Response to Application to Strike (BOFN Annuities)

SCT File No.: SCT - 5001 - 11

SPECIFIC CLAIMS TRIBUNAL

B E T W E E N:

BEARDY’S & OKEMASIS BAND #96 AND #97

Claimant (Respondent)

HER MAJESTY THE QUEEN IN THE RIGHT OF CANADA as represented by the Minister of Aboriginal Affairs and Northern Development Canada

Respondent (Applicant)

RESPONSE TO APPLICATION TO STRIKE PURSUANT TO SECTION 17 OF THE SPECIFIC CLAIMS TRIBUNAL ACT

MEMORANDUM OF LAW AND ARGUMENT ON BEHALF OF THE RESPONDENT

TO: Department of Justice Canada Prairies Regional Office (Saskatoon) 10th Floor, 123 – 2nd Avenue South Saskatoon, SK S7K 7E6 Fax: (306) 975-6780

Email: sasspecclaim [email protected] Attention: Daniel J. Kuhlen

TO: Première Nation des Atikamekw d’Opitciwan c/o Dionne Schulze s.e.n.c. 507 Place d’Armes, #1100 Montréal, QC H2Y 2W8 Tel.: 514-842-0748 Fax: 514-842-9983 Courriel: [email protected]

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I. Response to Application to Strike 1. The Beardy’s & Okemasis Band #96 and #97 (the “Claimant” or “Band” depending on the historical context), opposes the Application of Her Majesty the Queen in Right of Canada (the “Crown”) to strike the specific claim alleging various breaches of the Crown’s treaty, legal, trust, fiduciary and/or equitable duties in relation to the unlawful suspension and termination of the Claimant’s collective treaty right to annuity payments from 1885-1888 (the “Treaty Annuities Claim”).

2. The Claimant submits that the treaty right to annuity payments, which represents the primary consideration given to the signatory Bands for what the Crown viewed as the surrender or cession of their collective interest in 121,000 square miles of land, is a collective right of the Band, and consequently, that the adjudication of the Treaty Annuities Claim is clearly within the jurisdiction of the Specific Claims Tribunal pursuant to a plain and ordinary reading of section 14 of the Specific Claims Tribunal Act (the “SCTA”), the context and scheme of the SCTA, and the intention of Parliament.

II. The Treaty Annuities Claim is Within the Jurisdiction of the Tribunal to Adjudicate 3. The Crown argues that “Treaty annuities are individual entitlements, and consequently, the Tribunal has no jurisdiction to adjudicate a claim for failure to pay treaty annuities to individual members of a First Nation.”1 According to the Crown’s characterization of the Treaty Annuities Claim, they maintain it contains a defect “on its face” which takes it outside of the Tribunal’s jurisdiction to adjudicate pursuant to the combined effect of sections 14(1) and 17(a) of the SCTA.

4. The Beardy’s & Okemasis First Nation fundamentally disagrees with the Crown’s characterization of the treaty right to annuities as an individual right, and submits that the Treaty Annuities Claim is clearly within the jurisdiction of the Tribunal to adjudicate based on a plain reading of section 14 the SCTA and the principles of statutory interpretation regarding statutes relating to Indians.

5. Nowegijick v. R., a Supreme Court of Canada decision relating to interpretation of a tax exemption under the Indian Act, stands for the generally accepted principle that:

… treaties and statutes relating to Indians should be liberally construed and doubtful expressions resolved in favour of the Indian. If the statute contains language which can reasonably be construed to confer tax exemption that construction, in my view, is to be favoured over a more technical construction which might be available to deny exemption. In Jones v. Meehan, 175 US 1, it was held that “Indian treaties must be construed, not according to the technical meaning of their words, but in the sense in which they would naturally be understood by the Indians”. 2 6. Section 14(1) of the SCTA states:

14. (1) Subject to sections 15 and 16, a First Nation may file with the Tribunal a claim based on any of the following grounds, for compensation for its losses arising from those grounds: (a) a failure to fulfil a legal obligation of the Crown to provide lands or other assets under a treaty or another agreement between the First Nation and the Crown. 7. It is submitted that a review of the facts and law as set out in the Treaty Annuities Claim supports our contention that the Claimant filed a claim “for compensation for its losses

1 Crown’s Memorandum of Law and Argument, at para. 12. 2 Nowegijick v. the Queen, [1983] 1 S.C.R. 29; 1983 CarswellNat 123, at para. 25 (“Nowegijick”). [Book of Authorities, Tab 1].

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arising from … (a) a failure to fulfill a legal obligation of the Crown to provide … other assets under a treaty … between the First Nation and the Crown” within the plain and ordinary meaning of section 14(1)(a) of the SCTA. That the Claimant suffered losses is undeniable given that the Beardy’s and Okemasis Bands were branded as “disloyal” in the wake of the 1885 Northwest Rebellion (the “Rebellion”) by Crown officials and the Department of Indian Affairs withheld the payment of treaty annuities to virtually every member of the two Bands from 1885-1888, including men, women, children and Elders who clearly had no involvement in the Rebellion. To put it another way, the Crown identified the bands as disloyal and punished the bands for their alleged participation in the Rebellion. In addition to the withholding of treaty annuities from entire bands, the Department also punished disloyal bands in other ways, including withholding rations to the band, confiscating guns, ammunition, and other property, the imposition of a “pass system” which required that Indians obtain permission of the Indian Agent to leave the reserve, and breaking up some bands like One Arrow and Chakastaypasin and obtaining a surrender of their reserve lands.3

8. It is also clear that the payment of treaty annuities was the primary consideration or quid pro quo paid by the Crown to the Indians for the surrender of their collective Aboriginal title to 121,000 square miles of extremely valuable land under the terms of Treaty 6.4 The termination of annuities payable under Treaty 6 plainly qualify as “assets under a treaty” and as claim relating to the Crown’s unlawful termination of treaty annuity payments to all or virtually all members of Beardy’s and Okemasis’ Bands. The Treaty Annuities Claim constitutes a clear failure by the Crown to provide such assets under a treaty, which is precisely the type of claim that the Tribunal was created to adjudicate.

9. Underlying the Crown’s position that the Treaty Annuities Claim is outside of the scope of the Tribunal’s jurisdiction, is its argument that the right to treaty annuities is an individual right which does not belong to the Beardy’s & Okemasis First Nation as a collective, and that the Crown’s unlawful termination of treaty annuity payments to virtually every member of those Bands by virtue of their membership does not constitute a loss to the Claimant as a whole.5 Rather, only those individuals which didn’t receive their annuities from 1885-1885 would be entitled to assert a claim against the Crown. Such a position is disingenuous given that the Crown enjoyed immunity from civil suits at that time. Furthermore, the Crown’s position is also inconsistent with the arguments it has advanced successfully in other cases like Soldier (discussed below).

10. The Crown’s characterization of the right to treaty annuities as an individual right is offered as support for its argument that the Tribunal is not competent to adjudicate the Treaty Annuities Claim, because, it is alleged, the individual character of the right takes the claim outside of the scope of section 14(1) of the SCTA.6 As framed by the Crown, the primary issue for determination is whether the right to treaty annuities is collective or individual in nature. It is noted that neither the SCTA nor Canada’s Specific Claims: Justice at Last policy paper adopt the Crown’s characterization of treaty rights as either “collective” or “individual”; indeed, neither word appears anywhere in these documents.

