Lac La Ronge Indian Band et al. v. Canada and Saskatchewan, 1999 SKQB 218

• Judge: Gerein, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: November 30, 1999
• Jurisdiction: Saskatchewan
• Citations: 1999 SKQB 218;(1999), 188 Sask.R. 1 (QB)

Lac La Ronge Indian Band v. Can. (1999), 188 Sask.R. 1 (QB)

MLB headnote and full text

Temp. Cite: [1999] Sask.R. TBEd. DE.029

Chief Miles Venne, and all of the Councillors 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) v. Her Majesty the Queen in Right of Canada and Her Majesty the Queen in Right of the Province of Saskatchewan (defendants)

(1987 Q.B. No. 2655; 1999 SKQB 218)

Indexed As: Lac La Ronge Indian Band et al. v. Canada and Saskatchewan

Saskatchewan Court of Queen's Bench

Judicial Centre of Saskatoon

Gerein, J.

November 30, 1999.

Summary:

The Lac La Ronge Indian Band sought reserve lands and monies pursuant to Treaty No. 6.

The Saskatchewan Court of Queen's Bench determined the matter accordingly.

Equity - Topic 3611

Fiduciary or confidential relationships - General principles - Crown - [See second Indians, Inuit and Métis - Topic 5507 and Indians, Inuit and Métis - Topic 6222 ].

Equity - Topic 3644

Fiduciary or confidential relationships - Breach of fiduciary relationship - Nondisclosure of - Effect of - [See Indians, Inuit and Métis - Topic 6222 ].

Equity - Topic 3654

Fiduciary or confidential relationships - Breach of fiduciary relationship - Reme­dies - [See second Indians, Inuit and Métis - Topic 5507 ].

Estoppel - Topic 1394

Estoppel in pais (by conduct) - Circum­stances where doctrine not applicable - To defeat positive statutory obligation or contravene public policy - Canada trans­ferred title to unoccupied Crown lands to Saskatchewan under the Natural Resources Transfer Agreement - Treaty No. 6 required Canada to set aside lands for Indian reserves - Saskatchewan provided lands to Canada to create reserves under the Agreement - Canada made representa­tions to Saskatchewan that an Indian land claim was fully and finally settled - The Indian Band claimed additional Treaty lands - Saskatchewan submitted that Canada was estopped from seeking more lands under the Agreement - The Saskatchewan Court of Queen's Bench rejected the submission - The Agreement had a statutory mandate - It could not be set aside through the actions of public servants - Canada's representations could not give rise to estoppel such as to suspend the operation of valid legislation - Saskatchewan remained bound by the Agreement - See paragraphs 356 to 362.

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - General - Where admission of hearsay necessary and evidence reliable - [See second Indians, Inuit and Métis - Topic 4410 ].

Evidence - Topic 7000

Opinion evidence - Expert evidence - General - [See second Indians, Inuit and Métis - Topic 4410 ].

Indians, Inuit and Métis - Topic 4409

Treaties and proclamations - General - Extinguishment - [See Indians, Inuit and Métis - Topic 6018 ].

Indians, Inuit and Métis - Topic 4410

Treaties and proclamations - General - Interpretation - An Indian Band claimed reserve lands under a treaty and adduced evidence of subsequent conduct to show the parties' intention - The Crown ob­jected, claiming that the evidence was too remote from the treaty's execution - The Saskatchewan Court of Queen's Bench held that the evidence should not be ex­cluded just because it was remote - The conduct of the successors to the signing parties could be admitted if it shed light on their intention when signing the treaty - It could also be admitted where it was simply an extension of the original conduct and reinforced it - On the other hand, if the conduct changed over time, that changed conduct was inadmissible because it was not an extension of the original conduct - See paragraphs 46 to 57.

Indians, Inuit and Métis - Topic 4410

Treaties and proclamations - General - Interpretation - An Indian Band claimed reserve lands under a treaty and adduced evidence of oral history respecting the meaning and intent of the reserve land clause - The Band also adduced evidence of historians - The Saskatchewan Court of Queen's Bench held that the oral history testimony was hearsay, but properly admis­sible where it met the requirements of necessity and circumstantial probability of reliability - The court nonetheless con­sidered the evidence with caution, holding that it was of limited value - The court also admitted the evidence of historians - The court rejected the submission that it would be abdicating its function by ad­mitting opinion evidence from historians - See paragraphs 58 to 67.

