Treaty Lands and Crown Authority: The Impact of Delgamuukw, Badger, and Marshall in Ontario

• Author: Shin Imai
• Profession: Associate Professor, Osgoode Hall Law School
• Pages: 135-170

Badger, and Marshall in Ontario**

Shin

Imai***

A.

INTRODUCTION

In

1905

and

1906,

Duncan Campbell

Scott,

a

part-time poet

and

full-time

Deputy

Superintendent

General

of

Indian

Affairs,

travelled

to

northern

Ontario

with

a

copy

of

Treaty

No. 9 — the

James

Bay

Treaty.

He

visited

a

dozen

Hudson's

Bay

posts where

Cree

and

Ojibway

trappers

came

in

the

summer

to

trade.

Scott

used these

occasions

to

sign treaties.

He

recorded

his

version

of

some

of

these discussions

in an

official

report.

The

treaty that Scott brought with

him

stated that

the

Indians agreed

to

surrender their interest

in

130,000 square miles

of

their traditional ter-

ritory.1

In

return, each Indian received

an

initial payment

of $8,

followed

This paper

was

written

in

2000.

A

revised

and

updated version

of

this

paper,

which better

reflects

my

current thinking

on

this topic (particularly

in

relation

to the

application

of the

Sparrow

test)

has

been published

as

"Treaty Lands

and

Crown Obligations:

The

Tracts

Taken

Up'

Clause",

(2001)

27

Queen's

L.J.

1.

Associate Professor,

Osgoode

Hall

Law

School.

1

The

James

Bay

Treaty

(Ottawa:

Queen's

Printer, 1964)

at 19:

.

. . the

said Indians

do

hereby cede, release, surrender

and

yield

up

to the

government

of the

Dominion

of

Canada,

for His

Majesty

the

King

and His

successors

forever,

all

their rights titles

and

privileges

whatsoever,

to the

lands included within

the

following limits.

135

The Impact of Delgamuukw,

Treaty

Lands

and

Crown

Authority:

*

**

Shin

Imai

by

annual payments

of

$4.2

Reserves,

calculated

at one

square mile

for

each

family

of

five,

were allocated,

for a

total

of 524

square miles.

Not

a

word

of the

written version

of the

treaty

was

changed

through these

discussions.3

But

Scott's report records

a

First Nation ver-

sion

of the

discussions that

was

different

from

the

words found

in the

treaty.

He was in

Osnaburgh when

he met the

blind

chief

Missabay.

Missabay,

the

recognized chief

of the

band,

then

spoke, expressing

the

fears

of the

Indians

that,

if

they

signed

the

treaty, they would

be

com-

pelled

to

reside upon

the

reserve

to be set

apart

for

them,

and

would

be

deprived

of the

fishing

and

hunting

privileges that they

now

enjoy.

On

being informed that their

fears

in

regard

to

both

these matters

were groundless,

as

their present manner

of

making their livelihood

would

in no way be

interfered with,

the

Indians talked

the

matter over

among themselves,

and

then

asked

to be

given till

the

following

day to

prepare their reply. This request

was at

once acceded

to and the

meet-

ing

adjourned.4

2

On

many

reserves,

representatives

of the

Federal government still come each

year

to

hand

out the

annual treaty payment.

3

The

James

Bay

Treaty,

supra

note

1, at 3. As

Scott notes

in his

report,

the

Commissioners were

not

allowed

to

change

the

words

of the

treaty:

It

is

important also

to

note

that...

the

terms

of the

treaty were

fixed

by

the

governments

of the

Dominion

and

Ontario;

the

commission-

ers

were empowered

to

offer

certain conditions,

but

were

not

allowed

to

alter

or add to

them

in the

event

of

their

not

being accept-

able

to the

Indians.

4

Ibid,

at 5. Mr.

Justice

Cory

cites

examples

of

similar

promises

for

Treaties

Nos.

1, 4, and 8 at

paras.