3 Declaration of Claim, paras. 16-19 and Beardy’s & Okemasis First Nations Treaty Annuities Claim dated August 25, 2000 in Affidavit of Gretchen Alene Albers, Exhibit A, at pp. 61-94 (the “Treaty Annuities Claim”). 4 Declaration of Claim, paras. 24-27. 5 Crown’s Memorandum of Law and Argument, at para. 12. 6 Crown’s Memorandum of Law and Argument, at paras. 16–24.

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11. It is submitted that if Parliament had intended to exclude claims relating to treaty annuities from the Tribunal’s adjudicative jurisdiction, it could have expressed this intention in clear and unambiguous language in the SCTA. Section 15 of the SCTA expressly excludes certain types of claims which a First Nation may not file with the Tribunal, such as those “based on treaty rights related to activities of an ongoing and variable nature, such as harvesting rights.” There is no mention whatsoever of annuities in the types of claims that are excluded. Nor is there any distinction made between collective treaty rights and individual treaty rights in the SCTA.

III. The Termination of Annuities was a Collective Loss Suffered by the Beardy’s and Okemasis Bands a. Treaty Rights are Inherently Collective in Nature 12. Even if the Tribunal is not satisfied that the Treaty Annuities Claim, on its face, falls squarely within the plain and ordinary words of section 14(1)(a) of the SCTA, we maintain that the claim for losses suffered by the Beardy’s and Okemasis by virtue of the Crown’s termination of treaty annuities to virtually every man, woman and child who were members of a “disloyal” band is essentially collective in nature and was a collective loss that falls within the intended scope of the Specific Claims Policy and the SCTA.

13. In its Application to Strike, the Crown does not dispute that the right to annuities is a right derived from Treaty 6. It is almost trite law based on the Supreme Court of Canada jurisprudence that Aboriginal and treaty rights are inherently collective in nature, particularly so when the aboriginal right in question derives from the sacred promises enshrined in the text of a treaty. This fundamental principle was concisely summarized in the Federal Court decision of Gill v. Canada where Prothonotary Hargrave states:

The Supreme Court of Canada has on a number of occasions pointed out that aboriginal rights are collective rights, belonging to collective entities and this is particularly so when the rights are derived from treaty and thus are collective rights belonging to the band as a whole: for example see R. v. Sparrow, [1990] 1 S.C.R. 1075 (S.C.C.) at pages 1111 and 1112; R. v. Vanderpeet, [1996] 2 S.C.R. 507 (S.C.C.), in which the Court looked upon the right claimed as a right, if it had existed, of the Sto:lo Indian Nation; Marshall v. Canada, [1999] 3 S.C.R. 533 (S.C.C.) at 546-547 where the individual on trial, claiming an aboriginal right, was required to demonstrate membership in an aboriginal community; and R. v. Sundown, [1999] 1 S.C.R. 393 (S.C.C.) at paragraph 36 where Mr. Justice Cory, in writing the decision of the Court, observed that: Any interest in the hunting cabin is a collective right that is derived from the treaty and the traditionary [sic] method of hunting. It belongs to the Band as a whole and not to Mr. Sundown or an individual member of the Joseph Bighead First Nation. It would not be possible, for example, for Mr. Sundown to exclude other members of this First Nation who have the same treaty right to hunt in Meadow Lake Provincial Park.7 14. The Claimant submits that the Supreme Court’s repeated and consistent rulings regarding the collective nature of aboriginal and treaty rights essentially amounts to a presumption that Aboriginal rights, particularly those which derive from the sacred texts of the treaties, are inherently collective rights that belong to the members of the Band by virtue of their membership in the collective. If so, it follows that the Claimant should be entitled to the benefit of that presumption unless there is compelling evidence to the contrary.

15. As a collective interest, Aboriginal title could only be alienated by the collective; it logically follows that the primary consideration provided in return for the surrender of this interest

7 Gill v. Canada, 2005 FC 192; 2005 CarswellNat 406, at para. 12, [Book of Authorities, Tab 2]. Emphasis added.

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is similarly collective in nature. The right to treaty annuities was granted equally to all members of those Bands that entered into Treaty 6 and there is no individual differentiation as to the content of or entitlement to this right.

16. Individual members of the Treaty 6 Bands did not have the legal capacity to negotiate or enter into the terms of the treaty, nor were they entitled to any special benefit in an individual capacity from the surrender of their collective interest in the lands. An individual’s entitlement to treaty annuities arose solely from and was inextricably linked to membership in a Treaty 6 Band. An individual who ceased to be a member of a Treaty 6 Band, lost their right to receive the Treaty 6 annuity payments.

17. In this context, the Claimant respectfully submits the Crown has not discharged the heavy onus of proving that the Treaty 6 collective right to annuities is sufficiently distinguishable from various other collective treaty rights, and has consequently failed to establish that this right represents a unique exception to the fundamental principle that aboriginal rights, particularly those derived from the treaties, are prima facie collective in nature.

b. Principles of Treaty Interpretation 18. The Claimant’s characterization of the right to treaty annuities as collective in nature is strongly supported by both a plain reading of the text of Treaty 6, and by an examination of the broader context surrounding the negotiations of the treaty and process by which bands adhered to the terms of Treaty 6.

19. It is now well-settled that Indian treaties and the rights which flow therefrom are sui generis in nature,8 and as such, the Courts have developed a specialized set of principles to assist in interpreting the legal effect of a treaty and the nature of the rights which flow from these sacred pacts.

20. When interpreting the treaties and the rights that flow therefrom, the primary question to be addressed relates to the intentions of the parties. In determining the legal effect of a treaty, the Supreme Court has held that “Indian treaties should be given a fair, large and liberal construction in favour of the Indians” and cautioned against a strict application of legal principles developed to interpret contracts or international treaties because “[a]n Indian treaty is unique; it is an agreement sui generis which is neither created nor terminated according to the rules of international law.”9

21. The reasons of Mr. Justice Cory in R. v. Badger provide a useful summary of the Supreme Court jurisprudence relating to the principles which govern the interpretation of the treaties and the sanctity of the rights enshrined therein:

First, it must be remembered that the treaty represents an exchange of solemn promises between the Crown and the various Indian nations. It is an agreement whose nature is sacred. See R. v. Sioui, [1990] 1 S.C.R. 1025, at p. 1063; Simon v. The Queen, [1985] 2 S.C.R. 387, at p. 401. Second, the honour of the Crown is always at stake in its dealing with Indian people. Interpretations of treaties and statutory provisions which have an impact upon treaty or aboriginal rights must be approached in a manner which maintains the integrity of the Crown. It is always assumed that the Crown

8 Simon v. The Queen, [1985] 2 S.C.R. 387, 1985 CarswellNS 226 at para. 30 (“Simon”), [Book of Authorities, Tab 3]; Sioui v. Quebec (Attorney General), [1990] 1 S.C.R. 1025 (S.C.C.), 1990 CarswellQue 103 at 42 (“Sioui”), [Book of Authorities, Tab 4]; Montana Band v. R., 2006 FC 261, 2006 CarswellNat 465, at para. 485 (“Montana Band”), [Book of Authorities, Tab 5], affirmed by Montana Band v. R., 2007 FCA 218. 9 Ibid.

