association of Alberta, which according to the testimony of Professor Price, a Director of the project, was "the key treaty Indian organization in Alberta" at the time (Transcript, 15 May 2001, p.1130). Dr. Price testified that TARR was "focussed primarily on looking at the treaties in Alberta and to try to develop an Indian understanding of those treaties" (Transcript, 15 May 2001, p.1134).
[243] In the project, interviewers were sent to Aboriginal communities to interview elders. As Professor Price phrased it:
one of the overriding concerns that they had at the time was they saw many Indian elders that were in their sixties, seventies, and eighties, and they wanted to record and have preserved for all time their understandings of the treaty. This was a tremendous, kind of overriding concern that they had to document through taped interviews, the understandings of the elders and the treaty (Transcript, 15 May 2001, p.1137-38).
...
you are not only preserving their knowledge, but you are trying to, kind of, really understand what memories did they have of these events of the past century? Why did they agree to the treaties and so on? What was important for them?"(Transcript, 15 May 2001, p.1139).
[244] The topics of the interviews were quite broad-based. Professor Price described the research questions as follows:
there were issues there of what was discussed about land at the treaty? What was discussed about hunting, fishing and trapping? How did teachers in schools fit into the picture?
In terms of just one area, hunting, fishing, trapping and gathering, how do those traditional livelihoods - how were they preserved? And then also a question of, Well, at the time, was there a transition to a new form of livelihood discussed at the treaties? Where did issues like medicine come up?
And so, you know, these were the main subjects.
This was a huge decision of the chiefs in the last - in the 19th century in terms of sharing their land and then getting certain promises in return. So you know, a lot of it was focussed on what were some of those promises, and why were they important? In a sense, why was there agreement? (Transcript, 15 May 2001, p.1139-40).
Mr. Lightning concurred that "the areas of concern were the treaty rights, of course, in the Treaty 8 area, land entitlement, hunting, fishing, trapping, that type of thing" (Transcript, 16 May 2001, p. 1189).
[245] Mr. James Gordon Badger, member of the Sucker Creek Indian Band and great great grandson of Moostoos who was a headmen who signed Treaty 8, noted elders hold specific types of information, not all of which relates to the Treaty. Speaking to the issue of which elders were chosen contribute to the TARR project, Mr. Badger stated:
Now, keep in mind that the elders are very held in high regard in -- well, in Lesser Slave Lake. I'm sure in all communities. They are also -- because of the, I guess, this information, it was of a very highly confidential nature, and also the -- I don't know how to word this -- there is a certain respect we have for elders that have this certain information.
And have you to realize that not all elders, I guess, participate. There are certain ones that have certain duties, you know. It is not everybody that knows all this information. It is not -- there are some that are more aware of the issues in terms of treaty rights, the histories, and it is not -- it is not just a given thing everybody knows (Transcript, 15 May 2001, p.1005).
[246] The process of interviewing changed over the time of the project. Professor Price outlined the initial difficulties:
We didn't want the interviewers, obviously, to tell the interviewee what the answer was in the question.
I would say that over time we noticed some of the problems with the earlier interviews in the program done by some of the people who are already elders.
....
Well, we noticed that some of the early interviews done in 1972, for example, were - you know, you had some elders saying, for example, Well, we - we want to talk to you about the promises.
Now, you remember about hospitalization and medicare and these other promises. And so in a sense, the elder being asked the question was already given the answer in the interviewer's question.
And so we found out a problem, and over time we were able to - certainly as I recall in terms of my own directorship, we were able to have some of these older people step back from the interviewing process in a graceful way, because they were often political leaders on the board or whatever, and we brought in younger researchers who could - who, perhaps, had more deference to the elders in some ways and also were - were more amenable to asking questions where they were quite open questions so the interviewer - the interviewee, the elder could respond, sharing his knowledge and expand.
We were trying to improve the quality of those interviews over time, and I think we did (Transcript, 15 May 2001, p.1141-42).
Professor Price described the interviewing process as follows:
And the interviews were like - the interviewers were also having a conversation with respect to elders, so it isn't the type of interview that you have a little questionnaire on here, so okay, Here is Question 1, Mr. Willier, and here is Question 2, and so on.
It was a type of conversation together so that the interviewer had to also think on his feet, Well, this elder has something to say about that. I will pursue that a little bit, if you get what I mean. It wasn't, kind of, a standardized questionnaire that you would send around and get them to fill out or whatever (Transcript, 15 May 2001, p. 1140).
[247] Mr. Lightning had the following to say about the interview process:
Initially, this - yes, we were initially given questionnaires to use, but questionnaires didn't work out, because they are - they are rigid in the sense, and you have be - what I found is you have to flexible in talking to - especially the elders.
You have to, I guess I would say, use common sense, because some of the questionnaires that came out didn't relate to the matters that we were to talk about.
For me it was a guideline to use. At first, I guess, maybe when I first went out, I would have used the questionnaire, but then I quickly realized it wasn't going to work the way it was - the questions were set out. And from there we just kind of used it as a guide and asked the questions that were relevant to the topics (Transcript, 16 May 2001, p. 1189-90).
[248] Interviewers were sent out on the basis of direction from the Indian Association of Alberta, and most especially its leader Mr. Harold Cardinal, but, also from elder's think-tanks. As Mr. Price testified:
primarily, I would get direction from Harold Cardinal as to who should be interviewed. And I am sure that he in turn was asking some of the chiefs and some of the leaders from their own communities - from the communities who were the good people who were knowledgeable? And then he would pass that on to us." (Transcript, 15 May 2001, p. 1144-45).
Mr. Lightning concurred with this assessment (Transcript, 15 May 2001, p.1191).
[249] Of the transcripts produced in the project, after re-translation of the 13 submitted by the Plaintiffs, the Plaintiffs submit only two which make any mention of tax. Mr. Jean Marie Mustus was initially interviewed on November 19, 1972, and in the re-translation of this interview from Cree to English by Mr. Lightning in 2001, Mr. Mustus said he got the following information from his grandfather Moostoos, the headman present during the Treaty negotiations:
He promised me many things, a school, hospital and medical bills we were never to have paid for and also we were never to pay tax. That part is all right because the women were getting treaty as well as the children (Exhibit 34, Tab 2a).
[250] In a second interview conducted on March 26, 1975, the question and answer exchange between Mr. Mustus and Mr. Lightning, the interviewer, went as follows:
Richard Lightning:
Did you hear of what was promised in education and medical care for the Indians?
Jean Marie Mustus:
We don't pay for medicines in the hospital. I don't pay for anything.
Richard Lightning:
But did your grandfather ever talk of such a thing?
Jean Marie Mustus:
He told me that hospitalization was not to be paid by Indians and also taxes, including land taxes. They still don't pay for these, the children still don't pay for education and hospitalization. The only thing we pay in taxes is on food but the Indians shouldn't mind that because the women receive Family Allowance and the old people receive Pension (Exhibit 34, Tab 9a).
[251] During the course of the hearing, counsel for the Plaintiffs filed electronic copies of the interviews in the form of tapes and compact disks containing the 13 interviews submitted as Exhibit 34. Counsel for Canada had the second Mustus interview retranslated by Ms. L'Hirondelle, resulting in the following somewhat more expansive interpretation:
Richard Lightning:
Did he ever tell you about any promises about education of medicine or anything like that?
Mr. Mustus:
Medicine--that is medicine, while in the hospital, we did not pay for, I never paid for that. I myself never paid for that.
Richard Lightning:
Bur your grandfather, did he ever relate anything to you about these things?
Mr. Mustus
Yes, he spoke of these. There are still two things about that. And the land - land. A person was never made to pay for anything concerning the hospital. "And that which was being paid," he use to say, "should not be paid." That is tax. "Nor should you pay tax for land." They still don't pay that for the land. The hospital and school, they should not pay for our children there. They still don't pay for that where they go to school. Nothing is said of that, when they go to school. In terms of food stuff, and for all that you buy, where there is an additional charge - or tax, that you pay, that is the same for the Indian. They don't have to think nothing of this as they are Indian as they are given. That is, women are given Family allowance. They receive those checks frequently. "For those Indians who are to be provided for," he said, "as they get older will receive more money. This is being account for (Exhibit 98).
[252] Mr. Lightning was called by the Plaintiffs in rebuttal to explain the difference between his translation in Exhibit 9a and that of Ms. L'Hirondelle in Exhibit 98. In this respect, Mr. Lightning said:
Q Now, I want to ask you about the translation of the T.A.R.R. interviews. When you translated the T.A.R.R. interviews, as you have described -- translated and transcribed -- in the '70s, and again, when you did the retranslation last spring, what was your goal? What were you trying to achieve?
A To transcribe the information which I obtained from the interview, from the elder, to try and transcribe the information in the most concise way that would be able to be appreciated or understood clearly by a reader --
Q And this would be an English-speaking reader?
A English-speaking reader. Well, you would have probably different age levels of readers looking at this information, so you -- you'd have to try and get the information correctly as much as possible (Transcript, 1 November 2001, p.5057).
He further expands on this later in his testimony:
Q Now, how do you deal with repetition when you are doing a translation?