Indians, Inuit and Métis - Topic 4410

Treaties and proclamations - General - Interpretation - An Indian Band received a portion of their reserve entitlement under Treaty No. 6 - It claimed additional lands to complete the Treaty entitlement - The Treaty granted each Indian 128 acres of land, but did not fix a date for calculation of land entitlement - The Crown submitted that entitlement was based on the Band's population existing as of the first survey whereas the Band argued that it was based on the date of allotment - The Saskatche­wan Court of Queen's Bench held that the date of allotment should be used to calcu­late land entitlement - The court con­sidered the Treaty in its historical context -The Treaty was forward looking in ad­dressing the In­dians' benefits - The Crown could have specified a particular date if it so intended - The parties saw the creation of a reserve as a future event with no time constraints -They had intended that entitle­ment to re­serve lands would be calculated when the Crown's Treaty obli­gation was fulfilled - See paragraphs 68 to 163.

Indians, Inuit and Métis - Topic 4410

Treaties and proclamations - General - Interpretation - Treaty No. 6 granted Indian bands $1,500/year for ammunition and twine - An Indian Band subsequently executed an adhesion agreement which provided that the Band would obtain a like benefit, but the amount was qualified - At issue was whether a single $1,500 should be used for the benefit of all Indians or whether the Indians who subsequently adhered to the Treaty should receive a separate benefit - The Saskatchewan Court of Queen's Bench concluded that the Band was entitled to a separate benefit - If the adhesion agreement was intended to pro­vide for a sharing of the original benefit, the drafters could have so provided - In­stead, they spoke in terms of proportionali­ty and set out a method whereby the ex­penditure would be calcu­lated using $1,500 as the benchmark - Furthermore, sharing the original benefit would reduce the bene­fit for those who were parties to the Treaty - See paragraphs 164 to 167.

Indians, Inuit and Métis - Topic 5507

Lands - Reserves - Creation of - The Saskatchewan Court of Queen's Bench held that there was no single method of creating a reserve - However, there were certain things which were essential: the Crown had to make a deliberate decision to establish a reserve; there had to be consultation with the Indians; there had to be a clear demarcation of the lands; and there had to be some manifestation by the Crown that the lands would constitute an Indian reserve - See paragraphs 216 to 247.

Indians, Inuit and Métis - Topic 5507

Lands - Reserves - Creation of - The Lac La Ronge Indian Band submitted that lands at Candle Lake, Saskatchewan, were set aside as an Indian reserve pursuant to Treaty No. 6 - The Crown alleged that while consideration was given to creating a reserve at Candle Lake, no lands were actually set aside so as to create a reserve -The Saskatchewan Court of Queen's Bench held that an Indian reserve was not created at Candle Lake - The federal Crown had been interested in creating a reserve; it took steps to create a reserve; it intended to create a reserve; and it made a tentative decision to create a reserve, but did not create a reserve - The Chief Super­intendent of Indian Affairs had not au­thorized his deputy to create a reserve, only to ascertain suitability - The Depart­ment retained au­thority to proclaim the creation of a re­serve at Candle Lake, but failed to do so - Its intention was insuf­ficient - The Crown failed in its Treaty obligation, but there was no breach of fiduciary duty - Had there been, the ap­propriate remedy would be to set aside alternate lands as a reserve -See para­graphs 248 to 298 and 344 to 355.

Indians, Inuit and Métis - Topic 5507

Lands - Reserves - Creation of - An Indian Band submitted that the lands designated for an Indian school were originally set aside as an Indian reserve pursuant to Treaty No. 6 and remained so because they were never surrendered - The Treaty con­templated the creation of schools which would be located in reserves - The Crown asserted that the Department of Indian Affairs provided the school and operating funds, but never created a reserve by doing so - The Saskatchewan Court of Queen's Bench held that the school lands were not established as a reserve - While the Crown established a school, it neither intended on establishing nor took steps to establish a reserve - The Crown could and did act outside the Treaty's parameters by main­taining a school elsewhere than on reserve land - See paragraphs 299 to 343.

Indians, Inuit and Métis - Topic 5507

Lands - Reserves - Creation of - [See third Indians, Inuit and Métis - Topic 4410 ].

Indians, Inuit and Métis - Topic 5507.1

Lands - Reserves - Entitlement - [See third Indians, Inuit and Métis - Topic 4410 ].

Indians, Inuit and Métis - Topic 6018

Aboriginal rights - General - Extinguish­ment - Allocation of Treaty reserve land was approved by orders-in-council - An In­dian Band claimed ad­ditional land under the Treaty - The Prov­ince of Saskatchewan submitted that the orders-in-council ex­tinguished the Band's Treaty land entitle­ment - The Saskatchewan Court of Queen's Bench rejected the submission - The reference to extinguishment of land entitlement was found in the preamble rather than the operative portion of the orders-in-council - Furthermore, although Parliament could delegate authority, it had to be authorized by the enabling legislation - The Indian Act authorized the making of orders and regulations, but did not au­thorize the extinguishment of Aboriginal rights - Parliament retained unto itself the full authority to deal with those rights - See paragraphs 208 to 215.