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intends to fulfill its promises. No appearance of “sharp dealing” will be sanctioned. See Sparrow, [[1990] 1 S.C.R. 1075], at pp. 1107-8 and 1114; R. v. Taylor (1981), 34 O.R. (2d) 360 (Ont. C.A.), at p. 367. Third, any ambiguities or doubtful expressions in the wording of the treaty or document must be resolved in favour of the Indians. A corollary to this principle is that any limitations which restrict the rights of Indians under treaties must be narrowly construed. See Nowegijick v. The Queen, [1983] 1 S.C.R. 29, at p. 36; Simon, supra, at p. 402; Sioui, supra, at p. 1035; and Mitchell v. Peguis Indian Band, [1990] 2 S.C.R. 85, at pp. 142-43…10 22. The underlying rationale for special rules of interpretation and evidence in relation to Indian treaties finds its justification in the unique historical circumstances in which these treaties were negotiated between Aboriginal peoples and the Crown:

… 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… 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 the treaty which impose a limitation on the right which has been granted.11 23. Although the Claimant recognizes that there are some cases where the plain and ordinary meaning of a clause in an Indian treaty may reflect the true understanding and intentions of the parties, it is equally clear that where the interpretation of a treaty provision is ambiguous or in dispute the Tribunal should give due consideration and weight to evidence of the broader historical context in which the treaty was signed.

24. In R. v. Sioui, the Supreme Court of Canada confirmed that that the broader historical context of a treaty is always a relevant line of inquiry when interpreting its meaning and the nature of the rights flowing from it:

The historical context, which has been used to determine the existence of the treaty, may equally assist us in interpreting the extent of the rights contained in it. As MacKinnon J.A. said in Taylor and Williams, supra, at 232: Cases on Indian or aboriginal rights can never be determined in a vacuum. It is of importance to consider the history and oral traditions of the tribes concerned, and the surrounding circumstances at the time of the treaty, relied on by both parties, in determining the treaty’s effect.12 25. The legal rationale underscoring this principle was highlighted in the following passage from the dissenting reasons of Wilson J. in R. v. Horseman:

[The] treaties were the product of negotiation between very different cultures and the language used in them probably does not reflect, and should not be expected to reflect, with total accuracy each party’s understanding of their effect at the time they were entered into. This is why the courts must be especially sensitive to the broader historical context in which such treaties were negotiated. They must be prepared to look at that historical context in order to ensure that they reach a proper understanding of the meaning that particular treaties held for the signatories at the time.

10 R. v. Badger, [1996] 1 S.C.R. 771, 1996 CarswellAlta 587, at para. 41 (“Badger”), [Book of Authorities, Tab 6]. [Emphasis added]. Also see: R. v. Sundown, [1999] 1 S.C.R. 393 (S.C.C.), 1999 CarswellSask 94, at para. 24 (“Sundown”), [Book of Authorities, Tab 7]. 11 Badger, supra, at para. 52. [Emphasis added and citations omitted]. 12 Sioui, supra at para. 112, quoting R. v. Taylor and Williams (1981), 62 C.C.C. (2d) 227, 1981 CarswellOnt, at para. 8 (“Taylor and Williams”), [Book of Authorities, Tab 8].

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… to put it simply, Indian treaties must be given the effect the signatories obviously intended them to have at the time they were entered into even if they do not comply with to-day’s formal requirements. Nor should they be undermined by the application of the interpretive rules we apply today to contracts entered into by parties of equal bargaining power.13 26. This principle was recently affirmed in the case of R. v. Morris where the Supreme Court held that an examination of the historical context in which the treaty was signed is necessary to determine the intentions of the parties, stating that:

…. the promises in the treaty must be placed in their historical, political, and cultural contexts to clarify the common intentions of the parties and the interests they intended to reconcile at the time.14 27. Taken together, these cases establish that this Tribunal should consider not only the written text of the treaty, but also any relevant extrinsic evidence that assists in determining the true intentions of the parties to the treaty, and by extension, the true nature of the rights which flow from the sacred promises enshrined in their terms. Further, it is clear that consideration of the broader historical context is crucial in cases where the Claimant alleges that the written terms of the treaty do not properly reflect the true understanding and intentions of the parties at the time the treaty was entered into.

c. The Written Text of Treaty 6 28. The Claimant submits that a plain reading of Treaty 6 demonstrates that the parties to the treaty intended to provide for a cession of the Indian’s collective interest in 121,000 square miles of land to the Crown in return for, inter alia, the collective right to perpetual annuity payments to be made by the Crown to all members of the signatory Bands.

29. The preamble of Treaty 6 emphasizes the collective nature of the promises in the treaty:

And whereas the Indians of the said tract, duly convened in council, as aforesaid, and being requested by Her Majesty’s said Commissioners to name certain Chiefs and Headmen, who should be authorized on their behalf to conduct such negotiations and sign any treaty to be founded thereon, and to become responsible to Her Majesty for their faithful performance by their respective Bands of such obligations as shall be assumed by them, the said Indians have thereupon named for that purpose, that is to say, representing the Indians who make the treaty at Carlton, the several Chiefs and Councillors who have subscribed hereto, and representing the Indians who make the treaty at Fort Pitt, the several Chiefs and Councillors who have subscribed hereto. … The Plain and Wood Cree Tribes of Indians, and all other the Indians inhabiting the district hereinafter described and defined, do hereby cede, release, surrender and yield up to the Government of the Dominion of Canada, for Her Majesty the Queen and Her successors forever, all their rights, titles and privileges, whatsoever, to the lands included within the following limits… 30. A plain reading of the preamble to Treaty 6 clearly demonstrates that the Crown’s main objective was to obtain a cession of the Indians’ collective interest in the lands upon such terms that had been negotiated between the Crown and the various Chiefs and Headmen in their capacity as representatives of the Indian bands that were signatories to the treaty. As such, it logically follows that the right to annuities, which represent the primary consideration provided by the Crown for the surrender of the Indian’s collective title to 121,000 square miles of invaluable land, is similarly collective in nature.

13 R. v. Horseman, [1990] 1 S.C.R. 901, 1990 CarswellAlta 47, at para. 5 (Wilson J in dissent), [Book of Authorities, Tab 9]. Emphasis added. This passage from Justice Wilson’s dissenting reasons was endorsed and applied in Badger, supra at para. 11 and Sawridge Band v. R., 2005 FC 1501, 2005 CarswellNat 3697, at para. 65, [Book of Authorities, Tab 10]. 14 R. v. Morris, 2006 SCC 59; 2006 CarswellBC 3120, at para. 18 (“Morris”), [Book of Authorities, Tab 11]. See also: Soldier v. Canada (Attorney General), 2009 MBCA 12; 2009 CarswellMan 36, at para. 94 (“Soldier”), [Book of Authorities, Tab 12].

