COURT OF APPEAL FOR ONTARIO

DATE: 20240227 DOCKET: C63194

Pepall, Lauwers and Harvison Young JJ.A.

BETWEEN

Chief John Fletcher, Jacqueline Fletcher and Roy Gideon on their own behalf and on behalf of all members of the Missanabie Cree First Nation

Plaintiffs (Appellants)

and

His Majesty the King in Right of Ontario and the Attorney General of Canada

Defendants (Respondents)

Counsel: Ron S. Maurice, Ryan M. Lake, Laura Schaan, and William B. Henderson, for the appellants Manizeh Fancy, Richard Ogden, and Catherine Ma, for the respondent His Majesty the King in Right of Ontario Janet Brooks, Cameron Fiske, Madeline Torrie, and Maria Khan, for the respondent Attorney General of Canada

Heard: March 7-9, 2023

On appeal from the judgment of Justice Thomas R. Lederer of the Superior Court of Justice, dated December 16, 2016, with reasons reported at 2016 ONSC 5874.

Harvison Young J.A.:

A. OVERVIEW

[1] The issue in this appeal is narrow. According to Treaty No. 9 (the “Treaty”), which the appellants, the Missanabie Cree First Nation (the “Missanabie Cree” or “MCFN”), entered into in 1906, the MCFN became entitled to reserve lands the size of which was to be calculated based on a formula not exceeding one square mile for each family of five. Although MCFN members at Missanabie received Treaty annuities and adhered to the Treaty as of 1906, no reserve was allocated at that point for reasons that are not clear from the historical record.

[2] Since then, the Missanabie Cree have engaged in a long course of action to right this historical wrong. This has included commencing this action, as well as years of negotiation. That said, the parties have worked together to manage the litigation and separate the hearing of the issues into phases.

[3] On April 12, 2011, the parties consented to an order setting out a threshold issue for the phase of litigation that is the subject of this appeal. In that order, the parties agreed that the MCFN has been a party to Treaty No. 9 since 1906, that a reserve should have been set aside for the Missanabie Cree shortly after the making of the Treaty, and that a reserve should now be set aside for the MCFN pursuant to the Treaty.

[4] The population of the MCFN has increased since 1906. The threshold question before this court is: as of what point in time (the “crystallization date”) should the population of the MCFN be determined for the purposes of calculating the size of the reserve under Treaty No. 9? In other words, should the calculation be based on the size of the Missanabie Cree population as at the date that the appellants entered into the treaty, or as it has become?

[5] While the issue is narrow, the historical context of the Treaty and the circumstances under which the MCFN did not receive any reserve lands in 1906 is more complex and is relevant to the interpretation of the Treaty and its application to the MCFN.

[6] At trial, the expert historical evidence was largely uncontested. The trial judge found the common intention of the parties, based on the text of the Treaty and the historical context, was that the reserve land entitlement was to be calculated based on the population in 1906 at the time the Treaty was entered into. The MCFN appeals this decision, arguing that the trial judge erred in his analysis of the crystallization date, the common intention of the parties, and the honour of the Crown.

[7] For the reasons that follow, I conclude that this appeal must be dismissed.

[8] There are also a number of related ancillary issues before this court that will be addressed below. These ancillary issues arise as a result of the Settlement Agreement that the Crown in Right of Canada (“Canada”) reached with the MCFN following the trial (the “Settlement Agreement” or the “Agreement”). Canada moved to admit the Agreement and related documents as fresh evidence, and to continue the sealing order that is in force. Canada also seeks the dismissal of the MCFN action as against it for abuse of process. I would admit the fresh evidence, order that the sealing order be lifted, and dismiss Canada’s request that the appeal against it be dismissed as an abuse of process.

[9] I first describe the procedural history which set the issue for determination by the trial judge, then turn to the background facts.

B. THE PROCEDURAL HISTORY OF THIS APPEAL

[10] In 1993, the MCFN submitted a specific claim to Canada for reserve lands. In 1995, the appellants commenced this action. Their claims are as pleaded in their Amended Fresh as Amended Statement of Claim in April 2011. They seek two main forms of relief: (i) a declaration that, pursuant to Treaty No. 9, Canada and Ontario are obligated to set apart reserve lands for them based upon the population of the Missanabie Cree First Nation on the date of declaration; and (ii) damages, on a joint and several liability basis, against Canada and Ontario in the amount of $160,000,000, comprised of $50 million each for breach of the Treaty, breach of fiduciary duty, and special damages, plus $10 million as punitive damages. This includes damages for loss of use of a reserve and damages associated with the Crown’s granting of mineral rights to the land and limiting hunting and trapping rights.

[11] The action was placed in abeyance to facilitate negotiations under Canada’s Specific Claims Policy, which requires that active litigation be stayed while negotiations continue. Canada accepted the claim for negotiation under the Specific Claims Policy in 1996 and Ontario accepted the claim for negotiation under the same process in 2000. Ontario withdrew from negotiations in 2005 and negotiations between Canada and the MCFN were unsuccessful, leading the appellants to revive the litigation.

[12] In 2010, Canada and Ontario issued their defences and cross-claimed against each other. Ontario claimed that “while Ontario has the ability to make appropriate public lands available for the establishment of a reserve, the liability for the cost of providing such lands, the value of such lands and any damages or other liability resulting from the fact that the Plaintiffs were not provided with a reserve in 1906 or pursuant to subsequent requests made by the Plaintiffs is Canada’s and Canada’s alone.” Canada similarly sought an order “that any and all relief and costs to which this Court might find the Plaintiffs entitled in the main action is relief and costs against Ontario only or, in the alternative, an order directing Ontario to indemnify Canada in the amount of any relief and costs for which this Court finds Canada liable to the Plaintiffs; and its costs of this action.”

[13] In 2010, Ontario and the MCFN also reached an agreement to convey 15 square miles of land to the MCFN, which were transferred in 2014 (and recognized by Canada as a reserve in 2018). This agreement is to be set off against Ontario’s liability to provide land for the setting apart of the reserve found in this case and against any damages if applicable.