A Repetition -- well, you can have -- you can do a literal translation, and you will -- and you can do a contextual translation. If you're doing a literal translation, you are going to end up with many words that doesn't convey a meaning. It's just repeating what -- about repetition.
Where in my case, if I've heard the interview, and I'm transcribing, if there's a lot of repetition, it doesn't add anything to what's being said.
So in that way, I would just try and -- I would write what I think in my mind is going to come out clearly and precisely to the reader without using repetitious words that say nothing (Transcript, 1 November 2001, pp.5059-5060).
E. Admissibility of the TARR transcripts
[253] In its written argument, the Plaintiffs argue that the TARR transcripts are admissible as inherently reliable ancient documents, and, thus, are admissible in evidence as an exception to the hearsay rule which is as follows:
Written or oral statements, or communicative conduct made by persons otherwise than in testimony at the proceeding in which it is offered, are inadmissible, if such statements or conduct are tendered either as proof of their truth or as proof of assertions implicit therein (Sopinka et al., The Law of Evidence in Canada, 2nd ed., 173).
[254] In response, Canada contests the admissibility of the TARR transcripts on the argument that they are not, in and of themselves, evidence of anything more than the translation done by a particular person from a native language into English. I disagree with this submission.
[255] By the traditional Anglo-Canadian model of evidence, indeed, the transcripts are hearsay because these out of court statements of the elders who gave the TARR interviews are being tendered as proof of truth of their contents, being what was said during Treaty 8 negotiations.
[256] Having regard to the statement of Chief Justice McLachlin in Mitchell as quoted at the beginning of this Section of these reasons, the question is whether any TARR transcript is useful, reasonably reliable, and its probative value is not overshadowed by its potential for prejudice.
[257] Oral tradition evidence is most often tendered in the form of oral testimony at trial. This form recognizes the unique way in which Aboriginal People have kept their history: it has been passed down orally through generations and has been kept by the elders.
[258] In the present case, the TARR transcripts are a variation on this method. They are, essentially, a hybrid of Aboriginal and Anglo-Canadian methods of recording history. The elders interviewed by the TARR interviewers held oral tradition in the same way as Aboriginal elders had since time immemorial. However, when the TARR project recorded their oral histories and oral traditions, they altered their form; now to become a written account done according to Anglo-Canadian methods of recording, which involved tapes, transcription, writing, and publication.
[259] The TARR transcripts were taken in a context of real concern that the oral history and tradition evidence might be lost. Aboriginal culture is changing, and has changed. As noted above by Professor Price, there has been concern that the elders are dying without passing on the oral tradition. In my opinion, taking the flexible approach advocated in Mitchell, this reality has a bearing on their admissibility.
[260] In my opinion, the TARR transcripts are clearly useful, in the sense the term is explained in Mitchell. The transcripts were gathered specifically with the goal of recording elders_ remembrances of Treaty negotiations. Since that is what the dispute in the present case is about, the TARR transcripts certainly go to proving a fact relevant to the issues in the case, namely whether there was a promise of tax exemption made at the time of the Treaty negotiations. More specifically, and also in line with Mitchell, these accounts provide the Aboriginal perspective on the rights claimed: they are the Aboriginal account of the negotiations and reflect the Aboriginal understanding of what was promised to Aboriginal People under Treaty 8.
[261] While the TARR transcripts are not oral testimony as it would normally be given at trial by live witnesses, it is important to understand and appreciate the difficulties Aboriginal claimants face. The events in question occurred slightly more than 100 years ago; all witnesses are now dead. However, some witnesses to the Treaty negotiations, and some whom the original witnesses had talked to, were able to tell their stories to the TARR interviewers and, thus, preserve their stories in written form. In many ways this is similar to the Commissioners_ Report and other historical documents tendered in evidence. In the present case, because of the nature of Aboriginal oral tradition, Aboriginal accounts were not committed to writing at the time at the time of Treaty; the importance of written accounts did not become apparent until much later.
[262] As the elders who gave their statements in the TARR project are no longer living, and, thus, there is no one to question on the truth of the contents of a transcript, a concern arises with respect to the reliability of the statements recorded.
[263] In Delgamuukw the Supreme Court of Canada discusses a situation similar to that which is faced with respect to the TARR transcripts. There, territorial affidavits were submitted by the Chiefs to prove their land claims: _Those affidavits were declarations of the territorial holdings of each of the Gitksan and Wet'suwet'en Houses and, at trial, were introduced for the purposes of establishing each House's ownership of its specific territory_ (paragraph 102). As Chief Justice Lamer recognized at paragraphs 103 to 106:
The affidavits rely heavily on the declarations of deceased persons of use or ownership of the lands, which are a form of oral history. But those declarations are a kind of hearsay and the appellants therefore argued that the affidavits should be admitted through the reputation exception to the hearsay rule. Although he recognized, at p. 438, that the territorial affidavits were "the best evidence [the appellants] could adduce on this question of internal boundaries", the trial judge held that this exception did not apply and refused to admit the declarations contained in the affidavits.
I am concerned by the specific reasons the trial judge gave for refusing to apply the reputation exception. He questioned the degree to which the declarations amounted to a reputation because they were largely confined to the appellants' communities. The trial judge asserted that neighbouring aboriginal groups whose territorial claims conflicted with those of the appellants, as well as non-aboriginals who potentially possessed a legal interest in the claimed territory, were unaware of the content of the alleged reputation at all. Furthermore, the trial judge reasoned that since the subject-matter of the affidavits was disputed, its reliability was doubtful. Finally, the trial judge questioned, at p. 441, "the independence and objectivity" of the information contained in the affidavits, because the appellants and their ancestors (at p. 440) "have been actively discussing land claims for many years".
Although he regretted this finding, the trial judge felt bound to apply the rules of evidence because it did not appear to him (at p. 442) "that the Supreme Court of Canada has decided that the ordinary rules of evidence do not apply to this kind of case". The trial judge arrived at this conclusion, however, without the benefit of Van der Peet, where I held that the ordinary rules of evidence must be approached and adapted in light of the evidentiary difficulties inherent in adjudicating aboriginal claims.
Many of the reasons relied on by the trial judge for excluding the evidence contained in the territorial affidavits are problematic because they run against this fundamental principle. The requirement that a reputation be known in the general community, for example, ignores the fact that oral histories, as noted by the Royal Commission on Aboriginal Peoples, generally relate to particular locations, and refer to particular families and communities and may, as a result, be unknown outside of that community, even to other aboriginal nations. Excluding the territorial affidavits because the claims to which they relate are disputed does not acknowledge that claims to aboriginal rights, and aboriginal title in particular, are almost always disputed and contested. Indeed, if those claims were uncontroversial, there would be no need to bring them to the courts for resolution. Casting doubt on the reliability of the territorial affidavits because land claims had been actively discussed for many years also fails to take account of the special context surrounding aboriginal claims, in two ways. First, those claims have been discussed for so long because of British Columbia's persistent refusal to acknowledge the existence of aboriginal title in that province until relatively recently, largely as a direct result of the decision of this Court in Calder, supra. It would be perverse, to say the least, to use the refusal of the province to acknowledge the rights of its aboriginal inhabitants as a reason for excluding evidence which may prove the existence of those rights. Second, this rationale for exclusion places aboriginal claimants whose societies record their past through oral history in a grave dilemma. In order for the oral history of a community to amount to a form of reputation, and to be admissible in court, it must remain alive through the discussions of members of that community; those discussions are the very basis of that reputation. But if those histories are discussed too much, and too close to the date of litigation, they may be discounted as being suspect, and may be held to be inadmissible. The net effect may be that a society with such an oral tradition would never be able to establish a historical claim through the use of oral history in court. [Emphasis added]
It should be noted that these affidavits were found admissible in spite of the fact that there were, presumably, other elders still alive in the Aboriginal communities in question.
[264] While the TARR transcripts in the present case are not sworn affidavits, we must still be appreciative of the special nature of Aboriginal claims and the difficulties inherent in a society which transmits its history orally. In addition, the reality that there are few people remaining who can provide the oral tradition evidence must be taken into consideration. I think that judicial notice can be taken of the fact that a great deal of Aboriginal heritage was lost through the residential school experience, and, thus, it seems that an impossible burden is placed on the Plaintiffs in the present case to produce evidence of what transpired 100 years ago without the admission of the TARR transcripts as useful evidence.
[265] With respect to reliability of the TARR transcripts, much has been argued. Canada makes the following assertions in an effort to impugn the reliability of the transcripts:
1. As the electronic copies of the elders' interviews are the property of the Indian Association of Alberta and, thus, are not publicly archived, Canada is prejudiced in the trial of this action by not having the independent ability to research and assess the reliability of product of the project.
2. As the electronic copies and a recent re-translation of the 13 transcripts relied upon by the Plaintiffs were only produced by the Plaintiffs at trial, Canada is prejudiced by not having time to have this set translated again in order to confirm the reliability of the re-translation supplied by the Plaintiffs.
3. Canada is prejudiced by the unwillingness of competent native translators to provide it with service.
4. On the basis of an expert forensic analysis of the electronic copies filed showing numerous transient signals associated with stop and start marks, there is a doubt as to whether the copies contain all the conversation between the interviewer and interviewee, and, thus, a reliability doubt arises.