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31. That the parties to Treaty 6 intended for the Crown to pay annuities to the members of the signatory Bands in perpetuity is clear from a plain reading of the annuity clause in Treaty 6 (the “Annuity Clause”), which states:

And further, that Her Majesty’s Commissioners shall, as soon as possible after the execution of this treaty, cause to be taken, an accurate census of all the Indians inhabiting the tract above described, distributing them in families, and shall, in every year ensuing the date hereof, at some period in each year, to be duly notified to the Indians, and at a place or places to be appointed for that purpose, within the territory ceded, pay to each Indian person the sum of $5 per head yearly. 32. The Claimant submits that a plain and ordinary reading of this clause leads inexorably to the conclusion that the Crown promised to pay the sum of $5 to every member of those bands that entered into Treaty 6 from the signing of Treaty 6 in 1876 and every year thereafter. The absence of any temporal limitations in the Annuity Clause reinforces the view that the parties intended this communal right would last in perpetuity.

33. In contrast to the Annuity Clause, other clauses in Treaty 6 impose specific temporal restrictions on the benefits to be received. For instance, the $12 “present” offered by the Crown was intended as a one-time payment made to each Indian at the time of the treaty signing. Also, the Crown promised to provide chiefs of bands with a suit of clothing once every three years. The absence of any such time limitations in the Annuity Clause is compelling evidence that the parties intended annuity payments to be made annually and in perpetuity without any time limits or other restrictions.

34. In view of the clear and unambiguous wording of the Annuity Clause, which does not contain any termination date, the Claimant submits that the Annuity Clause must be given its plain and ordinary meaning, namely, that the Crown was obligated to pay $5 each and every year to every member of the signatory Bands in perpetuity.

35. Turning to the arguments advanced by the Crown, the Crown’s Application to Strike contends that the use of the term “each Indian person” in the Annuity Clause is conclusive proof that the right to annuities belongs exclusively to individuals.15 With respect, we disagree. The Claimant submits that the Crown’s argument is based on a technical interpretation of the Annuity Clause that is not only contrary to established principles of treaty interpretation, but is also at odds with the perpetual nature of the right.

36. With respect to the Crown’s interpretation of the Annuity Clause, the principles of treaty interpretation cannot countenance the characterization of this provision and the nature of the right which flows from it by focusing exclusively on three words relating to the procedural aspects of the exercise of the right. Not only does such a characterization fail to take into account the wider context of both the Annuity Clause and Treaty 6 as a whole, but it also ignores the fact that the census taking and requisite notice aspects of this provision refer to the “Indians” collectively.

37. As such, it is contended that the Crown’s technical argument on the interpretation of the Annuity Clause is self-serving, misleading and contrary to a large, liberal and purposive interpretation of the Treaty and the notion that the honour of the Crown is always at stake when the interpretation of a treaty right is in issue.

38. The fact that the Treaty 6 right to annuities is perpetual further reinforces the Claimant’s position that this right is necessarily collective in nature. Specifically, the Claimant submits

15 Crown’s Memorandum of Law and Argument, at para. 17.

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the perpetual right to annuities, or any perpetual right granted by the treaties, must, of necessity, be collective in nature, as it is only the Bands as collectives which can last in perpetuity.

39. In light of the above, the Claimant respectfully submits that the right to annuities under Treaty 6 is not only collective in nature, but the Crown’s policy of withholding annuities from entire bands that they described as “disloyal” confirms that the losses were also collective in nature. Accordingly, the Treaty Annuities Claim falls within the jurisdiction of the Tribunal to adjudicate.

d. The Broad Historical Context of Treaty 6 40. Where there is no disagreement as to the interpretation of the treaty based on a plain and ordinary reading of its written terms, it is not always necessary to engage in an extensive analysis of the broad historical context in which the Treaty was signed. In the present case, however, the Claimant fundamentally disagrees with the Crown’s argument that the annuity clause in Treaty 6 is an individual right.16 In light of this dispute, the principles of treaty interpretation require due consideration of any relevant extrinsic evidence regarding the intentions of the parties to the Treaty.

41. Having determined that extrinsic evidence of the historical context surrounding the negotiation of a treaty is relevant where there is a dispute over the interpretation of the treaty or where a Claimant contends that the written terms do not reflect the true intentions of the parties, the Court in Sioui stated that the following factors enumerated in Taylor and Williams are relevant to an the interpretation of the treaties and may assist the Court in ascertaining the intention of the parties:

1. continuous exercise of a right in the past and at present, 2. the reasons why the Crown made a commitment, 3. the situation prevailing at the time the document was signed, 4. evidence of relations of mutual respect and esteem between the negotiators, and 5.the subsequent conduct of the parties.17

42. It is the last of the five factors enumerated in Sioui which we will elaborate on in relation to the assessment of the nature of the Treaty 6 right to annuities. In addition to the Claimant’s assertion that the collective nature of the right to annuities is apparent on a plain reading of Treaty 6, a review of the Crown’s subsequent conduct clearly demonstrates that the Crown understood and treated annuities as a collective right.

43. First, in the immediate aftermath of the Rebellion, forty four Indians were convicted of offences relating to their participation in the Rebellion, and among those convicted eleven were condemned to death and eight were hanged.18 Neither Chiefs Beardy nor Okemasis were ever charged with any offence and not a single member of either band was ever convicted of an offence related to any alleged participation in the 1885 Rebellion.19

16 Crown’s Memorandum of Law and Argument, at para. 17. 17 Sioui, supra at para. 46. 18 Affidavit of Avi Elena Scheibner, Exhibit A, at page 6 and para. 97. 19 Ibid. [Emphasis added].

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44. Notwithstanding the total lack of due process (or any process) to establish guilt or liability for their alleged participation in the Rebellion, the Department characterized the Beardy’s & Okemasis Bands as “disloyal” or “rebel” bands, and, beginning in 1885, terminated the payment of treaty annuities to all (in the case of the Okemasis Band #96) and virtually all (in the case of Beardy’s Band #97) of the members of these Bands, including men, women, children and elders.20

45. In the same way that the right to treaty annuities was entirely dependant on membership in a Treaty 6 band, the historical record is equally clear that the Department used membership in a Band as a collective as a justification for terminating treaty annuity payments in the wake of the Rebellion, irrespective of whether the individuals who were denied their annuities took any part in the hostilities whatsoever. Individuals were denied their annuities solely because of their membership in a “disloyal” band.

46. In a memorandum dated July 20, 1885, Superintendent General of Indian Affairs Hayter Reed set out a number of recommendations concerning “the future management of the Indians” which were adopted as Departmental policy:

No annuity money should be now paid any bands that rebelled, or any individuals that left well disposed bands and joined the insurgents. As the Treaty expressly stipulated for peace and good will, as well as an observance of law and order, it has been entirely abrogated by the rebellion… All future grants should be regarded as concessions of favour, not of right, and the rebel Indians be made to understand that they have forfeited every claim as a “matter of right.”21 47. The Federal Court’s review of the historical record in Montana Band provides further evidence that mere membership in a Band which the Crown had unilaterally characterized as a “rebel band” was sufficient, in the eyes of the Crown, to justify terminating an individual’s entitlement to treaty annuities. As stated by the Court:

Following and as a result of a consultation with the Superintendent General, a policy of “reward and punishment” is formulated. On October 28, 1885, Mr. Vankoughnet writes to the Indian Commission advising him of the new policy… He writes: … Neither Half-breeds nor full-blooded Indian members of rebel Bands are to be paid annuity in future until at least the full cost of the depredations committed shall have been repaid to the Government by deducting same from the annuities that would otherwise have been payable to them.22 48. When the Crown sought to impose a collective punishment on the members of those Bands who had fallen out of the Department’s favour, this collective punishment took the form of the termination of treaty annuity payments to entire bands in addition to other coercive measures aimed at the bands as a whole. Further, the Crown’s characterization of entire Bands in their collective capacity as “disloyal” and the termination of treaty annuity payments to all or virtually all of the members of these Bands exclusively by virtue of their membership provides strong support for the Claimant’s position that the Crown itself understood that the right to treaty annuities was collective in nature and each “disloyal” band was punished as a whole for their alleged participation in the Rebellion without any due process or lawful authority.