(1) The Sproat Order

[14] On April 12, 2011, Master Sproat issued an order (the “Sproat Order”) on consent of the appellants and the respondents which set out, as agreed facts, that the MCFN has been a party to Treaty No. 9 since 1906; that the terms of Treaty No. 9 contain the following promise regarding the setting aside of reserves for the First Nation parties to the Treaty; that a reserve should have been set aside for the benefit of the Missanabie Cree shortly after the making of the Treaty; that no reserve has yet been set aside for them; and that a reserve should now be set aside for the Missanabie Cree pursuant to Treaty No. 9. However, the parties disagreed as to the size of the reserve the MCFN are entitled to. As a result, the order severed a “threshold issue” from the balance of the litigation, with the first phase to be a trial to answer two questions:

(a) As of what point in time (the “crystallization date”) should the population of the MCFN be determined for the purposes of applying the reserve entitlement formula stipulated by Treaty No. 9?

(b) What was or is the population of the MCFN at the point in time ultimately determined to be the answer to question (a)?

[15] The remaining issues – including any determinations of liability, damages, and crossclaims – were stayed pending the outcome of the threshold issue.

(2) The Himel Order

[16] In 2014, Himel J. made an order further specifying the first issue to be tried solely as question (a) in the Sproat order. This issue proceeded to trial in 2016 and is the subject of this appeal.

C. BACKGROUND FACTS

[17] The history of Treaty No. 9 and the circumstances that have led to this litigation are critical to an understanding of the issues at the heart of this litigation. Evidence on the history and background was led by the three expert witnesses chosen by the parties who produced a joint report with the facts that they agreed upon. They were called together, as a panel, to give evidence at trial. The background set out in these reasons, unless otherwise indicated, is taken from their evidence (as well as fresh evidence admitted on appeal, which will be discussed later).

[18] Missanabie is located just north of the “height of land” separating the Lake Superior and James Bay watersheds, which also separates the lands covered by the 1850 Robinson-Superior Treaty to the south and Treaty No. 9 to the north. The headwaters of both the Michipicoten River, which flows into Lake Superior, and the Missinaibi River, a tributary of the Moose River that flows into James Bay, are in the immediate vicinity of Missanabie.

[19] The Canadian Pacific Railway ran through the height of land separating the watersheds, between Dog Lake and Crooked Lake, and was completed in 1885. The settlement which would come to be known as Missanabie was established adjacent to the railway just west of where it crossed Dog Lake. The Ojibway used and occupied the Michipicoten River, south of the height of land, and the Cree and Ojibway used and occupied the region to the north.

[20] There is evidence that the Cree who gathered at Missanabie originated from families whose hunting grounds were in the Moose River Basin and had traded primarily at Moose Factory.

[21] By the late nineteenth century, however, the lives of First Nation peoples living north of the height of land were becoming increasingly disturbed by the completion of the Canadian Pacific Railway and attendant settlement along the line. Beginning in the mid-1880s and extending to the early 1900s, First Nations asked for a treaty. Their game was disturbed, their livelihoods were disrupted, and their lands were trespassed upon. They sought annuities and land reserved for them and protected from further encroachment. At the same time, some were moving closer to the railway line in order to better access markets.

[22] Beginning in the mid-1880s, various First Nations made requests of the Crown to sign a treaty in the area, in response to their concerns related to the arrival of the railway and accompanying development. Eventually, a decision was taken by the Crown to pursue a treaty following the numbered treaty model rather than as an extension of the Robinson treaties. It was thought that 2,365 Indigenous people would be involved in such a treaty. For the purposes of financial planning, the population was estimated at 3,000. It was estimated that approximately 100 were staying in the vicinity of Missanabie.

[23] In 1894, Canada and Ontario had agreed that any future treaties in the province would require concurrence from Ontario. The two Crowns differed on the degree to which the choice of reserve lands would be left to First Nations, with Ontario seeking to have final decision-making authority. Through discussions, the two Crowns agreed to include the following provision in Orders-in-Council, which the federal government determined would still give First Nations a voice in the selection of reserves through a Treaty Commission, which was passed in July 1905:

…[T]he setting apart and location of reserves … not greater than one square mile for each family of five, or in like proportion, at points to be chosen by the Commissioners negotiating the said Treaty, one of the said Commissioners to be appointed by the Lieutenant-Governor of Ontario in Council, and said selection to be subject to the approval of the Lieutenant-Governor of Ontario in Council.

[24] As expressed by the three historians, the clear intention was to have the locations of the reserves “arranged” by agreement at the time that the Commissioners met with the First Nations. These pre-arrangements required obtaining a close approximation of the band population. Given that pay-lists had to be created to distribute the initial gratuities to be paid to First Nation members as part of the Treaty, upper limits of square mileages could also be determined at the time of the Treaty and suitable reserve size agreed to by the parties.

[25] The three Commissioners appointed were Duncan Campbell Scott, Samuel Stewart, and Daniel George MacMartin (the latter as Ontario’s representative) (“the Commissioners”). The Treaty expedition stretched over two summers, from 1905 to 1906. The expert witnesses agree that Missanabie was identified as one of the locations to be visited with a view to negotiating a treaty, although the schedule had to be modified several times.

[26] The Commissioners adopted two different approaches for including First Nation peoples in Treaty No. 9. The first method, “to make treaty”, involved holding a treaty council with selected First Nation leaders and representatives of a population assembled at a post, having the treaty explained and interpreted, answering any questions, obtaining a signed adhesion, holding a feast, having a treaty chief and councillors “elected”, providing the chief with a flag and copy of the treaty, and selecting a reserve for the treaty band through consultation with First Nation leaders. The three historians referred to this method of adhering to the Treaty as the “predominant practice”. This practice was followed at Osnaburgh, Fort Hope, Marten Falls, English River, Fort Albany, Moose Factory, and New Post in 1905 and at Abitibi, Matachewan, Mattagami, Flying Post, New Brunswick House, and Long Lake in 1906.

[27] The second method, “meet and pay”, as reflected in the Agreed Statement of Facts, explicitly dispensed with the signed adhesion. This method focused on establishing pay-lists, explaining what acceptance of the money by First Nation members entailed, and distributing annuity payments. As a term of the Treaty, each member of a band that made treaty, separate from the granting of a reserve and hunting rights, received a payment of $8.00 and the promise of an annuity of $4.00 per year. “Meet and pay” meetings were held with First Nation populations at Biscotasing, Chapleau, Missanabie, and Heron Bay. Both the expert evidence and the Agreed Statement of Facts indicate that both forms of adherence comprise inclusion in the Treaty.