55-57

in R. v.

Badger,

[1996]

4

W.W.R.

457,

37

Alta.

L.R.

(3d)

153,195

N.R.

1,105

C.C.C. (3d)

289,133

D.L.R.

(4th) 324,

2

C.N.L.R.

77,1

S.C.R.

771,181

A.R.

321,116

W.A.C.

321

[hereinafter

Badger,

cited

to

D.L.R.].

According

to the

report

of the

Commissioners

for

Treaty

No. 8,

quoted

at

para.

39:

There

was

expressed

at

every point

the

fear

that

the

making

of the

treaty

would

be

followed

by the

curtailment

of the

hunting

and

fish-

ing

privileges.

. . .

We

pointed

out...

that

the

same

means

of

earning

a

livelihood

would

continue

after

the

treaty

as

existed

before

it, and

that

the

Indians

would

be

expected

to

make

use of

them..

..

Our

chief

difficulty

was the

apprehension that

the

hunting

and

fishing

privileges were

to be

curtailed.

The

provision

in the

treaty

under

which ammunition

and

twine

is to be

furnished

went

far in

the

direction

of

quieting

the

fears

of the

Indians,

for

they admitted

that

it

would

be

unreasonable

to

furnish

the

means

of

hunting

and

136

Treaty

Lands

and

Crown

Authority

137

Scott

made representations that were unambiguous.

He

says that

Missabay's

fears

were

"groundless";

that their livelihood would

"in no

way"

be

interfered with.

The

words

in the

written treaty said something

quite

different.

There were promises made with respect

to

hunting,

fish-

ing,

and

trapping

on

lands outside

the

reserves,

but the

promises were

made

subject

to

limitations:

And

His

Majesty

the

King hereby agrees with

the

said Indians that

they shall have

the

right

to

pursue their usual vocations

of

hunting,

trapping

and

fishing throughout

the

tract

surrendered

as

heretofore

described,

subject

to

such

regulations

as may

from

time

to

time

be

made

by the

government

of the

country, acting

under

the

authority

of His

Majesty,

and

saving

and

excepting

such

tracts

as may be

required

or

taken

up

from

time

to

time

for

settlement, mining,

lumbering,

trading

or

other purposes [emphasis

added].5

In

this passage,

the

written treaty makes hunting, trapping,

and

fishing

rights subject

to two

exceptions. First,

the

rights

are

subject

to

what

are

referred

to as the

"regulations

of the

country". This limitation appears

to

give

the

government unfettered authority

to

pass regulations which

restrict

hunting

and

fishing

rights. Second,

the

exercise

of

these rights

is

subject

to

what

can be

called

the

"tracts taken

up"

limitation.

Hunting,

trapping,

and

fishing,

it

appears,

must cease when

the

land

is

required

for

the

settlers.

This paper will

focus

on the

"tracts taken

up"

clause. Treaties

stretching

from

Ontario through

the

Prairies

to

parts

of

British

Columbia

and the

Northwest

Territories

include identical

or

similar

clauses that place geographical limitations

on

hunting, trapping,

and

fishing

if

laws were

to be

enacted which would make hunting

and

fishing

so

restricted

as to

render

it

impossible

to

make

a

livelihood

by

such pursuits.

But

over

and

above

the

provision,

we

had

to

solemn-

ly

assure them that only such laws

as to

hunting

and fishing as

were

in the

interest

of

the

Indians

and

were found necessary

in

order

to

protect

the fish

and

furbearing

animals would

be

made,

and

that they would

be as free to

hunt

and fish

after

the

treaty

as

they would

be

if

they never entered into

it.

[emphasis added]

See

also

A.

Morris,

The

Treaties

of

Canada

with

the

Indians

of

Manitoba

and the

North-west

Territories

including

the

Negotiations

on

which they were

based

(Saskatoon:

Fifth

House Publishers, 1991).

The

James

Bay

Treaty,

supra

note

1 at 20.

5