Indians, Inuit and Métis - Topic 6222

Government - Band councils (incl. council­lors) - Powers - In 1964, an Indian Band Council passed a resolution settling a treaty land entitlement - The Band subsequently claimed reserve land under the treaty - The Crown submitted that the resolution consti­tuted a release - The Band submitted that it was not bound by the resolution - In determining the issue, the Saskatchewan Court of Queen's Bench held that s. 2(3) of the Indian Act imposed a division of powers between the Band and the Band council - Any power not conferred upon the council under s. 80 (now s. 81) rested with the Band - The Band council was not authorized to settle treaty land entitlement - That power rested with the Band - Ac­cordingly, the Band council was not empowered to pass the resolution and neither the Band nor its members were bound by it - Alternatively, the councillors were incapable of giving an informed consent to the resolution - The court com­mented that the Crown's failure to make full disclosure resulted in a breach of fiduciary duty - See paragraphs 191 to 207 and 348.

Indians, Inuit and Métis - Topic 6235

Government - Band councils (incl. council­lors) - Jurisdiction - Over members - [See Indians, Inuit and Métis - Topic 6222 ].

Statutes - Topic 1831

Interpretation - Intrinsic aids - Preamble -General - [See Indians, Inuit and Métis - Topic 6018 ].

Statutes - Topic 5515

Operation and effect - Delegated legisla­tion - Orders-in-council - Interpretation - General - [See Indians, Inuit and Métis - Topic 6018 ].

Statutes - Topic 5520

Operation and effect - Delegated legisla­tion - Orders-in-council - Validity - Whether purpose of order authorized by empowering statute - [See Indians, Inuit and Métis - Topic 6018 ].

Cases Noticed:

Saanichton Marina Ltd. v. Tsawout Indian Band (1989), 36 B.C.L.R.(2d) 79 (C.A.), refd to. [para. 39].

R. v. Horseman, [1990] 1 S.C.R. 901; 108 N.R. 1; 108 A.R. 1, refd to. [para. 39].

R. v. Sioui, [1990] 1 S.C.R. 1025; 109 N.R. 22; 30 Q.A.C. 280; [1990] C.N.L.R. 127; 56 C.C.C.(3d) 225; 70 D.L.R.(4th) 427, refd to. [para. 39].

R. v. Sparrow, [1990] 1 S.C.R. 1075; 111 N.R. 241; 56 C.C.C.(3d) 263; [1990] 4 W.W.R. 410; 46 B.C.L.R.(2d) 1; 70 D.L.R.(4th) 385, refd to. [para. 39].

R. v. Badger (W.C.) et al., [1996] 1 S.C.R. 771; 195 N.R. 1; 181 A.R. 321; 116 W.A.C. 321, refd to. [para. 39].

R. v. Taylor and Williams (1981), 34 O.R.(2d) 360; 62 C.C.C.(2d) 227 (C.A.), refd to. [para. 40].

R. v. Marshall (D.J.), Jr. (1999), 246 N.R. 83; 178 N.S.R.(2d) 201; 549 A.P.R. 201 (S.C.C.), refd to. [para. 40].

R. v. Horse; R. v. Standingwater, [1988] 1 S.C.R. 187; 82 N.R. 206; 65 Sask.R. 176, refd to. [para. 43].

R. v. Bartleman (1985), 12 D.L.R.(4th) 73 (B.C.C.A.), refd to. [para. 50].

R. v. Van der Peet (D.M.), [1996] 2 S.C.R. 507; 200 N.R. 1; 80 B.C.A.C. 81; 130 W.A.C. 81; 109 C.C.C.(3d) 1, refd to. [para. 58].

R. v. Khan (A.), [1990] 2 S.C.R. 531; 113 N.R. 53; 41 O.A.C. 353; 59 C.C.C.(3d) 92; 79 C.R.(3d) 1, refd to. [para. 61].

R. v. Smith (A.L.), [1992] 2 S.C.R. 915; 139 N.R. 323; 55 O.A.C. 321; 75 C.C.C.(3d) 257; 94 D.L.R.(4th) 590; 15 C.R.(4th) 133, refd to. [para. 61].