[28] In the 1905 expedition, the Commissioners “made treaty” with First Nations representatives at all but one location, Abitibi, where they arrived too late and had to return the next year. Similarly, in the 1906 expedition, formal adhesions were obtained at most of their stops. The records of the Commission are not consistent, but it appears that reserves were set aside and, usually, sized based on the formula of one square mile for every family of five or in like proportion.

[29] For 1906, the Commissioners reported holding meetings for the purpose of distributing gratuities to family heads (i.e., “meet and pay”) with First Nation populations at Biscotasing, Chapleau, Missanabie, and Heron Bay. Neither their diaries nor their joint report record that they met with leaders or selected representatives at any of those locations (including Missanabie). There is also no record that full explanatory treaty councils were held, or that signed adhesions to the Treaty were sought. No reserves were selected for the First Nation members they met at these locations with the exception of two small reserves established in response to requests by Ojibway and Cree at Chapleau, which did not conform to the Treaty No. 9 entitlement formula.

[30] The Commissioners had made treaty with the First Nations at Moose Factory in 1905, which is located on James Bay (far removed from Missanabie). In 1906, they made two stops at Missanabie, and 62 people were paid their annuity as “Moose Factory Crees at Missanabie”, but the Moose Factory reserve was not enlarged to account for them. (In fact, the Commissioners had asked for and likely received the pay-list for Moose Factory from the preceding year, so the historians were of the opinion that the Commissioners were likely aware that there was no duplication of names between the 1906 pay-list for the Moose Factory Cree at Missanabie and the Moose Factory Band as paid in 1905.)

[31] The key point is that First Nations at Missanabie were not treated as their own band and were not provided with a reserve.

[32] There was no record of either Ojibway or Cree requests for reserves at Missanabie at the time of Treaty. But to the extent that Cree absent from Moose Factory were residing at various points north of the railway, including Missanabie, they were not accounted for in the sizing of the reserve at Moose Factory.

[33] There was conflicting Commission evidence on First Nations’ understandings of the Treaty terms, and particularly the ability to make adjustments to their reserves at later dates.

[34] In 1907, the 16 reserves selected through the Treaty signings were approved and confirmed in an Order-in-Council. The reserves were then surveyed between 1907 and 1913. Officials of the Department of Indian Affairs directed the surveyors to set out the lands as described in the Schedules and to employ band members to assist in the surveys. The surface area of the reserves corresponded to those specified in the Schedules of Reserves attached to the Treaty, with only a few exceptions. One such exception was a reserve set aside for the “Moose Factory Crees at Chapleau”, which was augmented to account for land that was underwater. This change was approved by Order-in-Council.

[35] The three historians comment that a comparison of the reserve areas described in the Schedules of Reserves and those surveyed demonstrates that, aside from Fort Hope, the latter were derived from the former. This indicates that the size of the reserves was based on the known or recognized population at the time of Treaty. There was no evidence that the sizes of the reserves were adjusted to account for any population changes between the time of the Treaty and the time of the survey. The size of the reserves was fixed by the Treaty, to be calculated from the population at the time of the Treaty. With Fort Hope, the Commissioners had determined that the population at the time of Treaty could not be determined with certainty, and the Crown eventually requested a survey to confirm the reserve in 1909.

[36] There were also further adhesions to the Treaty by other First Nations, in 1929-30 (and later), and adjustments were made in reserve size for unknown reasons, or where groups splintered or amalgamated. In some cases, new reserves combined a portion of the acreage to which the original band was entitled under the Treaty description with additional quantities of land provided for “socio-economic” reasons.

[37] Following 1906, while the Cree at Missanabie were predominately identified as “Moose Factory Crees” in pay-lists until 1937, and on census returns until 1949, a comparison of the pay-lists for the Cree at Missanabie with those at Moose Factory shows that the two groups were always recorded as discrete and separate populations. There was no overlap or duplication between family heads appearing on the Moose Factory and Missanabie pay-lists. For the annuity payments, they were treated as distinct groups. From 1937 onwards, the Missanabie pay-lists dropped the modifier, “Moose Factory”, and began referring to the group simply as “Missanabie Cree(s)”. At various times, some Missanabie Cree were paid at other locations. However, the pay-lists since 1955 do not identify localities of payment and refer simply to “Missanabie Cree Band”.

[38] While there was limited evidence of whether the Missanabie Cree group saw themselves as a distinct, politically autonomous band at the time of Treaty, by the late 1920s there was some evidence that some self-ascribed as members of a “band”. The three historians concluded that there is insufficient evidence to determine how the Missanabie Cree self-identified and self-ascribed during the years shortly before and at the time of Treaty No. 9 in 1906. Documentary evidence from other observers at the time was equivocal: while some ascribed a Moose Factory identity to the Missanabie Cree, others implied they were a distinct group. There are indications of geographical clustering at Missanabie that suggest, at the very least, that the Cree had a sense of community distinct from their Ojibway neighbours.

[39] Between 1951 and 1998, there was some confusion as to whether the Missanabie Cree formed a band under the Indian Act, R.S.C. 1985, c I-5, as, among other issues, they did not have any members residing “on reserve” (because there was no reserve), and for a time the reserve for the Michipicoten Band (Ojibway) south of the railway was misattributed to the MCFN. This error was only finally clarified in 1998.

[40] There was also evidence that the Missanabie Cree had a sense of their rights under the Treaty. The evidence includes, for example, a petition and various letters asking for recognition of hunting rights in the 1920s. The first documented request for a reserve was in 1915 and again in 1929 and 1936. These requests were not fulfilled.

[41] The trial judge found that “what seems clear is the general acceptance that there were Crees at Missanabie who were generally accepted as a group with a communal society, which is to say, they were accepted and identified as a band.”

D. THE TRIAL JUDGE’S DECISION

[42] In approaching the interpretation of the reserve clause and looking for a common intention, the trial judge relied on the framework for the inquiry articulated by the Supreme Court of Canada in R. v. Marshall, 1999 SCC 665, [1999] 3 S.C.R. 456, paras. 82-83. The inquiry encompasses two steps:

(1) An examination of the words of the treaty to determine their ‘facial’ [at face value] meaning having regard to any patent ambiguities and misunderstandings that may have arisen from linguistic and cultural differences. This exercise will lead to one or more possible interpretations of the clause. The objective at this stage is to develop a preliminary, but not necessarily determinative, framework for the historical context inquiry to follow.