5. The interviews were conducted in a political climate by a political organization, and, not being the subject of any objective tests of either accuracy or reliability, are suspect.
[266] Alberta argues that the TARR project represents a somewhat less than reliable oral history; the individuals who conducted the interviews were not trained in proper interview techniques; the project was politically motivated and the interviewers were Treaty 8 or Treaty 6 Indians, rather than independent researchers; in some instances, elders were interviewed by other elders; and the re-translations of the 13 interviews by the Plaintiffs demonstrated that the original translations were not entirely accurate.
[267] These objections raised by Canada and Alberta can be satisfied by a finding of relevance. I find that the only TARR transcript relevant to the Plaintiff's claim of a tax exemption promise is that of Mr. Jean Marie Mustus.
[268] Mr. Mustus was first interviewed in 1972, again in 1975. While Mr. Lightning did not originally conduct or transcribe the first interview, he did do both tasks with the second, and, in addition, did a re-translation of both in preparation for trial, resulting in Exhibit 34, Tab 2a and 9a, as quoted above. As quoted above, despite initial problems finding a Cree translator to work on its behalf, Canada did have Exhibit 34, Tab 9a independently re-translated by Ms. L'Hirondelle.
[269] In the course of the trial, Mr. Lightning twice gave evidence, and was cross-examined, to prove the reliability of the work he did. I found him to be thoroughly credible and capable as a Cree translator; he carefully and capably explained how he conducted his interviews and managed the recording equipment. I have absolutely no concerns about his professionalism, honesty, and independence in taking and transcribing the interviews under consideration.
[270] I find Mr. Lightning credible in his explanation of how a difference arises between his re-translation of Mr. Mustus's 1975 interview and that of Ms. L' Hirondelle. Giving evidence in rebuttal, Mr. Lightning explained that Ms. L' Hirondelle's translation is literal, while his is contextual. Mr. Lightning explained that his goal in transcribing an interview was to do so in the most concise way so that its content would be appreciated by an English speaking reader; being present at the interview is important in the ability to transcribe because hand gestures, tone of voice, and repetition show emphasis which is important; and elders use a lot of repetition which does not add to what is being said.
[271] That is, Mr. Lightning's objective was to document the oral history, which was not done to court reporting standards. There is no doubt that if this contextual approach is followed, that to have any specific statement, such as a tax promise, to be found reliable, it would have to be accurately recorded. In fact, by comparing Mr. Lightning's re-translation in Exhibit 34, Tab 9a, and that subsequently done by Ms. L'Hirondelle, it is obvious that the mention of tax is similarly reported in each.
[272] However, to satisfy Canada's concern, I will consider only Ms. L'Hirondelle's translation as admissible and reliable evidence of oral history coming from Mr. Mustus.
F. Expert opinion regarding weight to be accorded to the evidence of oral tradition
[273] Both Canada and Alberta argue that there is insufficient evidence to prove on a balance of probabilities that the Commissioners made a tax exemption promise. On the basis of proof that the Commissioners did not intend to make such a promise by the words they spoke, I have found that such a promise was, in fact, not made. However, in my opinion, the issue of fact which still requires to be addressed is: did the Aboriginal People in 1899 believe that a tax exemption promise was made?
[274] As is required with a tax exemption promise, I find that a belief a tax exemption promise was made is also required to be proved on a balance of probabilities.
[275] Clearly, the most cogent evidence respecting the Aboriginal belief is the evidence of oral tradition. Both Canada and Alberta argue that, on a balance of probabilities, this evidence does not even prove this fact.
[276] There is no suggestion in this case that Mr. Willier, Mrs. Randhile, Mr. Paulette, and, posthumously, Mr. Mustus, who have each offered evidence of oral tradition, are not being truthful. That is, I have no reason not to accept that they each truly believe what they have said. Thus, their credibility is not in issue. However, there is ample suggestion that their state of mind, being a belief that a tax exemption promise was made, comes from some source other than the root of oral history, that is, the witness to the promise him or herself. Thus, the accuracy of their evidence is certainly in issue.
[277] Neither Canada nor Alberta accept the accuracy of the evidence of oral tradition. In challenging it, both made a strategic choice on how to confront it. In the course of the trial, both Canada and Alberta did not challenge on the question of belief in any meaningful way in the cross-examination of either Mr. Willier, Mrs. Randhile, or Mr. Paulette, or indeed, any of the other Aboriginal witnesses who spoke of the oral tradition.
[278] The Plaintiffs are critical of this fact, but as pointed out by Alberta, as a matter of law, if a witness's credibility is to be impeached, he or she must be given advance notice of this intention, but this being done, there is no requirement that the impeachment be by cross-examination (see: DeGeer v. Canada, 2001 FCA 152). There is no question that notice was given, and even though in the present case the challenge is with respect to the accuracy of the evidence of oral tradition, and not the credibility of the witness giving it, the principle still applies.
[279] Instead of challenging by cross examination, both Canada and Alberta have relied on other evidence in the trial, including expert evidence, to attempt to contradict the accuracy of, and otherwise to reduce the weight that should be given to, the substance of the evidence of oral tradition.
1. Dr. von Gernet's opinion
[280] Dr. von Gernet's opinion evidence is produced by Alberta to diminish the weight that can be attached to the evidence of oral tradition. In his opinion report, Dr. von Gernet spends most of his effort in attacking Ms. Aasen's opinion that the evidence supports the conclusion that a tax exemption promise was made.
[281] As a result of evaluating evidence of oral tradition tendered in the trial, Ms. Aasen gave the opinion that a tax exemption promise was made by the Commissioners. Since this opinion is based on the assumption that the Commissioners would have intended to do so, and since I have found that this is not a proven fact, I can give no weight to the opinion offered. Therefore, Dr. von Gernet's precise attack on Ms. Aasen's opinion is unnecessary to consider. However, Dr. von Gernet raises other important issues which need to be addressed.
[282] Dr. von Gernet views the subject of evidence of oral tradition with an exceedingly critical eye. The following passages from his report demonstrate the standard which he believes should be adopted when evaluating evidence of oral tradition:
In my opinion, the most useful approach recognizes the legitimacy of self-representation and acknowledges that what people believe about their own past must be respected and receive serious historical consideration. At the same time, it assumes that there was a real past independent of what people presently believe it to be, and that valuable information about that past may be derived from various sources including oral histories and oral traditions. It accepts that both non-Aboriginal and Aboriginal scholars can be biased, that various pasts can be invented or used for political reasons, and that a completely value-free history is an impossible ideal. Nevertheless, it postulates that the past constrains the way in which modern interpreters can manipulate it for various purposes. While the actual past is beyond retrieval, this must remain the aim. The reconstruction that results may not have a privileged claim on universal "truth," but it will have the advantage of being rigorous. The approach rejects the fashionable notion that, because Aboriginal oral documents are not Western, they cannot be assessed using Western methods and should be allowed to escape the type of scrutiny given to other forms of evidence. Ultimately, the perspective is in accord with the belief of the highly-regarded anthropologist Bruce Trigger: public wrongs cannot be atoned by abandoning scientific standards in the historical study of relations between Aboriginal and non-Aboriginal peoples. Those who marshal Aboriginal oral histories and traditions and submit them as evidence about past events have at least one major hurdle to overcome--how to convince skeptics that documents generated in the present contain accurate information about the past (p.6).
...
In other words, the value of orally communicated history does not always lie in its factual accuracy. What people believe to be true is just as important as what actually happened since it can provide valuable insights into the significance of history. Even erroneous, misguided or deliberately misleading accounts may in their very errors provoke understanding. Furthermore, it is important to understand why people in the past acted as they did. Since people usually act in accordance with what they believe, scholars must try to understand each culture on its own terms and see what its members imagine reality to be. Nevertheless, when it comes to historical inquiry in Aboriginal litigations, it is important to at least try to distinguish between what people believe might have happened and what on the weight of combined evidence may actually have happened (pp. 9-10).
...
The question is, perhaps, not so much whether an oral document is accurate about an actual past, but whether it is in accord with independent evidence. Some have suggested a distinction between reliability and validity, with the former referring to internal consistency and the latter referring to the degree of conformity between an oral account and other primary sources such as written documents or archaeological evidence. Irrespective of how the question is formulated, debates about the facticity, historicity, accuracy, reliability or validity of oral documents mirror the tension between historical objectivism and postmodernism, reflect divergent views about whether such documents are about the past or the present, and sometimes pit members of different scholarly disciplines against one another. In other words, the numerous opinions fall along a continuum (p.11).
...
All memory is selective and its structure is related to perception which itself is rooted in culture and social relations. It has become clear that memories are reconstructions coloured by succeeding events and that humans reshape, omit, distort, combine and reorganize details about the past. As people change the way they think about the world, they automatically update memories to reflect their new thinking. New inputs force reappraisals and gaps are unconsciously smoothed over or filled with inferences about what must have happened. In this way, remembered facts are supplemented with constructed facts to produce a version of the past....There is, however, nothing inherent in orality that fosters accurate transmission of information and no evidence to suggest that Aboriginal people are blessed with a genetic or cultural immunity from the forgetfulness that plagues the rest of the human species. ...All evidence points to the fact that Aboriginal people, like all other humans, are susceptible to a phenomenon well known in memory research: retroactive interference(pp.13-14).