49. The termination of treaty annuity payments to virtually every member of those Bands which had fallen out of the Department’s favour between 1885 and 1888 clearly

20 Ibid., at paras. 141-142. 21 Ibid., at para. 129. 22 Montana Band, supra at para. 121. [Emphasis added].

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demonstrates that this was a collective punishment, and it therefore stands to reason that the Department also considered annuities to be a collective right.

50. Additionally, the versions of the Indian Act in force prior to, during and after the 1885 Rebellion contained provisions which specifically contemplated the suspension of treaty annuity payments to any individual Indians who were convicted of criminal offences punishable by imprisonment.23 It is therefore important to note that although the Crown was fully aware that annuities payable to individuals could be terminated in appropriate circumstances, the Department nevertheless chose to terminate treaty annuity payments to entire Bands on the grounds that they had breached the terms of the Treaty.

51. Notwithstanding the Claimant’s position that members of the Beardy’s and Okemasis Bands were not responsible for any significant participation in the Rebellion, and more importantly, that the Crown did not have the right to terminate annuities to every member of the Bands even if such participation were proven, which is denied, the Claimant submits that the Crown’s justification for the termination of the collective right to annuity payments pursuant to a breach of the terms of the Treaty clearly indicates that the Crown considered annuities to be a collective right because it was only the collective Bands who were parties to, and therefore bound by, the terms of Treaty 6.

52. Although the Department’s actions in the wake of the Rebellion discussed above provide strong support for the position that the Crown itself considered the right to annuities to be collective, perhaps the most compelling evidence of this characterization comes from Reed himself in 1896. As noted in Montana Band:

In the fall of 1896, in addition to determining where the repatriated Cree should live, the question as to how they should be treated is considered. … Deputy Superintendent General Reed advises Indian Commissioner A.E. Forget of the decision that these Cree should be treated as other rebels were treated and not paid any annuities… [and] he also informs him that the Department wants a separate paylist kept for the refugees so that there is no confusion regarding the retention of annuities “... until such time as it may seem fit to allow them the privileges of full membership of the Bands.” … Responding on September 30, 1896, to Deputy Superintendent General Reed’s letter, Indian Commissioner Forget disagrees and argues: The right of these Indians to their annuities from 1889, when the non-absentee rebels were restored to Treaty rights, being apparently conceded, it may perhaps be assumed that it is also conceded that the right of the absentees also dates back to 1889, when all Indians of the rebel class were restored to Treaty rights with no specified limitation of such act to restoration to those alone who continued to reside in the Dominion. It may, I am aware, be said that the claim of these now returned absentees… is materially affected by the provisions of Section 10 of the Indian Act, relating to foreign residence, but I would say that in my opinion, even were all these Indians amenable to the provisions of this section, which I will later show to be not the case, there is room for serious doubt as to whether that section alienates the individual right to a perpetual annuity guaranteed under the Treaty, for though the section provides for the forfeiture of right to membership in a Band, which is not a Treaty right, such forfeiture would not seem to lessen in the least the right of the individual to the annuity in perpetuity, the payment of which is obligatory and binding as an arrangement between individuals and the Crown, and not between a number of individuals collectively as a Band and the Crown. The right to annuity is then, apparently, an individual one in no degree dependent upon membership in a “Band” and therefore not affected by subsequent loss of such membership.24

23 See: Indian Act, R.S.C. 1876, c. 18, s. 72; Indian Act, R.S.C. 1880, c.28, s. 82; Indian Act, R.S.C. 1884, c.27, s. 12; Indian Act, R.S.C. 1886 c.43, s.118. 24 Montana Band, supra at para. 223

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53. In response, Deputy Superintendent General Reed plainly rejects Forget’s assertion that treaty annuities are an individual right, and states unequivocally that both the Department of Indian Affairs and the Department of Justice considered treaty annuities to be a collective right because only the Bands as collectives are a parties to the treaty:

…With regards to the doubts you express as to the provisions of Section 10 of the Act alienating the right of individuals to a perpetual annuity guaranteed them individually and not collectively as a Band, the Department may point out that it has the high authority of the Department of Justice to support the view that it has always entertained that an Indian who may, under the operation of the section quoted, forfeit rights of membership in a Band loses, among others, that to an annuity. … It seems clear that rightly or wrongly the Act does not disassociate, as you seem to think it should be done, other rights of membership from that to annuity, for if you turn to the Interpretation clauses in Section 2 you will find the expression “Band” means any tribe, band, or body of Indians who own or are interested in a Reserve, etc., etc. or who share alike in the distribution of any annuities or interest moneys for which the Government of Canada is responsible, from which it would appear that the right to annuities is peculiarly and essentially a condition of membership. Again, an examination of the Treaties seems to show that they are made with Indians essentially as tribes or bands, or rather with the Chiefs and Headmen as representing Bands, who were to become responsible to Her majesty for the faithful performance of their respective Bands of such obligations as should be assumed by them, and it is not apparent how Indians can be held to have been treated with individually instead of collectively with respect to any particular parts off the agreements made, nor if so, where the line is to be drawn.25 54. The forgoing analysis clearly demonstrates that that the Treaty 6 right to annuities is a collective right that was intended to be paid every year in perpetuity. It logically follows that the termination of treaty annuity payments to virtually all members of the Beardy’s and Okemasis Bands based solely on their membership in “disloyal” Bands resulted in significant losses to the entire Bands as a whole. Indeed, the Crown intended the loss of annuities to be felt by the Bands as a whole as a means of commanding loyalty.

e. Legislative Analysis: the 1952 Indian Act 55. The Crown argues that the individual nature of the right to treaty annuities is evidenced by subsection 67(1) of the 1952 Indian Act which provides for the diversion of “any annuity or interest money to which that Indian is entitled…” when it is established that a male Indian has deserted his family, has forced his family to desert him through his conduct or is separated from his family because of imprisonment. 26 The Crown argues that this legislative provision “further supports the proposition that a treaty annuity is a monetary benefit that accrues to the individual.”27

56. First, the Crown’s assertion that treaty annuities or interest moneys benefit individual Indians is facile. Virtually every treaty right would benefit individual Indians. Individual members of a band are entitled to the use and benefit of reserve lands set apart for the band as a whole. Individuals exercise treaty rights to hunt, fish and trap for food, social and ceremonial purposes by virtue of their membership in a band. None of this changes the fact that treaty rights are fundamentally collective rights that derive by virtue of membership in a Band that entered into Treaty.

57. Further, the Claimant submits that legislative amendments made by Parliament over 75 years after the signing of Treaty 6 and 60 years past the timeframe relevant to this specific

25 Affidavit of Avi Elena Scheibner, Exhibit D, pages 1–2. 26 Crown’s Memorandum of Law and Argument, at para. 20. 27 Crown’s Memorandum of Law and Argument, at para. 21.