(2) The meaning or different meanings which have arisen from the wording of the treaty must be considered against the treaty’s historical and cultural backdrop. A consideration of the historical background may suggest latent ambiguities or alternative interpretations not detected at first reading. Faced with a possible range of interpretations, courts must rely on the historical context to determine which comes closest to reflecting the parties’ common intention. [Footnotes omitted.]

(1) Step One: The reserve clause and the common intention

[43] The trial judge found that the reserve clause of Treaty No. 9 showed a common intention that the size of the reserve would be determined as at the time of Treaty, not subsequently.

[44] The intention was that reserves were to be agreed to when the Treaty was made. This was the only time the Commissioners, the Chiefs and the Headmen were to meet, and there were no other “Commissioners” involved in the Treaty No. 9 process to which the reserve clause could have been referring. This is confirmed by the requirement that the reserves were to be as described in the “Schedule of Reserves” attached to the Treaty. Later, but not much later (“hereafter”), the boundaries of the reserves would be defined by survey, which the trial judge took to mean “shortly after” or within a reasonable period of time. This intention was made clear by the negotiation between the two Crowns on the Treaty process, including that the Commissioners and First Nations would agree as to the location of the reserves. As the three historians concluded:

Prior to the departure of the Treaty Commission on June 30, 1905, the clear intention on the part of both Canada and Ontario was to have the locations of the reserves ‘arranged’ by agreement at the time the Treaty Commissioners met with the First Nations.

[45] The 16 reserves named in the 1905 and 1906 Schedules of Reserves attached to Treaty No. 9 were surveyed between 1907 and 1913. Officials of the Department of Indian Affairs directed the surveyors to set out the lands as described in the Schedules and to employ band members to assist in the surveys. The three historians commented that a comparison of the reserve areas described in the Schedules of Reserves and those surveyed demonstrates that, aside from Fort Hope, the latter were derived from the former.

[46] The trial judge noted the three historians testified that:

[T]he clear intention was to have the locations of the reserves “arranged” by agreement at the time that the Commissioners met with the First Nations. As for the maximum size of a given reserve, this required obtaining a close approximation of the band population. Since pay-lists had to be generated to administer the gratuities to be paid to First Nation members as part of the treaty, upper limits of square mileages could also be calculated at the time of the treaty and suitable reserve size agreed to by the parties.

[47] From this evidence, the trial judge concluded that:

[T]he size of the reserves was based on the known or recognized population at the time of treaty. There was no evidence that the sizes of the reserves were adjusted to account for any population changes between the time of the treaty and the time of the survey. The size of the reserves was fixed by the treaty, to be calculated from the population at the time of the treaty.

[48] In reaching this conclusion, the trial judge thoroughly considered the evidence, finding that there was no evidence to suggest that the First Nations were prepared to wait for the possibility that, with larger populations, they would be granted larger reserves. In the case of the Missanabie Cree, there was some evidence that, as of 1906, it was not anticipated that its population would increase over time. In reality, the Missanabie Cree population fluctuated between 1906 and 1925. From the First Nations’ perspective, the intention was to make treaty and, as part of that exercise, to obtain reserves that would assist in protecting their way of life against the development that was coming.

[49] In short, the trial judge found that there was no evidence of any First Nations being treated or requesting to be treated in a manner inconsistent with an understanding that their reserves were to be identified and calculated on the basis of the population as of the date the Treaty was made. A reserve was set aside for all the bands at all the locations where the parties made treaty in 1905. The fact that an error was made and First Nation members who were associated with the band at Moose Factory (although, at the time, living at different locations such as Missanabie) were not included for the purpose of sizing the reserve does not alter or influence the understanding that the area of the reserve was based on the population as calculated when the Treaty was made.

(2) Step Two: Does the historical and cultural backdrop suggest any latent ambiguity or alternative interpretation?

[50] The trial judge began this second phase of his analysis by noting that it continues the search for an understanding of the parties’ common intention. He summarized the broader context of Treaty No. 9 as follows:

The historical and political contexts are informed by the development of treaties and the relationship between First Nations and European settlement. The coming of development was accepted. In this part of Canada, at this time, the catalyst was the arrival of the railway. There were benefits that accrued to First Nation members. The railway allowed competition to the Hudson’s Bay Company. It increased the price for which fur could be sold. This explains why First Nation members gathered at the rail line as they did at Missanabie. The problem was to find a way to open the area, in this case, north of the height of land […] to facilitate development while accommodating the First Nations. Treaties were the means used to accomplish these goals. By the time of Treaty No. 9, there was a history and experience to treaty-making which the parties could call on. The First Nations were aware of the Robinson-Superior Treaty that dealt with the area north of Lake Superior and south of the height of land. They knew about the gratuities, the annuities and the dedication of reserves.

[51] Noting that the principal concern expressed by the First Nations representatives was the assurance that they would be able to hunt and fish as they had in the past, the trial judge found this assurance was given: “The reserves were to be home, a place where the European had no rights or inherent role”, and where First Nations could live according to their own histories, cultures and experiences.

[52] The trial judge also considered the case of Lac La Ronge Indian Band v. Canada, 2001 SKCA 109, 206 D.L.R. (4th) 638, leave to appeal refused, [2001] S.C.C.A. No. 647, in which the Saskatchewan Court of Appeal reversed the trial court and found that the crystallization date for the determination of reserve land entitlement was the current population and not the population at the time the Treaty was entered into. The trial judge did not find that Lac La Ronge assisted the appellants. Rather, he found that the decision depended on the particular wording and context of Treaty No. 6. He considered Lac La Ronge as part of the context, but found that it did not affect his ultimate conclusion:

… there is nothing in the background that points to or suggests any alternate meaning to the reserve clause. The common intention of the parties was that any reserve was to be sized according to the population at the time the treaty was made.

E. STATEMENT OF ISSUES

[53] Turning to the merits of the appeal, the appellants raise three main grounds of appeal. Did the trial judge err in finding the MCFN’s reserve entitlement was to be calculated based on its population in 1906 by: (1) misdirecting himself as to the crystallization date issue; (2) misinterpreting the common intention of the parties; and (3) failing to consider whether the honour of the Crown was breached?