...
It is clear that for many Aboriginal people preserving history involves not only passing information orally to one another, but also temporarily freezing oral documents by writing them down so that they can be used to advance alternative pasts in contemporary political discourse and in courtrooms across the nation. Once reduced to writing and tendered as evidence, there is no compelling reason why the traditions should not be subjected to the same type of scrutiny as is commonplace in the study of any other written document....Once the oral traditions are tendered as evidence in support of a reconstruction of what actually happened in the past, not subjecting them to rigorous analysis will only lead to an unacceptable double standard (pp.21-22). [Emphasis added]
[283] I accept Dr. von Gernet's opinion that the memory of all witnesses might not accurately recall what was actually heard or seen. I agree that there should not be a double standard invoked in evaluating evidence of oral tradition; that is, according to the concept mentioned in Mitchell, evidence of oral tradition should be placed on an "equal footing" with other forms of evidence.
[284] However, I caution that, in a trial, a witness is not to be judged by a sceptic, but by a person willing to believe that a witness is telling the truth, and to maintain this belief until some important definable reason is found for not doing so. This legal principle is enunciated in Maldonado v. Minister of Employment and Immigration [1980] 2 F.C. 302 at paragraph 5:
It is my opinion that the Board acted arbitrarily in choosing without valid reasons, to doubt the applicant's credibility concerning the sworn statements made by him ...When an applicant swears to the truth of certain allegations, this creates a presumption that those allegations are true unless there be reason to doubt their truthfulness.
[285] Thus, I find that, if an Aboriginal person is considered qualified to give evidence of oral tradition, that person is entitled to have weight accorded to his or her evidence unless some certain reason exists for not doing so. In the present case this finding applies to Mr. Willier, Mrs. Randhile, Mr. Paulette, and Mr. Mustus.
[286] Dr. von Gernet holds a very low opinion of the TARR project:
It must be pointed out that T.A.R.R. was one of the worst projects of its kind anywhere in North America and stands out as an excellent example of how not to conduct an interview with Elders program. In a telling admission, organizers casually suggested that the rigorous methods and critical approach advocated in a standard reference work on oral traditions "may not even be applicable to our interviews." The interviewers were untrained, incompetent and in some instances exhibited outrageous bias. (p.28)
[287] The rigorous standard for conducting interviews advanced by Dr. von Gernet which is at the base of his criticism of TARR is contained in his "Handbook for Creating a Record of Aboriginal Oral Histories and Traditions" prepared for Indian and Northern Affairs, Canada (Exhibit 102(b)). For example, Dr. von Gernet argues that, in obtaining elders' evidence of oral tradition for some specific Aboriginal research purpose, to ensure the objectivity of the process: an "outside independent" should be contracted to conduct interviews (p.13); the independent should not be familiar with any written documents or the legal or political positions relating to the purpose of the research (p.14); posted notices to elders who might be interviewed should not include any reference to purpose of the research, being to investigate an Aboriginal claim (p.16); and the elders being interviewed must submit to having the interviews taped for wide public research purposes (pp.18 and 30).
[288] All I can say on the evidence in the trial is that it would be surprising if Dr. von Gernet's suggestions can be realistically followed. From Mr. Lightning's evidence of his careful and respectful approach to interviewing Aboriginal elders to gain disclosure of intimate knowledge about such a sensitive topic as treaty promises, a highly personal and familiar approach is required, rather than a clinical approach commonly used in academic research. That is, the realities of Aboriginal life, beliefs, and values dictate the circumstances under which information is divulged, and, in my opinion, this is just something that has to be accommodated in its evaluation.
[289] In any event, since the only transcript that I consider to be relevant is that of Mr. Mustus, whether or not the TARR project met Dr. von Gernet's standards, it must be considered on its own merit. I have already found in favour of the usefulness and reliability of the transcript; its weight is decided below.
2. Ms. Aasen's opinion
[290] Ms. Aasen gives evidence intended to be useful in determining whether weight can be given to the four accounts of oral tradition under examination.
[291] Ms. Aasen testified that, from her experience, one should expect that an account of oral tradition should contain certain features which she described as "markers". That is, an elder's expertise to pass on oral tradition is affirmed by the presence of certain features stated in the body of the story, which, when present, allows weight to be given to the story and, thus, its value in proving the facts recounted in it.
[292] In Ms. Aasen's opinion, if an elder's account contains a combination of assertions that he or she possesses the story, confirms that its contents have received public affirmation, shows self-knowledge of limitations of expertise, reflects truthfulness and confidence, credits sources, and the story is rich in detail, weight can be assessed accordingly (Aasen, pp.5-10).
[293] In his report, Dr. von Gernet has some sharp criticism to offer of Ms. Aasen's use of "markers"; he says:
According to the Asch and Aasen report, an Elder's expertise to pass on an oral tradition is "affirmed" in a number of different ways: (1) assertion of possession of stories, (2) public affirmation of knowledge, (3) self-knowledge of limitations of expertise, (4) truthfulness and confidence, (5) crediting sources, and (6) richness of detail. However, the researchers provide no solid evidence that the Cree or Dene have always systematically applied these six factors as part of a formal effort to preserve the integrity of traditions purporting to contain information about Treaty No. 8. Instead of detailing what cultural institutions or mechanisms these Aboriginal groups employ for the short or long-term transmission of collective memories of historical events, the researchers obliquely assert that they "had come to understand" that the criteria were "culturally appropriate. (p.24)
I find that, in expressing his criticism, Dr. von Gernet is not giving credit to Ms. Aasen's unique expertise. Ms. Aesen has professionally evaluated many statements of oral tradition, and I accept her opinion to the extent that one should expect the presence of "markers" in the statements of persons communicating evidence of oral tradition, and, when present, those statements can be seriously considered as evidence of oral tradition.
G. Findings respecting weight
[294] As an alternate strategy to challenging the evidence of oral tradition through cross examination, Canada and Alberta rely on other evidence to diminish its weight. In particular, Alberta relies on the evidence of Dr. von Gernet as quoted above. For Dr. von Gernet's general concerns about the accuracy of evidence of oral tradition to diminish the weight to be given to it as presented in the present case, I find that the concerns must be made specific to the individuals giving the evidence. That is, some proof must be found that, in some way, a witness to the oral tradition has failed to recount it accurately. I find that this has not been accomplished.
[295] At trial Ms. Aasen identified the above culturally appropriate criteria as "markers" (Transcript, 6 June 2001, 2298) and in her evidence identified where they occur in the transcripts of the evidence given at trial by Mrs. Randhile and Mr. Willier (Exhibit 63), and the transcript of Mr. Mustus' statement (Exhibit 34, Tab 9a). By my calculation, Ms. Aasen found: many examples of all markers present in Mrs. Randhile's evidence, with the exception of finding her story was rich in detail; all markers present in Mr. Willier's evidence including many examples of crediting sources, with the exception of finding evidence of public affirmation; and all markers present in Mr. Mustus' transcript, except public affirmation and reflects truthfulness and confidence.
[296] I find on the basis of Ms. Aasen's expert opinion that the statements she analysed are to be given weight.
[297] Alberta argues that because the Plaintiffs have produced so little oral history evidence, being that of Mr. Jean Marie Mustus, Mr. Joe Willier, and Mrs. Celeste Randhile, an inference can be drawn that these are, out of so many canvassed in the TARR project, the only people who can offer even a "scintilla" of oral history on the tax promise issue. As a consequence, it is argued, the evidence should be given little weight.
[298] It is apparent on the evidence of Mr. Badger and Mr. Paulette as quoted above that in both the Cree and Dene communities, keepers of the oral tradition have passed away, and few remain who can tell the story of the treaties. Consequently, I put no weight on the fact that the Plaintiffs have produced only three witnesses to testify to the oral tradition.
[299] With respect to the singularity of Mr. Mustus' transcript, there are many unproved conjectural possibilities, some being: none of the elders were asked about tax since the interviews were conducted to gain information about resources; the elders interviewed did not consider the tax promise important enough to mention, even though they knew of it; the elders interviewed did not know of the tax assurance, even though it was made; and, in fact, there is no oral tradition of a tax exemption promise and, somehow, a few elders wrongly came to believe that there is.
[300] I find there is really no point in pondering conjecture and theorizing about the amount of evidence of oral tradition available in the trial record; it exists, and its accuracy must be evaluated. If found to be accurate, it proves the belief in issue.
1. Mr. Willier's evidence
[301] On the evidence of Mr. Badger, I find that Mr. Joe Willier is prominently recognized as a person who holds the oral tradition of the Cree People in Treaty 8 area.
[302] Mr. Willier's evidence is composed of three distinct statements: the 1991 statement transcribed by Ms. Opekokew; the 1999 statement taken by Ms. Aasen and videotaped; and the evidence given at trial.
[303] With respect to the 1991 statement, Alberta argues that, since it was not put to Mr. Willier when he testified, it has limited evidentiary value, if any. I do not consider this to be an important point because the statement was proved through Ms. Opekokew.