Wewayakum Indian Band v. Canada and Wewayakai Indian Band (1995), 99 F.T.R. 1 (T.D.), affd. (1999), 247 N.R. 350 (F.C.A.), refd to. [para. 65].

Roberts v. Canada - see Wewayakum Indian Band v. Canada and Wewayakai Indian Band.

R. v. Lavallee, [1990] 1 S.C.R. 852; 108 N.R. 321; 67 Man.R.(2d) 1; [1990] 4 W.W.R. 1; 55 C.C.C.(3d) 97; 76 C.R.(3d) 329, refd to. [para. 66].

R. v. Marquard (D.), [1993] 4 S.C.R. 223; 159 N.R. 81; 66 O.A.C. 161; 108 D.L.R.(4th) 47; 85 C.C.C.(3d) 193; 25 C.R.(4th) 1, refd to. [para. 66].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241; 114 D.L.R.(4th) 419; 89 C.C.C.(3d) 402; 29 C.R.(4th) 243, refd to. [para. 66].

Delgamuukw v. British Columbia, [1989] 6 W.W.R. 308 (B.C.S.C.), refd to. [para. 66].

Whitebear Band Council v. Carpenters Provincial Council of Saskatchewan and Labour Relations Board (Sask.), [1982] 3 W.W.R. 554; 15 Sask.R. 37 (C.A.), refd to. [para. 196].

R. v. Paul Indian Band and Alberta (At­torney General) and Canada (Attorney General), [1984] 2 W.W.R. 540; 50 A.R. 190 (C.A.), refd to. [para. 196].

Joe v. Findlay, [1978] 4 W.W.R. 653 (B.C.S.C.), refd to. [para. 197].

Mathias et al. v. Findlay - see Joe v. Findlay.

Custer and Morin v. Hudson's Bay Co. Developments Ltd. and Governor and Company of Adventurers of England Trading Into Hudson's Bay, [1983] 1 W.W.R. 566; 20 Sask.R. 89 (C.A.), refd to. [para. 197].

Ontario (Attorney General) v. Bear Island Foundation (1984), 15 D.L.R.(4th) 321 (Ont. H.C.), refd to. [para. 197].

Oregon Jack Creek Indian Band v. Ca­nadian National Railway (1989), 56 D.L.R.(4th) 404 (B.C.C.A.), refd to. [para. 197].

Nishga Tribal Council v. British Columbia (Attorney General), [1973] S.C.R. 313, refd to. [para. 210].

Calder v. British Columbia (Attorney General) - see Nishga Tribal Council v. British Columbia (Attorney General).

R. v. Gladstone (W.) et al., [1996] 2 S.C.R. 723; 200 N.R. 189; 79 B.C.A.C. 161; 129 W.A.C. 161, refd to. [para. 210].

Bosworth and Gravesend Corp., Re, [1905] 2 K.B. 426 (C.A.), refd to. [para. 218].

St. Catherine's Milling & Lumber Co. v. R. (1887), 13 S.C.R. 577, refd to. [para. 227].

Esquimalt & Nanaimo Railway Co. v. McLellan et al., [1918] 3 W.W.R. 645 (B.C.C.A.), refd to. [para. 228].

Hay River (Town) v. Canada (1980), 101 D.L.R.(3d) 184 (F.C.T.D.), refd to. [para. 230].

Canadian Pacific Ltd. v. Paul et al., [1988] 2 S.C.R. 654; 89 N.R. 325; 91 N.B.R.(2d) 43; 232 A.P.R. 43, refd to. [para. 231].

R. v. Nikal (J.B.), [1996] 1 S.C.R. 1013; 196 N.R. 1; 74 B.C.A.C. 161; 121 W.A.C. 161; 105 C.C.C.(3d) 481, refd to. [para. 232].

R. v. Lewis (A.J.) et al., [1996] 1 S.C.R. 921; 196 N.R. 165; 75 B.C.A.C. 1; 123 W.A.C. 1; 133 D.L.R.(4th) 700, refd to. [para. 233].

Ross River Dena Council Band v. Canada, [1998] 3 C.N.L.R. 284 (Yuk. Terr. S.C.), refd to. [para. 234].

Minnesota v. Hitchcock (1902), 185 U.S. 373, refd to. [para. 236].

Northern Pacific Railway Co. v. Wismer (1918), 246 U.S. 283, refd to. [para. 237].

Sac and Fox Tribe Of The Mississippi In Iowa and United States v. Les Licklider (1978), 576 F.2d 145, refd to. [para. 240].

Alaska Pacific Fisheries v. United States (1918), 248 U.S. 78, refd to. [para. 240].