F. ANALYSIS AND DISCUSSION OF THE CRYSTALLIZATION DATE

(1) Standard of Review

[54] The parties agree that the standard of review for treaty interpretation is correctness: Restoule v. Canada (Attorney General), 2021 ONCA 779, 466 D.L.R. (4th) 1, at paras. 395, 404. They also agree that, in treaty interpretation cases, a trial judge’s findings of fact attract significant deference. However, the appellants argue that since the trial judge was not required to assess witness credibility because there were no conflicting testimonies at trial (due to the joint historians’ consensus-based evidence), the reason for appellate court deference falls away. They also argue that the distinction between narrative and a finding of fact is not always clear from the trial judge’s reasons, and a standard of correctness should therefore apply.

[55] I see no reason to depart from the standard of review set out in R. v. Marshall, 1999 SCC 665, [1999] 3 S.C.R. 456, and affirmed by the majority in Restoule in this case. The trial judge’s factual findings are entitled to deference (subject to palpable and overriding error) and his interpretation of Treaty No. 9 on the basis of those findings is a question of law, reviewable on a correctness standard.

(2) The Crystallization Date

[56] The appellants argue that the trial judge committed three significant errors which led him to misinterpret the Treaty and conclude that the adherence date was the date at which the Treaty was entered into in 1906. The three arguments are as follows:

(a) The trial judge misdirected himself by asking the wrong question in relation to the crystallization date;

(b) The trial judge erred in finding that there was a common intention that the population should be enumerated as of 1906; and

(c) The trial judge erred by not finding that the actions of the Treaty Commissioners and the subsequent conduct of Crown officials breached the honour of the Crown.

[57] I will address these arguments in turn.

(a) Did the trial judge misdirect himself by asking the wrong question in relation to the crystallization date?

(i) The Parties’ Positions

[58] The appellants submit that the trial judge misdirected himself by asking “when did, or will, the right to a reserve crystallize?” rather than answering the question in the Sproat Order: “As of what point in time (the “Crystallization Date”) should the population of the Missanabie Cree be determined for the purposes of applying the reserve entitlement formula stipulated by Treaty 9?” This mistake in law, the appellants argue, led the trial judge to assume that the right to a treaty reserve (in this case, arising in 1906) is the same date as the crystallization date for the purpose of enumerating the population. The trial judge’s assumption was contrary to two persuasive authorities: Ross River Dena Council Band v. Canada, 2002 SCC 54, [2002] 2 S.C.R. 816, and Lac La Ronge, which suggest the crystallization date is marked by a combination of affirmative steps, including surveying the land. Given that these steps were not taken until 2011, the appellants submit that the crystallization date is 2011.

[59] In sum, the appellants argue that the crystallization date for a treaty land entitlement enumeration is determined by the fulfilment of three factors: an intention on the part of the Crown to set apart the Treaty reserve; an affirmative step towards setting apart the reserve, such as a survey; and the participation and assent of the First Nation.

[60] The respondents submit that the trial judge neither conflated the crystallization date with the date that the right to a reserve arose, nor wrongly instructed himself as to the question in Master Sproat’s order. The entirety of the trial judge’s decision is focused on the question of determining the date to calculate the size of the reserve land entitlement based on the population of the MCFN. Neither Ross River nor Lac La Ronge stands for the general proposition that in every treaty a combination of affirmative steps must be taken to arrive at a crystallization date; rather, they demonstrate each treaty is considered in its own context.

(ii) Analysis

[61] Although the appellants frame this first issue in terms of their submission that the trial judge misdirected himself as to the legal question in issue and then failed to follow two persuasive authorities, the core of their argument is that there was no “common intention” to create a reserve and thus, no crystallization date at time of Treaty. Because the appellants argue “common intention” as a separate issue, I will address some of those submissions below in the context of the common intention issue, but I will address the questions that can be separated from the common intention question here.

[62] To begin with, asking the wrong question and following persuasive authorities are questions of law and are therefore subject to a correctness standard on review. There are two main components of the appellants’ argument: (1) the trial judge misdirected himself on the threshold question; and (2) the trial judge failed to follow persuasive authorities, namely Ross River and Lac La Ronge. In my view, neither argument has merit.

[63] First, the trial judge correctly asked the threshold question. Relying on the Sproat Order and the Agreed Statement of Facts, the trial judge understood that all parties recognized that the MCFN was entitled to a reserve as of 1906, but that the question of when to count the population for purposes of applying the reserve entitlement formula (i.e., one square mile per family of five) was outstanding. The trial judge’s understanding of the question at hand is found in multiple sections of his reasons:

For the moment, the court has been left with a narrower question; how big should the reserve be? The treaty includes a formula. Each reserve is to be sized based upon the population of the band for which it is being set aside. The question the court is to resolve, following this trial, is whether the population to be used is as of the making of the treaty (1906), today, in the future or sometime in between. In short, when did, or will, the right to a reserve crystallize?

The right of the Missanabie Cree to a reserve and that one should now be set aside has been conceded. The only issues that remain are the size of the reserve and an assessment of the harm and the damages that its denial has caused over the one hundred and ten years since it should have been set aside and granted.

The question the court is being asked to resolve is a narrow one. It is asked in reference to the very particular circumstances of this case (the size of the reserve where one has not been granted when it is acknowledged it should have been).

[64] Second, the trial judge was correct not to apply the formulas used in Ross River or Lac La Ronge to the reserve clause in Treaty No. 9, and instead to interpret Treaty No. 9 to answer the question of when the population of the MCFN should be determined for the purposes of applying the reserve entitlement formula.

[65] Ross River is not applicable here. In Ross River, the Supreme Court addressed the question of whether a village of a recognized band in the Yukon was a reserve, in the absence of a treaty. In that case, the Supreme Court looked to other indicia to see if there was a common intention to create a reserve and the majority found there was none.

[66] Ross River does not stand for the principle that the Crown must manifest an intention to create a reserve by taking additional steps. Rather, it stands for the principle that each treaty or claim to treaty rights must be considered in its own context. As the majority in Ross River stated, “there appears to be no single procedure for creating reserves”: at para. 67.

[67] Moreover, Ross River instructs, at para. 50, that where a treaty that promises a reserve exists (as is the case with Treaty No. 9), no further intention is required by the Crown to show its intent to create a reserve:

It may be that, in some cases, certain political or legal acts performed by the Crown are so definitive or conclusive that it is unnecessary to prove a subjective intent on the part of the Crown to effect a setting apart to create a reserve. For example, the signing of a treaty or the issuing of an Order-in-Council are of such an authoritative nature that the mental requirement or intention would be implicit or presumptive.