[304] Dr. Flanagan in his expert report, and Alberta in its written argument have, in an attempt to discredit, raised a suspicion that the words in the 1991 statement are not those of Mr. Willier, but, somehow improperly, those of the transcriber Ms. Opekokew. Ms. Opekokew gave evidence on how the statement is her simultaneous translation into English of Mr. Willier's statement in Cree. While in the witness stand, the veracity or accuracy of her translation was not questioned in any way. Therefore, I find this concern to be baseless, and have no reason not to accept Mr. Willier's 1991 statement as cogent, and at face value.
[305] With respect to Mr. Willier's 1999 statement, Alberta argues that Ms. Aasen used leading questions to elicit the evidence respecting the tax exemption promise. The law with respect to a leading question is well known and concisely stated as follows:
A leading question is one which either suggests an answer or assumes the existence of disputed facts....It should never be forgotten that "leading" is a relative, not an absolute term.... Leading questions are objectionable because of the danger of collusion between the person asking them and the witness, or the impropriety of suggesting the existence of facts which are not in evidence (Cross on Evidence, 3rd ed., p.188).
[306] I find that, in the context of having a respected elder give an account of the oral tradition which he knows, it is not leading to direct the elder's attention to a certain topic. I do not accept for a moment that a man of Mr. Willier's calibre would concoct his statement respecting a tax exemption promise, let alone concoct it merely as a result of being directed to the topic by Ms. Aasen.
[307] In the course of giving his 1999 statement, Mr. Willier produced a diagrammatic description on large pieces of paper, and a few typewritten pages in expressing his belief in the treaty promises. His evidence is that these aids were prepared on his direction. I dismiss any suggestion that it is the documents that are speaking or in some way prove that Mr. Willier is not the holder of the evidence of oral tradition.
[308] With respect to his trial testimony, I allowed what I considered to be fair latitude in the giving of Mr. Willier's evidence because of the obvious problems being experienced with the translation.
[309] I find that, in evaluating Mr. Willier's trial statement, some reasonable accommodation must be given for his manner of expression; in particular, with respect to the following key passage:
MS. BUSS: Mr. Willier were you ever told anything by your elders about tax?
HAZEL DION DECORBY: (Cree spoken) Did your elders, your relatives, ever tell you that you had to pay anything like this (English spoken) tax?
THE WITNESS: (Cree spoken) Never. They did not mentioned it ever and as I said my mother also never mentioned it.
HAZEL DION DECORBY: (English spoken) No one ever mentioned that, and my mother never mentioned it. Talked about it.
MS. BUSS: I don't know if I should be asking as question for a follow up question. Were you told anything about paying money to the government? (inaudible) the word.
THE COURT: That's - that's the question you propose. (Inaudible)
(inaudible)
THE COURT: Okay. Go ahead.
MS. BUSS: Were you told anything about paying money to the government Mr. Willier?
HAZEL DION DECORBY: (Cree spoken) Did they ever tell you - all of you - if you all would all have to pay the leader at the time?
THE COURT: By any of your elders? Is that what you mean? Miss Buss.
MS. BUSS: Yes, sorry. Were you told anything about your elders, about paying money to
HAZEL DION DECORBY: (Cree spoken) Were you ever..
MS. BUSS: To the government.
HAZEL DION DECORBY: (Cree spoken) Told by your elders what they (the elders) had to pay to these...?
THE WITNESS: (Cree spoken) I don't believe so. I don't believe so. I had not ever heard an Elder state, every time one spoke with me, that an Indian should have to make payment for anything.
HAZEL DION DECORBY: (English spoken) No. He had never heard anything to - to statement that they would have to pay money into that or - to pay money.
THE WITNESS (Cree spoken) These were words of the (English spoken) Minister: This is what he (minister) told the chiefs that they would never have to pay for anything until the end of time.
HAZEL DION DECORBY: (English spoken) In the minister's words, that he had said that there would never be any monies - the Indian had to pay (Exhibit 63, pp. 1602-1603).
[310] Alberta argues that the meaning to be put to the first emphasized passage is that Mr. Willier was never told anything by his elders about tax. In my opinion, a fair reading in context of his statement does not support this interpretation. The question posed called for a response as to whether he was ever told that he had to pay tax; I find a reasonable interpretation of his answer is that he was never told he had to pay tax; that is, he did not have to pay tax as a result of a treaty promise.
[311] I find that Mr. Willier's 1991 statement, February 1999 statement, and trial testimony should be read together. Thus, as to Alberta's concern that there are differences between the statements as to the sources of Mr. Willier's knowledge, I find that on a fair reading of evidence, there is no discrepancy. Mr. Willier quoted the sources of his story across all three statements, and taken at face value, all the people mentioned are his sources.
[312] While Mr. Willier's trial statement is not nearly as full, or as well delivered as those given in 1991 or even 1999, I find that his evidence is consistent throughout. The theme that is constant in all three of his statements is that, according to the Cree understanding of the word "tax", after the Treaty was signed and the Aboriginal People paid in land for the peace and friendship the Treaty offered, they would not have to pay more, ever.
[313] Read together, Mr. Willier's three statements provide a rich, detailed account of what was understood by some Aboriginal People at the time of the Treaty negotiation. I do not have a reason not to accept what he has said at face value. To my satisfaction, Mr. Willier's evidence proves that Cree People believed that the Commissioners promised a tax exemption.
2. Mrs. Randhile's evidence
[314] Oddly enough, while Alberta does not contest Mrs. Randhile's credibility, a concern is raised in argument that, as she did not express her oral evidence of oral tradition concerning tax in a book where she was interviewed as a prominent elder from Saskatchewan, her evidence at trial about tax should be given no weight.
[315] I dismiss this argument. In fact Mrs. Randhile did give her evidence at trial about tax, and not in the book, but I cannot draw any adverse conclusion from this. This is the kind of example where the perceived conflict could have been resolved through cross-examination, but since it was not, I am left only with the fact of the difference to which I attach no importance.
[316] To my satisfaction, Mrs. Randhile's evidence proves that Dene People believed that the Commissioners promised a tax exemption.
3. Mr. Paulette's evidence
[317] I have no reason not to accept Mr. Paulette's evidence at face value, and, thus, find that it corroborates Mrs. Randhile's, and is further proof that Dene People believed that the Commissioners promised a tax exemption.
4. Mr. Mustus' evidence
[318] In my opinion, none of the concerns expressed by Dr. von Gernet with respect to TARR projects and the transcripts produced as a result, have been brought to bear on Mr. Mustus' individual transcript. It has been found to be useful and reliable, and I give it weight. Thus, I find that his evidence corroborates Mr. Willier's, and is further proof that Cree People believed that the Commissioners promised a tax exemption.
H. Conclusion
[319] I find that, whatever meaning the Commissioners attached to the tax assurance they gave, which has not been proved, it is different from that which the Aboriginal People understood; on a balance of probabilities, the Dene and Cree People believed that the Commissioners promised a tax exemption.
[320] The question now becomes: who takes responsibility for this misunderstanding?
V. Honour of the Crown
[321] Two points of law are important to the analysis which follows. As quoted in Section I above, Justice Binnie reinforces in Marshall that the Honour of the Crown is always at stake in its dealings with Aboriginal People, and 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 also important to remember Chief Justice McLachlin's second point of treaty interpretation in Marshall that treaties should be liberally construed and ambiguities or doubtful expressions should be resolved in favour of the Aboriginal signatories.
[322] On the last day of evidence in the trial, I asked each party to the action to address the following questions in their written and oral arguments: was there a misunderstanding between the Aboriginal People who took Treaty and the Treaty Commissioners with respect to the meaning of the tax assurance mentioned in the Treaty Report? If so, what is the impact of this misunderstanding on the claims made by the Plaintiffs in their statement of claim?
[323] In final oral argument, the Plaintiffs maintain that: the tax assurance should be read as a promise of a tax exemption, there was no misunderstanding, and as set out in Section IV(a) above, repeat their contextual line of argument. Both Canada and Alberta do not agree that there was a misunderstanding, but argue that, if there was, no common intention to a tax exemption promise has been proved, and, consequently, the Plaintiffs' claim fails.
[324] However, the Plaintiffs also submit as follows:
The honour of the Crown requires that the tax assurance be interpreted as a treaty promise. We know the concern was raised by the Indian people and responded to by the commissioners as a part of treaty negotiations. The commissioners were people the Indians trusted, who were there to give the word of the Queen.
In our respectful submission, sir, the honour of the Crown requires that the language used by the commissioner in describing what they told the Indian people must be interpreted in the sense that it would have been naturally understood by the Indian people at the time (Transcript, 11 January 2002, p.5174).
[325] Upon being pressed to explain Canada's position with respect to maintaining the Honour of the Crown under circumstances where the tax assurance is found to be a Treaty promise, and a misunderstanding is proved with respect to its meaning, Counsel for Canada only replied as follows:
In the Crown's respectful submission, it's not enough to -- My Lord, I feel constrained, frankly, on two fronts here: One is this case should not be decided by concession of counsel. And the second constraint is this argument we submitted to you was reviewed on a number of levels, and I don't have instructions, frankly, to go beyond it.
