- 1 - 1999 SKQB 218 Q.B. A.D. 1987 No. 2655 J.C.S. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: CHIEF MILES VENNE, and all of the Councillors 1999 SKQB 218 (CanLII) of the Lac La Ronge Indian Band, representing themselves and all other members of the Lac La Ronge Indian Band, and all members of the James Roberts Band of Cree Indians and Amos Charles Band of Cree Indians, and all of the lawful successors of those two Bands PLAINTIFFS - and - HER MAJESTY THE QUEEN In Right of Canada, and HER MAJESTY THE QUEEN in Right of the Province of Saskatchewan DEFENDANTS D. J. Kovatch and J. D. Jodouin for the plaintiffs M. R. Kindrachuk for the defendant, Her Majesty the Queen in Right of Canada P. M. McAdam for the defendant, Her Majesty the Queen in Right of Saskatchewan JUDGMENT GEREIN J. November 30, 1999 - 2 - CONTENTS PAGE A. Claims and Issues 2 B. Introduction 4 1999 SKQB 218 (CanLII) C. Land Allotments To The Lac La Ronge Indian Band 10 D. Interpretation Of Treaty No. 6 15 (1) Contentious Clauses 15 (2) The Law 18 (a) Rules of Interpretation 18 (b) Admissibility of Extrinsic Evidence 22 (i) Evidence of Conduct In Modern Times 24 (ii) Oral History 27 (iii) Historians 31 (3) The Reserve Land Clause - The Problem 34 (4) Provision For Reserve Lands In Other Treaties 37 (5) Subsequent Conduct In Calculating Reserve Lands 56 (6) Oral History 75 (7) Interpretation of Reserve Land Clause 77 - 3 - (8) Interpretation of Ammunition and Twine Clause 88 E. Band Council Resolution 90 (1) The Facts 92 (2) Authority of the Band Council 119 (3) Informed Consent 130 1999 SKQB 218 (CanLII) F. Extinguishment of Land Entitlement by Orders-in-Council 134 G. Reserve Creation 138 H. Candle Lake Lands 156 (1) The Facts 156 (2) Candle Lake Lands - A Reserve? 191 I. La Ronge School Lands 203 (1) The Facts 204 (2) La Ronge School Lands - A Reserve? 221 J. Fiduciary Relationship 234 K. Estoppel 241 L. Quantification of Plaintiffs’ Claims 244 - 4 - M. Conclusion 244 A. CLAIMS AND ISSUES [1] The claims of the plaintiffs are several and varied, but they essentially fit within these three categories: (1) Entitlement to lands and monies pursuant to a treaty agreement; 1999 SKQB 218 (CanLII) (2) Entitlement to certain lands situate in the vicinity of Candle Lake, Saskatchewan, because they were once set apart as an Indian Reserve; and (3) Entitlement to certain lands situate in the town of La Ronge, Saskatchewan, because they were once set apart as an Indian Reserve. I have concluded that the plaintiffs should succeed in respect to the first, but fail in respect to the other two. [2] Within the stated categories, there are many issues which the litigants describe in somewhat different terminology. I choose to describe them as follows: (1) What is the correct interpretation of the Reserve Lands clause of Treaty No. 6 in respect to the method to be employed in calculating land entitlement? - 5 - (2) What is the correct interpretation of the clause to provide ammunition and twine as contained in the adhesion to Treaty No. 6? (3) If Canada has not fulfilled its obligation under the Reserve Lands clause, is it relieved from doing so by a band resolution, dated May 8, 1964, of the Lac La Ronge Indian Band? (4) If Canada has not fulfilled its obligation under the Reserve Lands 1999 SKQB 218 (CanLII) clause, was the entitlement of the Lac La Ronge Indian Band extinguished by certain Orders-in-Council? (5) Has Canada fulfilled its obligation to the plaintiffs under the Reserve Lands clause and the clause to provide ammunition and twine? (6) What steps must be taken in order to create an Indian Reserve? (7) Were certain lands at Candle Lake, Saskatchewan, set apart as an Indian Reserve? (8) Were certain school lands in the Town of La Ronge, Saskatchewan, set apart as an Indian Reserve? (9) Did Canada owe a fiduciary duty to the Lac La Ronge Indian Band; and if so, did they fulfill that duty? - 6 - (10) If the Lac La Ronge Indian Band is entitled to additional Reserve Land, is Canada estopped from obtaining additional land from Saskatchewan by reason of paragraph 10 of the Natural Resources Transfer Agreement? [3] Three further issues were raised and I describe them as follows: (1) What was the effect of a “reservation” noted in the records of the 1999 SKQB 218 (CanLII) Department of the Interior, of the Government of Canada, on March 20, 1930? (2) Did the lands at Candle Lake pass to the Province of Saskatchewan through the operation of the Natural Resources Transfer Agreement? (3) If the lands at Candle Lake did pass to the Province of Saskatchewan, were they subject to a trust or other interest in favour of