[68] This manifestation of the intention of the Crown is relevant to common intention, as will be addressed below.

[69] I am also of the view that the trial judge correctly distinguished Lac La Ronge from this case. In Lac La Ronge, the Saskatchewan Court of Appeal found that a survey or positive steps by the Crown were required to crystallize the right to the treaty land entitlement. The trial judge distinguished Lac La Ronge on the basis of the difference between the reserve clause in Treaty No. 6, which was at issue in that case, and Treaty No. 9.

[70] First, Lac La Ronge does not stand for the principle that the population of a reserve is always determined on the date of the survey. The survey played a different (and more decisive) role in the interpretation of Treaty No. 6 than it does for Treaty No. 9. While the appellants submit the Saskatchewan Court of Appeal defined a principle of crystallization as the “combination of an affirmative step towards creation of the Treaty reserve and the enumeration of the membership as of the date that step is taken”, that court was simply describing its interpretation of Treaty No. 6 in that case:

The defining or triggering mechanism for determining the size of the treaty land entitlement is the “deputing” of a suitable person to “lay aside” the reserve. Without that action, no reserve is created. The size of the reserve, by necessity (by virtue of the terms of the Treaty), is based upon the number of Indians who are members of the band at that time. In the absence of this information, the size of the land entitlement could not be ascertained given the formula to be applied in order to determine the size of the land entitlement. [Emphasis added.]

[71] This excerpt, which the appellants quote in support of their proposition, is a description specific to the reserve clause in Treaty No. 6, not a general principle of treaty interpretation applicable to Treaty No. 9. The general principles of treaty interpretation from Marshall are intended to be applied to each treaty according to its own words. The goal of treaty interpretation is to choose from among the various possible interpretations of common intention the one which best reconciles the interests of both parties at the time the treaty was signed: Marshall, at para. 78. The trial judge was correct in law to compare the words of both Treaty No. 6 and Treaty No. 9 rather than assuming the findings from Lac La Ronge applied to the case before him.

[72] Second, although Treaty No. 6 and Treaty No. 9 share the same entitlement formula (one square mile per family of five) and similar Crown motivations (promoting settlement and resolving outstanding land claims), the trial judge was correct to distinguish the findings linking the population count to the time of survey in Lac La Ronge from the timing of the population count to the meeting of the Commissioners, Chiefs and Headmen in the case before him. The critical difference between the two treaties is their processes of reserve selection: Treaty No. 6, per Lac La Ronge, was interpreted as grouping selection and surveying into the same process, whereas Treaty No. 9’s process selects the reserve first, at adhesion, while the surveying and defining come after.

[73] In Lac La Ronge, the appellants argue that the date of survey was the crystallization date, and because it occurred many decades after adhesion, the reserve area was calculated on the basis of the population of Lac La Ronge First Nation at that survey date. They submit that this approach, though not binding on this court, is sound in principle and in law. Here, since the reserve land for the MCFN was not surveyed until 2011 and has not been surveyed based on the Missanabie Cree population in 2011, or any other time, the crystallization date has yet to be ascertained. Since the Saskatchewan Court of Appeal in Lac La Ronge has already contemplated the circumstances of First Nations in the same position as the Missanabie Cree who were left out, adhered later or concluded the time to ascertain population is at the time of the correction (in that case the survey), its reasoning should be applied to this case. The appellants cite the following from Lac La Ronge, at para. 138:

It was not until the late 1950s that the Department of Indian Affairs attempted to address the outstanding treaty land entitlements of all bands in Northern Saskatchewan. A handwritten departmental document entitled “Band Population as at November 4, 1959” indicates the maximum amount of land owing to five Bands in Northern Saskatchewan: Lac La Hashe; Portage La Loche; Stoney Rapids; Fond du Lac; and, the Lac La Ronge Bands. The Bands, other than the Lac La Ronge Band, had not previously received reserve land. Therefore, their treaty land entitlement was based on current population which was also date of first survey. [Emphasis in factum.]

[74] I agree with Canada that the appellants conflate the facts specific to Treaty No. 6 with the facts and the text of Treaty No. 9. Canada explains the difference most clearly in their factum:

The Appellant conflates the facts specific to Treaty 6 with the facts and the text of Treaty 9. The survey was a triggering event in Treaty 6, because surveyors played a role similar to the Commissioners in Treaty 9 as principal agents engaged in negotiation and reserve selection. However, there is nothing in Treaty 9 emphasising the role of surveying. A plain reading of the Treaty text indicates the arrangement of the reserves and their location is to be conducted by the Commissioners. [Emphasis added.]

[75] Instead, the lesson from Lac La Ronge is that treaty interpretation follows the principles set out in Marshall. The Saskatchewan Court of Appeal looked closely at the words of Treaty No. 6 and the facts of that case and found the survey was the time when the population count to size the reserve occurred. Here, the trial judge was correct to consider the wording of Treaty No. 9 separately from the outcome in Lac La Ronge. He carefully compared the reserve clause in Treaty No. 6 to that in Treaty No. 9. He observed that Treaty No. 6 did not provide for an arrangement between the Commissioners, Chiefs and Headmen, as Treaty No. 9 did. Rather, for Treaty No. 6, the obligation to provide a reserve crystalized when the Crown “deputed” a “suitable person” for that purpose. In the case of Treaty No. 6, that was the surveyor, so the population at time of first survey was used to determine size.

[76] In my view, the trial judge read and interpreted the language of the reserve clause in Treaty No. 9 correctly: the location was to be arranged by the Commissioners, Chiefs and Headmen, and the boundaries thereof to be “hereafter surveyed and defined, the said reserves when confirmed shall be held and administered by His Majesty for the benefit of the Indians…”. This implied a two-step process. The first step occurred when the right itself crystallized, i.e., when the Commissioners, Chiefs and Headmen met in 1905 and 1906. The second step occurred simply when the right was “confirmed” by survey, unlike in Lac La Ronge, where these two steps were combined into one.

(b) Did the trial judge err in finding that there was a common intention that the population be enumerated in 1906?

(i) The Parties’ Positions

[77] The appellants submit that the trial judge erred in finding that there was a common intention that the population be enumerated for the purpose of determining the size of reserve in 1906 when the treaty was entered into by the MCFN. They argue that this was an error given Treaty No. 9’s silence on the crystallization date. Moreover, they argue that there was little or no evidence to support the trial judge’s finding of common intention.