So I wish to assist you, but I do have those two constraints (Transcript, 11 January 2002, p.5217).
[326] The issue of the Honour of the Crown was put in play on the third day of the trial with Dr. Irwin's emphatic evidence that Commissioner Laird would not have intended to make a tax exemption promise. From that moment on, the possibility could be foreseen that, if the evidence of oral tradition has weight, a misunderstanding occurred. In my opinion, maintaining the Honour of the Crown in interpreting the Treaty term found to exist is at the heart of the present case and, indeed, is a determining factor in the outcome.
[327] I have found that Cree and Dene People believed that the Commissioners promised a tax exemption. It is unreasonable to say that, because the evidence of oral tradition proving the belief comes from only four sources, the belief should in some way be discounted.
[328] It is worth comment that the sources of written history of the actual events that transpired in the summer of 1899 are just as limited in number.
[329] The belief has been found to exist at the time of Treaty. In addition, in the present day, the belief is shared and asserted by the corporate Plaintiffs who advance and support the present action on behalf of many Treaty 8 People.
[330] An interesting example of adherence to the belief in Treaty 8 at the present time is the cairn located in Grouard, Alberta, which is depicted in Exhibit 99; chiselled into the granite are all the Treaty promises, including the promise of a tax exemption. Alberta's purpose in proving the existence of the cairn is to reduce the weight of the evidence of oral tradition on the basis that it is subject to the effects of "retroactive interference" as cautioned by Dr. von Gernet in his expert report. While there is no evidence that this effect played any part in the evidence giving of the witnesses proving the oral tradition, the cairn does prove that the belief that a tax exemption was granted is entrenched in the present day Treaty 8 Aboriginal understanding. I mention this fact to underscore the point that the Honour of the Crown was at stake in 1899, as it most assuredly is in Aboriginal minds in 2002.
[331] Indeed, emphasized throughout the present case are Justice Lamer's words in Sioui quoted in Section I above: the interpretation of a treaty must be realistic and reflect the intention of both parties, not just that of the Aboriginal People; the Court must choose from among the various possible interpretations of the common intention the one which best reconciles the Aboriginal interests and those of the Crown.
[332] The value being expressed by Justice Lamer is that reconciliation is required in resolving competing treaty interpretation interests between Aboriginal People and the Crown. In applying this value to the present case, there is no doubt that both the Crown and the Aboriginal People wanted to negotiate a successful treaty; I find that now the primary objective is to attempt to achieve this result by reconciling the interests of both Canada and the Plaintiffs with respect to the interpretation of the tax term found.
[333] On the evidence, there is clearly an unintended breach in the trust relationship between Canada and the Aboriginal People of Treaty 8. Thus, both have a common interest in ensuring that their special relationship is made whole. I find that the responsibility to achieve this result lies with Canada. There is nothing more that the Plaintiffs can do than prove their just claim as they have.
[334] In my opinion, according to law and in its own interests and those of Treaty 8 Aboriginal People, Canada is required to recognize and fulfill the tax assurance as it was understood by the Aboriginal People in 1899. Accordingly, as claimed by the Plaintiffs, I find that the Treaty term found must be interpreted to provide to Aboriginal People who are entitled to the benefits of Treaty 8, a treaty right not to have any tax imposed upon them at any time for any reason.
[335] In my opinion, nothing less will meet Canada's fiduciary obligation to the Aboriginal People of Treaty 8.
VI. Extinguishment and Justification
[336] The objective in this Section is to determine the result of finding that the tax exemption promise is a term of Treaty 8, and is, therefore, a treaty right under s.35 of the Constitution Act, 1982 (the "Treaty Right"). As set out in Section II above, the Plaintiffs question the applicability of the Income Tax Act, R.S.C. 1985 (5th Supp.); the precise Constitutional question to be answered is whether:
The application of Federal taxation provisions to Indian beneficiaries of Treaty 8 is inconsistent with s.35 of the Constitution Act, 1982, Schedule B to the Canada Act 1982 (U.K.), and is therefore, to the extent of the inconsistency, of no force and effect.
[337] Chief Justice McLachlin's ninth point of treaty interpretation in the quote from Marshall first provided in Section I above is important to the analysis here:
Treaty rights of aboriginal peoples must not be interpreted in a static or rigid way. They are not frozen at the date of signature. The interpreting court must update treaty rights to provide for their modern exercise. This involves determining what modern practices are reasonably incidental to the core treaty right in its modern context: Sundown, supra, at para. 32; Simon, supra,at p. 402.
[338] In the statement of material facts upon which the constitutional question is based, the Plaintiffs take the position that the Treaty Right found is an exemption from the payment of any tax, apparently whether Municipal, Provincial, or Federal. I find that a modern interpretation of the Treaty Right would include exemption from the payment of income tax.
[339] Indeed, the only constitutional issue before me in the present case is with respect to Federal income tax. Arguing on the assumption that the Treaty Right found includes this exemption, Canada's response to the constitutional question is based on two separate arguments: the Treaty Right has been extinguished; and, if not extinguished, any infringement of the Treaty Right by Federal income tax legislation is justified.
A. Extinguishment
[340] The law pronounced by the Supreme Court of Canada with respect to extinguishment of Aboriginal and treaty rights protected by s.35 of the Constitution Act, 1982 places a heavy onus of proof on Canada. With respect to the extinguishment of an Aboriginal right, Chief Justice Dickson and Justice La Forest in R. v. Sparrow [1990] 1 S.C.R. 1075 at page 1099 say this :
The test of extinguishment to be adopted, in our opinion, is that the Sovereign's intention must be clear and plain if it is to extinguish an aboriginal right.
[341] Similarly, with respect to the extinguishment of a treaty right, Justice Lamer in Sioui at page 1061 says:
Even assuming that a treaty can be extinguished implicitly, a point on which I express no opinion here, the appellant was not able in my view to meet the criterion stated in Simon regarding the quality of evidence that would be required in any case to support a conclusion that the treaty had been extinguished. That case clearly established that the onus is on the party arguing that the treaty has terminated to show the circumstances and events indicating it has been extinguished. This burden can only be discharged by strict proof, as the Chief Justice said at p.253 C.C.C., p. 405 D.L.R.:
Given the serious and far-reaching consequences of a finding that a treaty right has been extinguished, it seems appropriate to demand strict proof of the fact of extinguishment in each case where the issue arises.
[342] In an attempt to meet this test in the present case, Canada argues that the Treaty Right has been implicitly extinguished by the passage of income tax legislation in 1915, and to the present day. While acknowledging the exemptions contained in the Indian Act legislation throughout the period, the essential argument is this:
The taxation of all residents of Canada, and of all who carry on business in Canada, whether resident or not, with explicit provisions that certain incomes only be exempt, is a clear and plain statement by Parliament as to both who and what will be subject to income tax. The will of Parliament in this regard is utterly, clearly and plainly incompatible with the Plaintiffs' claim that individual Treaty 8 Indians "are not subject to any tax at any time for any reason." Any treaty promise with that effect was extinguished (Written Submission of the Defendant, p.65).
[343] In response, the Plaintiffs argue that, in the absence of express legislative wording or complete incompatibility between the Treaty Right and tax legislation, no extinguishment has occurred as maintained by Canada, and, in particular that:
Simply put, there is no incompatibility between the treaty right claimed and the taxing legislation. Parliament has apparently determined that certain potential taxpayers may be exempted from the obligation to pay tax without adversely effecting government. There is no evidence that an honourable Crown upholding a treaty promise would suffer any greater adverse effect. Thus, the fact that the Crown failed to give formal recognition [to the Treaty Right] by inclusion in the taxing legislation cannot form the basis of an extinguishment argument (The Plaintiffs' Rebuttal Argument, p.52).
[344] I agree with the Plaintiffs and, in addition, find a more fatal defect in Canada's assertion that extinguishment has occurred. The Supreme Court of Canada in Sioui focussed consideration on whether a particular treaty had been extinguished. With respect to this question, Justice Lamer said this at page 1063:
It must be remembered that a treaty is a solemn agreement between the Crown and the Indians, an agreement the nature of which is sacred: Simon, supra, at p.257 C.C.C., p.409 D.L.R., and While and Bob, supra, at p.649. The very definition of a treaty thus makes it impossible to avoid the conclusion that a treaty cannot be extinguished without the consent of the Indians concerned. [Emphasis added]
[345] With respect to the extinguishment of a term of a treaty, as opposed to a treaty itself, I really cannot find any distinction. If a solemn agreement requires consent to be extinguished, why should not a term of a solemn agreement, being one based on a solemn promise, also require consent? I can see no reason and, thus, find that consent is necessary.
[346] Accordingly, since no consent has been given, I find that the Treaty Right has not been extinguished.
B. Justification
[347] As will be detailed below, any decision as to whether the infringement of a treaty right is justified must have particular regard for the special trust relationship that exists between Aboriginal People and Canada. Canada's argument on this issue recognizes the exemptions from taxation provided by the Indian Act with respect to property held on reserve. However, Canada argues that it is valid legislative objective in the passage of taxing legislation, and not a breach of this trust, to refrain from affording protection from taxation to property held by the beneficiaries of Treaty 8 in the commercial mainstream. In addition, Canada makes a general policy statement as follows:
Moreover, considerations of economic and regional fairness are a valid ground justifying the breach of a treaty right. It is manifestly not fair that those from the Treaty 8 region and in the Canadian mainstream, uniquely among Canadians, pay nothing in support of the fisc that provides them with services in that Canadian mainstream. Such a situation has nothing to do with property held qua Indian, or Indian status and clearly amounts to after the fact largesse (Written Submission of the Defendant, p.68).