United States v. Walker River Irrigation District et al. (1939), 104 F.2d 334, refd to. [para. 240].

Tee-Hit-Ton Indians v. United States (1955), 348 U.S. 272, refd to. [para. 240].

Sokaogon Chippewa Community v. Exxon Corp. (1992), 805 F. Supp. 680, refd to. [para. 240].

Guerin v. Canada, [1984] 2 S.C.R. 335; 55 N.R. 161; [1985] 1 C.N.L.R. 120; 13 D.L.R.(4th) 321, refd to. [para. 344].

Kruger v. Canada (1985), 58 N.R. 241; 17 D.L.R.(4th) 591 (F.C.A.), refd to. [para. 344].

Mitchell and Milton Management Ltd. v. Peguis Indian Band et al., [1990] 2 S.C.R. 85; 110 N.R. 241; 67 Man.R.(2d) 81; 3 C.N.L.R. 46, refd to. [para. 344].

Québec (Procureur général) v. Office national de l'énergie, [1994] 1 S.C.R. 159; 163 N.R. 241, refd to. [para. 346].

R. v. Adams (G.W.), [1996] 3 S.C.R. 101; 202 N.R. 89, refd to. [para. 346].

R. v. Côté (F.) et al., [1996] 3 S.C.R. 139; 202 N.R. 161, refd to. [para. 346].

Delgamuukw et al. v. British Columbia et al., [1997] 3 S.C.R. 1010; 220 N.R 161; 99 B.C.A.C. 161; 162 W.A.C. 161, refd to. [para. 346].

Frame v. Smith and Smith, [1987] 2 S.C.R. 99; 78 N.R. 40; 23 O.A.C. 84; 42 D.L.R.(4th) 81; 42 C.C.L.T. 1; 9 R.F.L.(3d) 225, refd to. [para. 347].

Baskerville et al. v. Thurgood, [1992] 5 W.W.R. 193; 100 Sask.R. 214; 18 W.A.C. 214 (C.A.), refd to. [para. 348].

Sivakumar v. Canada (Minister of Citizen­ship and Immigration) et al. (1996), 106 F.T.R. 136 (T.D.), refd to. [para. 360].

Husky Oil Ltd. v. Minister of National Revenue (Customs and Excise) (1991), 44 F.T.R. 18 (T.D.), refd to. [para. 360].

Johnson v. Ramsay Fishing Co. et al. (1987), 15 F.T.R. 106 (T.D.), refd to. [para. 360].

Statutes Noticed:

Natural Resources Transfer Agreement, 1930, Constitutional Act, 1930, Schedule, art. 10 [para. 357].

Treaty No. 6, generally [Appendix A].

Authors and Works Noticed:

Bartlett, Richard, The Establishment of Indian Reserves On The Prairies, [1980] 3 C.N.L.R. 3, p. 7 [para. 218].

Canada, Indian Treaties and Surrenders (1891) (Reprint 1992), vol. 2 [para. 20].

Driedger, Elmer A., Construction of Stat­utes (3rd Ed. 1994), p. 259 [para. 213].

Erasmus, Peter, Buffalo Days and Nights, c. 14, pp. 262 [para. 87]; 263 [paras. 87, 137].

Gover, Brian J., and Macaulay, Mary Locke, Snow Houses Leave No Ruins: Unique Evidence Issues in Aboriginal and Treaty Rights Cases (1996), 60(1) Sask. L.R. 47, generally [para. 66].

Henderson, William B., Evidentiary Problems In Aboriginal Title Cases (1991), Spec. List. L.S.U.C. 165, gen­erally [para. 66].

Henderson, William B., Litigating Native Claims (1985), 19 L.S.U.C. Gazette 174, generally [para. 66].

Hogg, Peter W., Liability of the Crown (2nd Ed. 1989), p. 190 [para. 360].

Morris, Alexander, The Treaties of Canada With The Indians of Manitoba and The North-West Territories (1880) (Reprint 1991), pp. 16 [para. 76]; 28 [para. 78];32 [paras. 77, 134]; 41, 42 [para. 80]; 45, 52 [paras. 82, 221]; 70 [para. 221]; 95 [para. 83]; 184 [para. 86]; 204, 205 [paras. 86, 222]; 218 [para. 222]; 250, 268 [para. 89].

Sopinka, John, Lederman, Sidney N., and Bryant, Alan W., The Law of Evidence in Canada (1992), pp. 216 to 220 [para. 61].

Counsel:

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.

This matter was heard before Gerein, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Saskatoon, who delivered the following judgment on November 30, 1999.