[78] The MCFN submits that the absence of a common intention at the time of Treaty is supported by the fact that no reserve was provided at that time, and from the absence of any information or discussion about the provision of reserve land. The appellants argue that the only negotiation for Treaty No. 9 took place between Canada and Ontario. The MCFN further argues that the promise of a reserve was never even communicated or held out by the Treaty Commissioners.

[79] The appellants contend the trial judge erred by failing to account for aberrations, unforeseen circumstances, or mistakes in the treaty making process. Instead, the appellants argue that treaty interpretation requires examining the intention specific to each First Nation signatory and the Crown. The appellants argue that it is an error of law to impute the same common intention to the Crown and the MCFN as that of other First Nations in 1906, given that other First Nations had reserve lands and areas identified for them at the time of Treaty, whereas the MCFN did not.

[80] Ontario and Canada make a number of submissions in response. Both submit that to the extent the appellants argue that the Missanabie Cree adhesion to the Treaty was not informed or voluntary, these allegations are new and essentially question the Missanabie Cree’s adherence to the Treaty; this argument is contrary to the Agreed Statement of Facts, the pleadings, and the Sproat consent order, all of which are premised on the validity of Treaty No. 9 and the Missanabie Cree’s adherence to it in 1906. This understanding laid the foundation for the trial on the threshold issue of the crystallization date. Without adherence to Treaty No. 9, there could be no promise of a reserve and no need to determine a crystallization date. The trial judge properly and correctly accorded due respect to the Agreed Statement of Facts and agreement between parties found in the Sproat Order.

[81] Ontario submits that lack of evidence of subjective intention with respect to a reserve on the part of a First Nation which otherwise adheres to the treaty does not pre-empt the need to search for common intention, and cites a number of authorities that support the need to look to the wider historical record in such cases in order to determine common intention at the time of Treaty. This includes consideration of other treaty signatories: Ermineskin Indian Band and Nation v. Canada, 2009 SCC 9, [2009] 1 S.C.R. 222; Marshall; Lac La Ronge; Halfway River First Nation v. British Columbia, 1999 BCCA 470, 178 D.L.R. (4th) 666. Both Ontario and Canada submit that the trial judge correctly looked to the Treaty and to the adhesion process, along with the interests of both parties at the time of adhesion, to determine their common intention. The respondents argue that the same treaty language is to be given the same meaning with respect to different signatories: West Moberly First Nations v. British Columbia, 2020 BCCA 138, 37 B.C.L.R. (6th) 232. Only the clearest evidence could lead a court to different meanings for different parties: Halfway River First Nation, at para. 114.

[82] Both respondents submit that the trial judge properly informed himself as to the principles of treaty interpretation and applied those principles to the facts, which were largely undisputed, with the focus on the time of Treaty. He found the determinative date to be when those with the authority to set apart reserves, in this case the Commissioners, met with the MCFN at the time of Treaty. Canada submits that the “mistake” in failing to set the reserves apart at that time does not, in itself, undermine the evidence of common intention to create a reserve based on population size at that time.

(ii) Analysis

[83] Treaty interpretation is a matter of law, reviewable on a correctness standard, while the factual findings underlying the conclusions about the content of a treaty are reviewable on a palpable and overriding error standard: Restoule, at paras. 393-410, citing Marshall and Caron v. Alberta, 2015 SCC 56, [2015] S.C.R. 511. The factual findings here were largely based on the parties’ joint evidence delivered through the joint expert report and as set out in the Agreed Statement of Facts. They remain largely uncontested on appeal.

[84] The principles of treaty interpretation are well-settled, but general in nature, such that their application will depend on the circumstances of each case. The parties agree that the trial judge correctly articulated the principles, including the two-step process articulated in Marshall as set out earlier in these reasons.

[85] The trial judge’s interpretation was well-supported by the record before him and by the wording of the reserve clause. I see no error, either of fact or of law. Indeed, the appellants do not point to any specific errors. Rather, they claim that the approach taken by the trial judge was wrong, and that he made unwarranted assumptions that led him to his conclusion. I do not agree. I see no error in the trial judge’s interpretation of the reserve clause and his application of these principles to the facts and circumstances, including the historical context, as the two-step approach and principles of treaty interpretation set out in Marshall required him to do. In my view, his conclusion that there was a common intention at the time of adhesion to the Treaty in 1906 that the population as at that date be calculated in order to determine the size of the reserve to which the Missanabie Cree were entitled was well-founded in both fact and law.

[86] The trial judge made three significant factual findings: there was a common intention to create a reserve; the treaty was unambiguous on its face, though silent, that the common intention was to count the population and determine the size of the reserve at the time the Commissioners met with the First Nations; and nothing in the historical record indicated otherwise.

[87] For convenience, it will be useful to again set out the reserve clause:

And His Majesty the King hereby agrees and undertakes to lay aside reserves for each band, the same not to exceed in all one square mile for each family of five, or in that proportion for larger or [and] smaller families; and the location of the said reserves having been arranged between His Majesty’s commissioners and the chiefs and headmen, as described in the schedule of reserves hereto attached, the boundaries thereof to be hereafter surveyed and defined, the said reserves when confirmed shall be held and administered by His Majesty for the benefit of the Indians free of all claims, liens, or trusts by Ontario. [Emphasis added]

[88] While it is common ground between the parties that the reserve clause is silent as to when the population should be enumerated for purposes of the reserve formula, I find that the reserve clause does address the question of when the population was to be enumerated. The emphasized text above directly contemplates that the location will have been arranged at the time of adhesion, which was 1906.

[89] The appellants assert that this interpretation cannot apply to the MCFN because none of the following steps, which would have marked crystallization, occurred:

• The reserves are to be set aside according to a formula (“one square mile for each family of five or in that proportion”);
• The Commissioners and the First Nation agree as to the location which is as described in the schedule of reserves;
• The reserves are to be surveyed and defined later;
• When confirmed, the reserves are to be held and administered by the government of Canada for the benefit of the First Nation.

[90] Based on these steps, the MCFN takes the position that the crystallization date for the MCFN was 2011, when Canada set aside the reserve land. In effect, the appellants argue that there was no common intention to create a reserve for the MCFN in 1906, so 1906 cannot possibly be the crystallization date. The trial judge’s interpretation relied on a “myth” of common intention.

[91] I disagree with this argument for a number of reasons.