The essence of this argument is also advanced by the Intervener, the Canadian Taxpayers Federation, which I will deal with independently in Section VIII below.
[348] I find that the tone, tenor, and substance of this "fairness" justification argument does not pay sufficient respect to the law and the commitments made to Treaty 8 People. In my opinion, the argument minimizes the significance of the Constitutional protection afforded to a treaty right, and, thus, I find it necessary to set out in some detail the established considerations which must apply in reaching a balanced finding on this very important issue.
[349] In Badger, at paragraphs 74 to 78, and 80 to 82, Cory J. sets out the nature of a treaty right as follows:
There is no doubt that aboriginal and treaty rights differ in both origin and structure. Aboriginal rights flow from the customs and traditions of the native peoples. To paraphrase the words of Judson J. in Calder, supra, at p. 328, they embody the right of native people to continue living as their forefathers lived. Treaty rights, on the other hand, are those contained in official agreements between the Crown and the native peoples. Treaties are analogous to contracts, albeit of a very solemn and special, public nature. They create enforceable obligations based on the mutual consent of the parties. It follows that the scope of treaty rights will be determined by their wording, which must be interpreted in accordance with the principles enunciated by this Court.
This said, there are also significant aspects of similarity between aboriginal and treaty rights. Although treaty rights are the result of mutual agreement, they, like aboriginal rights, may be unilaterally abridged. See Horseman, supra, at p. 936; R. v. Sikyea, [1964] 2 C.C.C. 325 (N.W.T.C.A.), at p. 330, aff'd [1964] S.C.R. 642; and Moosehunter, supra, at p. 293. It follows that limitations on treaty rights, like breaches of aboriginal rights, should be justified.
In addition, both aboriginal and treaty rights possess in common a unique, sui generis nature. See Guerin v. The Queen, [1984] 2 S.C.R. 335, at p. 382; Simon, supra, at p. 404. In each case, the honour of the Crown is engaged through its relationship with the native people. As Dickson C.J. and La Forest J. stated at p. 1110 in Sparrow, supra:
By giving aboriginal rights constitutional status and priority, Parliament and the provinces have sanctioned challenges to social and economic policy objectives embodied in legislation to the extent that aboriginal rights are affected. Implicit in this constitutional scheme is the obligation of the legislature to satisfy the test of justification. The way in which a legislative objective is to be attained must uphold the honour of the Crown and must be in keeping with the unique contemporary relationship, grounded in history and policy, between the Crown and Canada's aboriginal peoples. The extent of legislative or regulatory impact on an existing aboriginal right may be scrutinized so as to ensure recognition and affirmation. [Emphasis in the original]
...
This standard of scrutiny requires that the Crown demonstrate that the legislation in question advances important general public objectives in such a manner that it ought to prevail. In R. v. Agawa (1988), 65 O.R. (2d) 505 (C.A.), at p. 524, Blair J.A. recognized the need for a balanced approach to limitations on treaty rights, stating:
...Indian treaty rights are like all other rights recognized by our legal system. The exercise of rights by an individual or group is limited by the rights of others. Rights do not exist in a vacuum and the exercise of any right involves a balancing with the interests and values involved in the rights of others. This is recognized in s.1 of the Canadian Charter of Rights and Freedoms which provides that limitation of Charter rights must be justified as reasonable in a free and democratic society.
Dickson C.J. and La Forest J. arrived at a similar conclusion in Sparrow, supra, at pp. 1108-9.
In summary, it is clear that a statute or regulation which constitutes a prima facie infringement of aboriginal rights must be justified. In my view, it is equally if not more important to justify prima facie infringements of treaty rights. The rights granted to Indians by treaties usually form an integral part of the consideration for the surrender of their lands. [Emphasis added]
Having set out the importance of justifying the infringement of treaty rights, at paragraphs 97 and 98, Cory J. explains the test for justification as follows:
In Sparrow, at p. 1113, it was held that in considering whether an infringement of aboriginal or treaty rights could be justified, the following questions should be addressed sequentially:
First, is there a valid legislative objective? Here the court would inquire into whether the objective of Parliament in authorizing the department to enact regulations regarding fisheries is valid. The objective of the department in setting out the particular regulations would also be scrutinized. [Emphasis in the original]
At page 1114, the next step was set out in this way:
If a valid legislative objective is found, the analysis proceeds to the second part of the justification issue. Here, we refer back to the guiding interpretive principle derived from Taylor and Williams and Guerin, supra. That is, the honour of the Crown is at stake in dealings with aboriginal peoples. The special trust relationship and the responsibility of the government vis-à-vis aboriginals must be the first consideration in determining whether the legislation or action in question can be justified. [Emphasis in the original]
Finally, at p. 1119, it was noted that further questions might also arise depending on the circumstances of the inquiry:
These include the questions of whether there has been as little infringement as possible in order to effect the desired result; whether, in a situation of expropriation, fair compensation is available; and, whether the aboriginal group in question has been consulted with respect to the conservation measures being implemented. The aboriginal peoples, with their history of conservation-consciousness and interdependence with natural resources, would surely be expected, at the least, to be informed regarding the determination of an appropriate scheme for the regulation of the fisheries.
We would not wish to set out an exhaustive list of the factors to be considered in the assessment of justification. Suffice it to say that recognition and affirmation requires sensitivity to and respect for the rights of aboriginal peoples on behalf of the government, courts and indeed all Canadians. [Emphasis in the original]
In the present case, the government has not led any evidence with respect to justification. In the absence of such evidence, it is not open to this Court to supply its own justification....
[350] Thus, to justify infringement of the Treaty Right in the present case, Canada is required to show: a valid legislative objective; the Honour of the Crown is maintained in the infringement action taken; the right concerned has been infringed as little as possible; and, as is the case in conservation matters, some degree of consultation has taken place. I find that none of these requirements is met.
[351] It appears that the underlying rationale for Canada's argument is economic necessity. Even if proved it might be a valid legislative objective to have some of the beneficiaries of Treaty 8 pay income tax where they are not otherwise protected by the provisions of the Indian Act, in my opinion, the Honour of the Crown cannot be maintained by taking this action unilaterally.
[352] As quoted in Section II above, according to Mair's account of the Treaty negotiations at Lesser Slave Lake, Keenooshayo is quoted as asking Commissioner Laird the following question:
Do you not allow the Indians to make their own conditions, so that they may benefit as much as possible? Why I say this is that we to-day make arrangements that are to last as long as the sun shines and the water runs (p.60).
A little later in the dialogue that took place, Commissioner Laird replied:
We offer you certain terms, but you are not forced to take them. You ask if Indians are not allowed to make a bargain. You must understand there are always two to a bargain. We are glad you understand the treaty is forever. If the Indians do as they are asked we shall certainly keep all our promises (p.62).
[353] Again Keenooshayo asked:
Are the terms good forever? As long as the sun shines on us? (p.62).
To this question Commissioner Laird replied:
Treaties last forever, as signed, unless the Indians wish to make a change (p.63).
[354] What do David Laird's promises mean? Do they mean that Canada will abide by the treaty promises just until they are no longer to its liking? Do they mean that, once the promises are no longer to Canada's liking, they can be extinguished without any meaningful consultation with the Aboriginal People affected. In my opinion, the Honour of the Crown can only be maintained by an emphatic "no" to each question.
[355] The Treaty Right has the same force as any promise written in the text of the Treaty. In my opinion, the promise given by Commissioner Laird that Treaty Rights last forever cannot be fulfilled by quietly passing general tax legislation. In my opinion, the promise that Aboriginal People would control any change to the terms of the Treaty, at the very least requires a focussed and completely open consultation with those Aboriginal People affected to reach a consensus on change if Canada considers that a change is needed. There has been no such consultation.
[356] In my opinion, Canada's argument portrays a surprisingly negative and disrespectful attitude towards a constitutional right of Treaty 8 People which is inconsistent with the fiduciary obligation it is required to meet. Accordingly, I find that no justification has been proved for the infringement of the Treaty Right.
VII. The Result
[357] In the Amended Statement of Claim, the Plaintiffs claim as follows:
7. The Treaty Commissioners promised the First Nations that, inter alia, Treaty No. 8 did not open the way to the imposition of any tax (the "subject promise"). The subject promise is a term of Treaty No. 8 and provided a corresponding right to the members of First Nations who are entitled to the benefits of Treaty No. 8, not to have any tax imposed upon them at any time for any reason (the "subject right").
8. The subject promise and subject right were not extinguished by Her Majesty the Queen or by Canada or by any other party prior to April 17, 1982, and are now protected from extinguishment by the Constitution Act, 1982.
9. Despite the subject promise, the Plaintiffs have been subjected to the payment of tax pursuant to the requirements of various acts and regulations enacted by Canada, and by the Province of Alberta, including, but not limited to, the Income Tax Act (Canada) and the Excise Tax Act (Canada).