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claim are of little to no relevance on determining the intentions of the parties to treaty with respect to the right to annuities. 28 To the extent that any legislation is relevant to determining the mutual of the parties and the nature of a treaty right, it is more apt to consider the provisions of the Indian Act in force when Treaty 6 was signed, and which remained in force during and after the Crown’s unilateral termination of treaty annuity payments to entire Bands. Specifically, in Montana Band the Federal Court examined the definition of a “Band” in the 1876 Indian Act (and other versions) which states:

The term “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...29 58. In examining this provision, Hansen J. of the Federal Court held as follows:

… I interpret the [1876] Indian Act definition of “band” to mean an aggregate of individuals or a group regarded as a single entity who meet the “reserve interest” part of the definition or who share alike in the distribution of any annuities or interest money for which the Government is responsible including treaty annuities.30 59. As the very definition of the collective (i.e. the “Band”) at the material time could be satisfied by “an aggregate of individuals or a group” which is entitled to “share alike in the distribution of any annuities”, the Claimant submits that this provides strong support for its position that the right to treaty annuities is collective in nature.

f. Soldier v. Canada 60. The Crown’s Application cites the Manitoba Court of Appeal’s decision in Soldier v. Canada (Attorney General) as support for its position that the right to treaty annuities is an individual right.31 The Claimant submits that that Soldier, a case which related to the interpretation of the treaty right to annuities and focused on the narrow issue of whether the action brought by individual members of Treaty 1 and Treaty 2 First Nations could be certified as a class proceedings against the Crown, is distinguishable on its facts from the present claim before the Tribunal. As such, this decision does not settle the issue of whether the right to treaty annuities is individual or collective in nature.

61. That said, if the Tribunal disagrees that Soldier is distinguishable on its facts, the Claimant would point out the following difficulties with the Crown’s arguments related to this decision. In its analysis, the Crown refers to a passage from Papaschase Indian Band 136 v. Canada (Attorney General) quoted in Soldier to advance the argument that because “any failure by the Crown to make annuity payments results in a loss to an individual,” that the right to treaty annuities is individual in nature.32

62. While the Claimant agrees that the failure to provide annuities results in individual losses, it is submitted that the Crown’s position ignores the fact that in the present case the withholding of annuities to virtually every member of the Beardy's and Okemasis Bands

28 See: Montana Band, supra at para. 452. 29 Indian Act, S.C. 1876, c. 18. Note: the definition of “band” found in the subsequent legislation in force within the relevant time period, namely, the Indian Act, 1880, S.C. 1880, c. 28, s. 2.1; the Indian Act, R.S.C. 1886, c.43, s. 2(d) - (f); and the Indian Act, R.S.C. 1906, c. 81, s. 2(d) remained unchanged (see: Montana Band, supra at para. 321). 30 Montana Band, at para. 454. Emphasis added. 31 Crown’s Memorandum of Law and Argument, at para. 18. 32 Crown’s Memorandum of Law and Argument, at para. 18.

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was intended as a punishment of entire Bands also resulted in considerable losses to the Bands as a collective. As stated above, even if treaty rights benefit individual Indians, this does not change the fact that the rights are essentially collective in nature; and, by extension, just because the Crown’s unlawful abrogation of treaty rights harmed individual Indians, does not change the fact that this conduct also resulted in losses to the collective Bands as a whole.

63. Indeed, most, if not all aboriginal and treaty rights have an individual component to them, but the jurisprudence is absolutely clear that these rights are nevertheless collective in nature. For example, while the right to hunt on unoccupied Crown lands is an established collective right, the actual act of exercising this right (i.e. hunting) is done by the individual.

64. As such, if the Tribunal were to accept the Crown’s position that any treaty rights which benefit individuals are not collective rights and draw this analysis to its logical conclusion, this would be tantamount to reversing over 100 years of Canadian jurisprudence on Aboriginal and treaty rights. The Claimant submits that this is an untenable result, and that forwarding this line of argument lies ill in the mouth of the Crown in light of the foundational principle that the honour of the Crown is always at stake in its dealings with Indian peoples.

65. Returning to the Crown’s analysis of Soldier in its Memorandum of Law and Argument, after stating that the Manitoba Court of Appeal “accepted the proposition that annuity payments are individual entitlements” and held that “…the right to this particular annuity belongs to each individual,” the Crown addressed the conceptual difficulties that arise from the fact that its submissions in Soldier argued that the right to treaty annuities was collective in nature.

66. In an effort to justify this apparent contradiction, the Crown suggests that there is a narrow technical distinction pursuant to which the right to annuities is collective when it comes to the interpretation of the nature of the right, but that it becomes an individual right in the context of enforcement:

In Soldier v. Canada (Attorney General) Canada took the position that only a band could seek a determination of the proper interpretation of a treaty annuity provision. This is because the interpretation of the annuity provision affects the band as a whole. This is entirely consistent with the Crown’s current position that, though only a band can seek to interpret a treaty annuity position [sic], the actual non- payment of an annuity results in an individual loss which can only be claimed by an individual band member.33 67. The Claimant submits that, at best, this argument relies on an overly technical distinction which is at odds with the principles of reconciliation which underlie Canada’s Specific Claims Policy and the fundamental notion that the honour of the Crown is always at stake in its dealing with Indian people. At worst, the Crown’s argument amounts to a cynical post hoc attempt to absolve the Crown from any liability in relation to its failure to fulfill its obligations under the terms of Treaty 6.

68. The semantic distinction underlying the Crown’s argument that its “position” in Soldier is “entirely consistent” with the position that it advances in the instant case becomes somewhat less clear upon an examination of the arguments it submitted when arguing

33 Crown’s Memorandum of Law and Argument, at para. 18 (footnote 4).

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Soldier before the Manitoba Court of Queen’s Bench.34 For example, the Crown’s Motion Brief of the Defendant filed in Soldier states:

Treaty rights belong to the collective. The Supreme Court of Canada has consistently found that rights derived from a treaty are collective rights, which belong to the band as a whole and not to individual band members. For example, in R. v. Sundown, the Supreme Court found that the band as a whole, and not any individual band member, had a collective right in a hunting cabin… Cory J. said that the interest in the hunting cabin derived from the treaty right to hunt, which included a right to build shelters as a reasonable incident to that right. He said that the right did not belong to Mr. Sundown or any individual member of the band, but to the band as a whole. And in another Supreme Court of Canada decision, R. v. Marshall, the Court noted that the community had a collective treaty right in regard to fishing. This right allowed Mr. Marshall, the appellant band member, to fish for eels for a moderate livelihood to support himself and his common-law partner. In Pawis v. R., a civil action similar to the one at bar, the issue of whether an individual has standing to assert a treaty right arose. In that case, four Ojibways who had been convicted of violating a provincial fishery regulation brought individual actions against the federal Crown for damages for breach of contract. They argued that they should have been exempt from the regulations because, otherwise, the Crown was breaching the terms of the Robinson-Huron Treaty. The Court dismissed the claims because the plaintiffs did not have standing to sue as individuals. The Court noted the Crown negotiated and entered into the treaty with the Ojibway Indians as a group. Although individual Indians were to benefit from the treaty, the treaty was made with the Ojibway people collectively. Accordingly, only the contracting party could bring the claim. Bone has cited The Queen v. Blackfoot Band of Indians et al. as authority for the proposition that he has standing to bring the action. However, it is important to note that although Blackfoot says that the treaty was made with Indians, and not the bands, the Supreme Court of Canada has held otherwise in R. v. Sundown. Further, the Court in Blackfoot noted that the Chiefs and Councilors of the five bands had the authority to treat for all of the individual Indians at the time that the treaty was negotiated and entered into… In the case at bar, Treaty No.2 was negotiated and entered into with the “Chippewa Tribe of Indians” by the Chiefs of the various bands in 1871. And when the annual payment under the treaty was increased from $3.00 to $5.00 per Indian in 1875, it was the Chiefs and Headmen, representing the bands of Indians who were parties to the treaty, who provided their written assent to the increase in annual payments…. In light of these authorities, including the Supreme Court of Canada decisions noted, the rights under Treaty No.2 belong to the band as a whole. They do not belong to Bone as an individual. The treaty annuity provision is a collective right that is exercised individually. Although they are collective rights, some treaty rights may, of necessity, be exercised by individual band members. Like the treaty right to hunt in Sundown and the treaty right to fish in Marshall, the annuity provision granted by Treaty NO.2 is an example of a collective treaty right exercised by individuals. Given that treaties were part of the British policy of dealing with the cession of Indian title (itself collectively held), the reasoning applied in Sundown and Marshall applies logically to other treaty rights, including the annuity provision. The fact that it must be exercised individually to have any meaning does not change the fact that the right itself is a group held right. This is especially so where the interpretation of the right is at stake. It is unlike the situation where an individual band member sues the Crown because the individual did not receive the annuity payment…35 69. The Claimant submits that the forgoing excerpt from the Crown’s arguments in Soldier suggest that the distinction between the entitlement to treaty annuities and the enforcement of a breach of the right was merely an aspect of the larger argument that the treaty right to annuities belongs to the collective notwithstanding its individual aspects.

34 Soldier v. Attorney General (Canada), 2006 MBQB 50; 2006 CarswellMan 82 (“Soldier (Trial)”). 35 Affidavit of Avi Elena Scheibner, Exhibit B, at paras. 25–35. [Emphasis added and citations omitted].

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This is reinforced by the qualified language (i.e. “especially so”) used by the Crown in its argument above.”36

70. For clarity, the Claimant is not asserting that the Crown did not advance the argument in Soldier that a Band is the proper party to advance a claim related to the interpretation of a treaty right, while an individual is the proper party to sue for non-payment.37 Rather, it is the Claimant’s position that Soldier is plainly distinguishable on its facts from the instant case. Furthermore, the Claimant submits that the clear distinction the Crown attempts to draw between the individual and collective aspects of the right to treaty annuities is a construct which is of dubious relevance to the Treaty Annuities Claim insofar as the Crown now seeks to place the emphasis on the individual nature of the right rather than the collective (as it did in Soldier) as justification for arguing that any claim to treaty annuities was personal in nature and could only by asserted by individual members of the Beardy's and Okemasis Bands who were deprived of annuities from 1885 - 1888. Since those individuals are no longer alive, no claim can be brought by the Claimant.

71. To be clear, the Treaty Annuities Claim is not a claim which simply seeks to interpret the Treaty 6 annuities clause. Nor is it a series of individual claims to sue the Crown for unpaid annuities. The Treaty Annuities Claim is a claim which alleges that the Crown’s unlawful and unilateral termination of the treaty annuity payments to all or virtually all of the members of the Beardy’s and Okemasis Bands in the aftermath of the Rebellion constitutes a breach of the Crown’s treaty, legal, trust, fiduciary, equitable and honourable duties resulting in substantial losses to those Bands as a whole.

72. In this context, the Claimant submits that the Crown’s technical and semantical arguments proffered in support of its position that the treaty right to annuities is collective when considered in the abstract but individual with respect to enforcement fundamentally mischaracterizes the Treaty Annuities Claim and is a disingenuous attempt to insulate itself from any recourse by Bands or individuals for a blatant breach of its treaty obligations.

g. Beatty v. the Queen and Papaschase Indian Band 136 v. Canada 73. The Crown argues that Beatty v. the Queen38 stands for the principle that a “First Nation cannot bring an action for an individual member’s treaty annuity entitlement, and cannot obtain such standing through an assignment.”39

74. The Crown further relies on obiter comments from the reasons of the Alberta Queen’s Bench in Papaschase Indian Band 136 v. Canada (Attorney General) 40 which were subsequently referred to in Soldier in support of its position that treaty annuities are individual or “personal” rights.41

36 Affidavit of Avi Elena Scheibner, Exhibit B, at para. 35. 37 Affidavit of Avi Elena Scheibner, Exhibit B, at para. 40. 38 Beatty v. The Queen, 2004 FC 647; 2004 CarswellNat 1316 (“Beatty”), [Book of Authorities, Tab 13]. 39 Crown’s Memorandum of Law and Argument, at para. 22. 40 Papaschase Indian Band 136 v. Canada (Attorney General), 2004 ABQB 655; 2004 CarswellAlta 1170 (“Papaschase (Trial)”), [Book of Authorities, Tab 14]. 41 Crown’s Memorandum of Law and Argument, at para. 19.

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75. The Claimant submits that both Papaschase and Beatty are clearly distinguishable on their facts from the Treaty Annuities Claim. In Papaschase, the main issue before the court was whether and when the Papaschase Indian Band had ceased to exist, and Beatty involved a claim regarding the assignability of a Crown debt and the application of the Financial Administration Act – neither of which considered in any significant way the nature and scope of the right to annuities under Treaty 6.

76. In answer to the Crown’s arguments, the questionable relevance of these decisions to the Tribunal’s assessment of the nature of the right to treaty annuities is perhaps best summarized by the Crown’s own arguments in its Responding Motion Brief of the Defendant submitted at trial in Soldier which reads as follows:

In Beattie… the Crown argued that the assignments were void on three grounds which related primarily to the Financial Administration Act and the non-transferability of treaty rights. Ultimately, the Court dismissed the actions because the assignments were invalid. As such, Beattie does not support Soldier’s position that treaty rights are individual and can be enforced by individuals. Similarly… to support his argument that individuals can sue to enforce treaty rights, Soldier refers to the obiter comments in Papaschase regarding a “personal aboriginal right” to receive annual treaty payments. (Note that the Court also refers to the right to hunt as a personal right, contrary to the Supreme Court of Canada’s findings. Notably, with hunting, fishing and other treaty benefits, while they can be exercised by individual members of the community, the legal right still belongs to the collective). It is important to note that the Court was without the benefit of arguments from the parties on this issue. Having said this, there may be circumstances where an individual can sue the Crown, and one of the ultimate benefits will be the payment of annuities. For example, where the Crown did not pay the sum to the individual because the individual was not registered as an Indian or a band member, the Crown agrees that the individual could sue to have the matter determined…42 h. Blueberry River Indian Band v. Canada 77. The Crown refers to Blueberry River Indian Band v. Canada (Department of Indian Affairs and Northern Development)43 to contrast the alleged “individual nature of a treaty annuity entitlement” with the collective nature of the interest in reserve land. 44 In response, the Claimant would point out that the Supreme Court has clearly and consistently held the majority of Aboriginal rights, particularly those derived from the text of the treaties, are collective in nature, including the right to reserve land, and reiterates that all Aboriginal and treaty rights, including the right to reserve land, benefit the individual Indians who are entitled to such rights to a certain extent.