the Lac La Ronge Indian Band? As I have concluded that an Indian Reserve was never set aside at Candle Lake, there is no need to determine these three issues and I refrain from doing so. B. INTRODUCTION [4] In parts of Canada there has been contact between Indians and non-Indians for about five hundred years. It has been so in the prairies for at least one hundred and fifty years. Absent a few exceptions, the two peoples have co-existed in peace and while - 7 - harmony has not always been present, disputes were generally resolved without recourse to armed conflict. Peaceful co-existence between the two disparate peoples was achieved in part through the negotiation and execution of various treaties. These came into existence as Europeans gradually moved across this country and the treaties were some seventy in number. [5] The earliest treaty was in 1640 and is commonly called the Two-Row Wampum Treaty. It was between the five nations of the Iroquois and the Dutch Crown at 1999 SKQB 218 (CanLII) New Amsterdam, which is now New York City. As long ago as then, land and its use was a subject of negotiation. At that time the Iroquois surrendered their beaver hunting grounds north of Lakes Ontario and Erie. On two later occasions, in 1701 and 1726, they further surrendered their beaver hunting grounds to the British Crown. [6] Between 1725 and 1794 there were nine treaties between the British Crown and the Mi’Kmaqs, Abenakis and Malecites along the Atlantic Seaboard. All of these treaties addressed the subject of peace and friendship and had that as their purpose. They did not address the subject of land, its use or its surrender. They did confirm the right of the Indians to hunt and fish throughout the territory. [7] The Hurons entered into treaties with the British Crown in 1760 and 1764. The first guaranteed the Indians free passage back to their home lands and the right to practise their religion and customs. The second was a treaty of peace and friendship. [8] Following the American Revolution there was a great influx into Canada of the United Empire Loyalists. They had to be accommodated and land made available. Here truly began the process of land surrender. There were twenty-nine treaties executed between 1764 and 1862. They speak mainly of the surrender and extinction of Indian - 8 - title to the land; although in some there was provision for monetary payments, the setting aside of Reserves and the protection of fishing and hunting rights. [9] In 1850 the Robinson Superior Treaty and the Robinson Huron Treaty came into existence. They followed the directives of the Royal Proclamation of October 7, 1763, and by those treaties the Indians surrendered title to the land which stretched from the shores of Lake Huron and Lake Superior up to the height of land which separated the waters flowing into Hudson’s Bay from those flowing into the Great Lakes. The two 1999 SKQB 218 (CanLII) treaties also provided for annuities; guaranteed hunting and fishing rights to the Indians; and contained schedules setting aside identified land for Indian Reserves. [10] Between 1850 and 1854, fourteen treaties were entered into on Vancouver Island. They were primarily concerned with the surrender of Indian title to land so that settlement could take place and commercial development proceed. [11] That then brings us to the numbered treaties. Confederation took place in 1867. Settlement of the West was moving ahead. The railroad was being constructed along with the telegraph system. Manitoba was created a province in 1870 and some of the Indians in that territory were less than satisfied with the situation and wanted a treaty. As a result, Treaty No. 1 was negotiated and concluded on August 3, 1871 with the Chipewayans and Swampy Crees. In this document, as in all of the numbered treaties, the Indians did “. .cede, release, surrender, and yield up to Her Majesty the Queen. .” all the lands encompassed within the area described in the treaty. There was provision to create Reserve Lands of 160 acres per family of five; to pay annuities of $3.00 per person; to provide schools; and to provide agricultural implements. A gift of $3.00 was to be paid to each Indian in extinguishment of all claims. - 9 - [12] Treaty No. 2 was executed less than three weeks later, on August 23, 1871. It contained provisions similar to those of Treaty No. 1. Shortly after the document was executed, disagreement arose as to what had been promised to the Indians as opposed to what was actually written into the treaty. In time a memorandum was created listing the things that had been promised, but not included in the document.