10. The imposition of any tax on the Plaintiffs is an unjustified breach of the subject promise and an unjustified infringement of the subject right.
11. The imposition of any tax on the Plaintiffs is an unjustified breach of Canada's fiduciary duty to the Plaintiffs, as members of the First Nations.
WHEREFORE THE PLAINTIFFS AND EACH OF THEM CLAIM:
1. A Declaration that:
(a) the Plaintiffs are entitled to claim and [sic] benefits of Treaty No. 8, including the subject right;
(b) the subject promise is a term of Treaty No. 8;
(c) the nature of the subject right is as defined in paragraph 7, herein;
(d) the subject promise and the subject right were not extinguished prior to April 17, 1982; are now protected from extinguishment by the Constitution Act, 1982 and are binding on Canada to honour and uphold;
(e) the imposition of any tax by Canada on the Plaintiffs is an unjustified breach of the subject promise and an unjustified infringement of the subject right.
2. Costs of this action.
3. Such further and other relief as this Honourable Court considers just.
[358] For the reasons provided, the tax assurance has been found to be a Treaty promise, and, therefore, a Treaty Term. The Treaty Term has been found to be a Treaty Right to tax exemption. Therefore, the Plaintiffs' claims have been proved by operation of law, and they are entitled to judgment in the terms requested.
[359] Also for the reasons provided, my answer to the Constitutional question is in the affirmative. I find that the application of Federal taxation provisions to Indian beneficiaries of Treaty 8 is inconsistent with s.35 of the Constitution Act, 1982, Schedule B to the Canada Act 1982 (U.K.), and is therefore, to the extent of the inconsistency, of no force and effect.
VIII. The Canadian Taxpayers Federation Intervention
[360] As an intervener, the Canadian Taxpayers Federation ("CTF") makes five arguments: the first three being legal; and the last two, in my opinion, being ill conceived:
1. Parliament had and has no jurisdiction under the Constitution Act, 1867, to exempt Indians from taxation by legislation unrelated to the protection or advancement of Indians qua Indians;
2. As of the date of signing the Treaty, no act of Parliament authorized the Commissioners to make an agreement exempting Treaty 8 Indians from taxation.
3. On their proper interpretation, the words of Treaty 8 and the discussions between the Indians and the Commissioners could not create a tax exemption based on racial discrimination because such an interpretation would cause a breach by Canada of Treaties, Covenants, Charters, Conventions and Declarations entered into or adhered to by Canada.
4. The Court ought to refuse the declaration sought because a tax exemption based on racial discrimination would violate the Canadian Charter of Rights and Freedoms.
5. The Court should refuse the declaration sought because affirmation of an agreement to exempt Treaty 8 Indians from taxation would create a legislative scheme of racial discrimination contrary to historic, international and domestic social principles supporting racial inequality.
[361] I find that the CTF's first argument is flawed because it misconstrues the issue to be determined. In the present case a decision is required as to whether the Plaintiffs have proved a treaty right, while the CTF's submission addresses whether Treaty 8 People have an Aboriginal right. The test for establishing Aboriginal rights is distinct from establishing treaty rights, and is not engaged in the present case.
[362] With respect to the CTF's second argument, whether a tax exemption promise was made by the Treaty Commissioners at the time of the negotiations is a question of fact to be determined. Since I have found that there was no intention on the part of the Commissioners to make such a promise, there is no need to consider the question of their statutory authority to do so.
[363] The CTF's third argument has absolutely no merit because a tax exemption right exercised by Treaty 8 People is not based on so called "racial considerations", but rather on the negotiated terms of the Treaty. Further, the CTF's reference to numerous international instruments such as theInternational Covenant on Civil and Political Rights [(1966) 999 U.N.T.S. 171, 1976 Can. T.S. No. 47, in force 1976] consist of little more than vague references to the principles of equality and non-discrimination without considering the manner in which international law seeks to accommodate the rights of Aboriginal People.
[364] As correctly pointed out by the Plaintiffs in their response, if anything, Canada has been criticized internationally for its failure to uphold the rights of Aboriginal People. The United Nations Human Rights Committee, which monitors the implementation of the International Covenant on Civil and Political Rights, for example, criticized Canada in 1999 for its failure to implement the recommendations of the Royal Commission on Aboriginal Peoples. A key recommendation made by the Royal Commission was the fulfillment of historical treaties.
[365] I find it interesting to note that Canada has no position on the CTF's fourth and fifth arguments which, in my opinion, do not properly respect, recognize, and address the legal status of Aboriginal People within Canada's Constitutional framework.
[366] In my opinion, the classic liberal position of formal equality of individuals within the state advanced by the CTF has never completely defined Canada. Canada is a multi-cultural nation by law, and has a long history of according substantive equality rights to defined groups. In this framework, Aboriginal People are legally recognized as having distinct, or sui generis, rights. Section 35 of the Constitution Act, 1982, and s. 25 of the Charter recognize and protect these rights by affirming the unique status, intellectual traditions, and customs of Aboriginal People.
[367] I reject the CTF's hypothesis that enforcing the Treaty Right found to exist in the present case "would operate so as to exempt a class of Canadians, namely Treaty 8 Indians, solely on the basis of their race, national or ethnic origin, viz., as Indians, or, conversely, to discriminate against all persons other than Treaty 8 Indians because of their race, national or ethnic origin, viz., as non-Indians" (Memorandum of Fact and Law of the Canadian Taxpayers Federation, paragraph 31).
[368] There is no merit to the argument that a Treaty 8 tax exemption constitutes racial discrimination. Any distinction with respect to non-taxability of Treaty 8 People is based on the Treaty Right negotiated, and certainly not on "racial" considerations.
[369] In my view, the characterization of the enforcement of the lawful treaty rights of Treaty 8 People as some inequality being perpetrated on both Aboriginal People and the balance of the population of Canada, is ill-informed, misguided, and inflammatory in that it works to create unnecessary tensions between Aboriginal People and other Canadians. The misinformation disseminated by the CTF in unfairly playing the "race" card to gain
publicity for its political purposes, works a great injustice to not only Aboriginal People, but everyone who has an interest in fairness and justice according to law.
J U D G M E N T
For the reasons provided, I declare that:
(a) the Plaintiffs are entitled to claim the benefits of Treaty No. 8, including the Treaty Right not to have any tax imposed upon them at any time for any reason;
(b) the Treaty Right was not extinguished prior to April 17, 1982; and is now protected from extinguishment by the Constitution Act, 1982 and is binding on Canada to honour and uphold;
(c) the imposition of any tax by Canada on the Plaintiffs is an unjustified breach of the Treaty Right.
I also declare that:
The application of Federal taxation provisions to Indian beneficiaries of Treaty 8 is inconsistent with s.35 of the Constitution Act, 1982, Schedule B to the Canada Act 1982 (U.K.), and is therefore, to the extent of the inconsistency, of no force and effect.
As they are successful in this action, I award costs to the Plaintiffs payable by the Defendant.
"D. R. Campbell"
Judge
OTTAWA
March 7, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2288-92
STYLE OF CAUSE: Charles John Gordon Benoit Athabasca Tribal Corporation The Lesser Slave Lake Regional Council and Kee Tas Kee Now Tribal Council Plaintiffs
- and
Her Majesty the Queen
Defendant
- and
The Attorney General of the Province of Alberta
Pursuant to s. 57 of the Federal Court Act
- and
The Canadian Taxpayers Federation
Intervener
PLACE OF HEARING: Edmonton Alberta
DATE OF HEARING: May 7, 8, 9, 10, 14, 15, 16, 17, 22, 23, 24 - 2001 June 4, 5, 6, 7, 11, 18, 19, 20, 25 - 2001
July 9, 10, 11, 12, - 2001
October 9, 11, 12, 16, 17, 23, 24, 25, 26, 31 - 2001 November l, 2001
January 22, 2002
REASONS FOR JUDGMENT: The Honourable Mr. Justice Campbell
DATED:
March 7, 2002
APPEARANCES:
Ms. Elizabeth Johnson
Ms. Karin Buss
Ms. Elizabeth Williams
FOR PLAINTIFFS
Ms. Bonnie IVloon
Ms. Susan Avala
FOR DEFENDANT
Mr. Everett Bunnell Q. C.
Mr. Aldo Argento
FOR THE ATTORNEY
GENERAL FOR THE
PROVINCE OF ALBERTA
(Pursuant to s. 5 7 of the
Federal Court .Act)
Mr. Norman Mullins, Q. C.
Mr. John Carpay
FOR THE INTERVENER
THE CANADIAN
TAXPAYERS
FEDERATION
SOLICITORS OF RECORD:
Ackroyd Piasta Roth & Day
Edmonton, Alberta FOR PLAINTIFF
Morris Rosenberg
Deputy Attorney General of Canada
FOR DEFENDANT
Canadian Taxpayers Federation
Vancouver. B. C. FOR INTERVENER
MacLeod Dixon LLP
Calgary, Alberta FOR ATTORNEY GENERAL OF ALBERTA (Pursuant to Section 57 of the Federal Court Act)