78. As such, and for the reasons outlined above regarding the interpretation of Aboriginal and treaty rights, the Claimant submits that this exercise in “contrasting” contributes little to the Tribunal’s assessment of the collective versus individual nature of the right to annuities.

i. Collective Nature of the Relief Sought 79. The Crown also argues that the adjudication of the Treaty Annuities Claim is outside of the Tribunal’s jurisdiction because “[t]he Tribunal has no Jurisdiction to make awards that

42 Affidavit of Avi Elena Scheibner, Exhibit C, at para. 40–42. 43 Blueberry River Indian Band v. Canada (Department of Indian Affairs and Northern Development), (1999) 171 F.T.R. 91; 1999 CarswellNat 516. 44 Crown’s Memorandum of Law and Argument, at para. 25.

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bind individuals” and that he SCTA is “structured to compensate First Nations, not individuals.”45

80. The Claimant submits that the Crown’s arguments in this regard mischaracterize the nature of the relief sought by the Claimant. Specifically, as stated at paragraph 40 of the Declaration of Claim:

Relief Sought … the First Nation seeks compensation for: (a) Damages for the unilateral and unlawful termination of treaty annuity payments from 1885 to 1889; (b) Damages for the failure to pay annuities to the families attached to treaty annuity paylist ticket number 59 during the years of 1880‐1882, 1884 and 1890 to the present; (c) Compensation for Canada’s breach of its treaty, trust, fiduciary and equitable duties; (d) Equitable interest; (e) Such other damages or compensation as this Honourable Tribunal deems just.46

81. This passage clearly demonstrates, notwithstanding the Crown’s assertions to the contrary, that the Claimant is seeking a collective remedy for the Crown’s breach of its collective rights and the losses suffered by the Beardy's and Okemasis Bands as a whole. The relief sought by the Claimant would not require the Tribunal to make any awards that bind individuals.

j. No Right without a Remedy 82. As a final issue, the Claimant submits that if the Tribunal were to accept the Crown’s argument that the Treaty Annuities Claim is not within the Tribunal’s jurisdiction, which is expressly denied by the Claimant, the effect of such a finding could lead to an absurd result whereby the collective treaty right to annuities is effectively a right without a remedy.

83. The aphorism ubi jus, ibi remedium (“where there is a right, there is a remedy),47 is a principle which lies at the very core of the common law, and it is clear that a such a result cannot be countenanced, especially in the context of Aboriginal law where the honour of the Crown is at stake. Yet, this is precisely the effect that would result if the Tribunal accepts the Crown’s position that claims based on annuities are outside its jurisdiction.

84. When read together, the arguments asserted by the Crown above suggest that:

(a) Individuals Indians cannot be certified as a class to bring a claim for the Crown’s breach of the treaty right to pay annuities because treaty annuities are a collective right and only Bands have standing to assert such claims;

(b) Bands as collectives cannot assert a claim for failure to pay treaty annuities to an entire Band before the Tribunal (and presumably the courts) because only the individual members are entitled to enforce that right. Since the Crown enjoyed

45 Crown’s Memorandum of Law and Argument, at part VI and para.30. 46 Claimant’s Declaration of Claim, at para. 40. 47 See: Brian A. Garnere (Editor in Chief), Black’s Law Dictionary, 9th Ed. (St. Paul, MN: Thompson-Reuters Inc. 2009) at page 1876.

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immunity from civil suit until fairly recently and because those individuals are now deceased, there can be no recourse for this alleged breach through individual actions;

(c) Descendants of Individual Indians cannot bring such a claim because of the combined effect of limitation periods and the fact that a personal right to annuities cannot be assigned or otherwise vest in the estate of a deceased person.

85. If accepted, the Crown’s argument that only a Band may bring a claim for the interpretation of the treaty right to annuities, but that only an individual Indian advance a claim for the breach of this right, would also, in effect, result in a situation where the right to treaty annuities is a right without a remedy from both a modern and historical analytical perspective.

86. Taken together, the thrust of the Crown’s arguments cast serious doubt on whether any party would have standing or any practical recourse to pursue a claim against the Crown for the termination of treaty annuity payments, and that the Tribunal’s endorsement of the arguments proffered by the Crown in support of its Application to Strike could have the effect of allowing the Crown to unilaterally breach the sacred promises enshrined in the treaties with impunity; a result that simply cannot be countenanced by the rule of law, the Honour of the Crown, or fundamental principles of justice.

87. It is disingenuous to suggest that members of the Beardy’s and Okemasis Bands could have advanced claims for the unlawful termination of treaty annuity payments by virtue of their membership these Bands in the period immediately after the breach occurred. The historical record is clear that the members of the Beardy’s & Okemasis Bands were destitute before, after and during the Rebellion – a situation which was considerably exacerbated by the Crown’s termination of annuity payments to virtually every member of the Bands.48 Even when indexed for inflation, the fees associated with pursuing litigation against the Crown for $20 per claimant would have rendered it both impractical and impossible for those who were unilaterally disentitled to their annuity payments to pursue any remedy.

88. It is similarly cynical and impractical to suggest that a contemporary First Nation could bring a claim to determine entitlement to treaty annuities, which could then be followed by a series of individual claims – which cannot be certified as a class action by operation of the common law – to enforce a breach of this right against the Crown.

89. As such, the Claimant submits that the only realistic way of pursuing an action against the Crown for the collective damages caused by its unilateral termination of the collective treaty right to annuities to virtually every member of these Bands with no valid justification in law, is through a representative action brought by the Band on behalf of its members; which is exactly the type of claim contemplated by section 14(1) of the SCTA, and precisely one of the main objects for the SCTA and the creation of the Tribunal; namely, to promote reconciliation between First Nations and the Crown and to adjudicate the claims of First Nations.

90. In summary, and for all of the forgoing reasons, the Claimant respectfully submits that Treaty Annuities Claim clearly falls within the scope of section 14(1)(a) of the SCTA, and the Tribunal has jurisdiction to adjudicate the claim on its merits.

48 See: Affidavit of Avi Elena Scheibner, Exhibit A, generally, and specifically at paras. 67, 79, 142, 155 and 161.

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Relief Sought 91. In light of the foregoing, the Claimant respectfully requests a finding that the Treaty 6 right to annuity payments is collective in nature, and that consequently, the adjudication of a claim against the Crown for the unilateral termination of this collective right to nearly all members of the Beardy’s & Okemasis Bands from 1885-1888 falls within the jurisdiction of the Tribunal.

92. The Crown’s Application to Strike should be dismissed, with costs to be awarded in favour of the Respondent on a solicitor and own client basis.

Dated this 11th day of June, 2012 in the City of Calgary in the Province of Alberta. MAURICE LAW

______Ron S. Maurice Steve Carey Counsel for the Claimant

Maurice Law Barristers & Solicitors 800, 550–11th Ave SW Calgary, Alberta T2R 1M7 Phone: (403) 266-1201 Fax: (403) 266-2701 Email: [email protected] Our File: 106.02