[92] To begin with, I would not go so far as to adopt the respondents’ position that the logical outcome of the appellants’ argument is that there could be no treaty interpretation because, in effect, there was no treaty in 1906. That would, of course, fly in the face of the Sproat Order and the Agreed Statement of Facts which expressly acknowledge that the Treaty was entered into in 1906. However, that is not what I take the appellants to mean. Instead, the appellants’ position is that neither the Agreed Statement of Facts nor the “meet and pay” adherence inevitably results in the crystallization date being 1906. I do not agree that the trial judge did assume such inevitability. Rather, he undertook a careful exercise of treaty interpretation in accordance with the well-established principles, taking into account all the facts, agreed to or otherwise, after which he found the crystallization date pursuant to the Treaty to be 1906. To be clear, this conclusion does not automatically follow from the fact that the parties entered into a treaty in 1906; rather, it follows in this case from the interpretation of this Treaty, including the reserve clause.

[93] One of the applicable principles is that the goal of treaty interpretation is to choose from among the various possible interpretations of common intention the one which best reconciles the interests of both parties at the time that treaty was signed: Marshall, at para. 78 citing R. v. Sioui, 1990 SCC 103, [1990] 1 S.C.R 1025, at pp. 1068-69. The time when the treaty was signed is a focus of the inquiry because of the difficulties interpreting a treaty presents, as noted by Binnie J. for the majority in Marshall, at para. 14:

The [First Nation] parties did not, for all practical purposes, have the opportunity to create their own written record of the negotiations. Certain assumptions are therefore made about the Crown’s approach to treaty making (honourable) which the Court acts upon in its approach to treaty interpretation (flexible) as to the existence of a treaty ... the completeness of any written record ... and the interpretation of treaty terms once found to exist. The bottom line is the Court’s obligation is to “choose from among the various possible interpretations of the common intention [at the time the treaty was made] the one which best reconciles” the [First Nation] interests and those of the Crown. [Citations omitted.]

[94] The task of the court when interpreting a treaty has not wavered from focusing on the evidence at the time the treaty was signed to elicit common intention: Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388, at para. 28; R. v. Marshall; R. v. Bernard, 2005 SCC 43, [2005] 2 S.C.R. 220, at paras. 22-24; Ermineskin Indian Band, at para. 55.

[95] Thus, “it is not sufficient to note that a treaty is silent on [a] point”; the treaty still must “be interpreted by determining the intention of the parties on the territorial question at the time it was concluded”: Sioui, at p. 1068 [emphasis added]. Even though Treaty No. 9 did not contain wording to account for the situation at hand, the goal remains choosing among various possible interpretations of common intention at the time the Treaty was signed. The mere fact that the reserve clause was silent as to the date of the crystallization of the population to determine the size of the reserve is not determinative one way or the other.

[96] The trial judge undertook a thorough interpretative analysis. In the course of considering the historical and cultural context, as required by Marshall, he found that the purpose of the reserve clause was to set aside sufficient land for the signatory bands in the face of coming settlement and to provide mutual benefits:

In this case (if not in all cases), the treaty involved recognized an important exchange. The nature of that exchange was referred to in the trial decision in Lac La Ronge Indian Band v. Canada:

I begin with the observation that the Treaty was intended to confer benefits upon all parties. The Crown was to obtain title to a very large portion of land and thereby enjoy an opportunity to effect peaceful settlement of the area… The benefit to the Crown was immediate. Upon execution of the Treaty, title to the land passed to the Crown. At that point the Indians had fulfilled their Treaty obligation.

On the other hand, the Indians received a benefit which was not inconsiderable. They were to be assisted in modifying their lifestyle so they could survive the disappearance of the buffalo and accommodate the influx of the settlers. For most this involved a change from the nomadic life they had enjoyed to an agrarian one with which they were not familiar.

The circumstances [in Lac La Ronge] were somewhat different. The quotation refers to the disappearance of the buffalo and the conversion to an agrarian lifestyle. In this case, it was the arrival of the railway and, although there was some reference to setting aside land to farm, the desire to maintain the way of life associated with hunting and fishing was the catalyst for the First Nation participation in the treaty. Nonetheless, the demonstration of an intention to confer benefits to both sides is present here as it was there.

[97] Turning to the facial meaning of the reserve clause, the trial judge found the date of signing or adhesion was the crystallization date; he thoroughly considered the record before him in reaching that conclusion and cited to a number of undisputed factors, which, seen together, provide strong support for his conclusion.

[98] In examining the reserve clause, he noted that (unlike Lac La Ronge), it expressly provides the “Commissioners and the Chiefs and Headmen” were to determine the location of the reserves “…the same not to exceed in all one square mile for each family of five”.

[99] The trial judge noted the historians’ agreement that the clear intention was to have the locations of the reserves arranged by agreement at the time that the Commissioners met with the First Nations and that the only time that the Commissioners, the Chiefs and Headmen were to meet was at the point the Treaty was made. Since pay-lists had to be generated to pay the annuities to First Nations, these could also be used to calculate the square mileage of reserve size for agreement between the parties. The very purpose of the lists was to pay gratuities and size the reserves.

[100] The interpretation that the common intention was to count the population at the time of adhesion, or shortly thereafter, so that the reserve could be sized is confirmed by the requirement that the reserves were to be as described in the “schedule of reserves”. Reserve boundaries would then be defined by survey shortly after signing or within a reasonable time (“hereafter”). In 1907, the 16 reserves selected through the Treaty signings were approved and confirmed in an Order-in-Council, which reproduces the reserve calculations from the schedules of reserves. The key factual finding on this interpretation is found in the trial judgment:

The three historians comment that a comparison of the reserve areas described in the Schedules of Reserves and those surveyed demonstrates that, with the exception of Fort Hope, the latter were derived from the former. This indicates that the size of the reserves was based on the known or recognized population at the time of treaty. There was no evidence that the sizes of the reserves were adjusted to account for any population changes between the time of the treaty and the time of the survey. The size of the reserves was fixed by the treaty, to be calculated from the population at the time of the treaty.

[101] The schedules of reserves provide the clearest evidence of this process: the band, reserve location, and reserve size are recorded in the schedules for all those locations at which treaty was made in 1905 and 1906. In contrast, no reserves were selected for the First Nations at the meet-and-pay locations, with the exception of Chapleau. This latter step of arrangement was missing, seemingly, because it was believed that those First Nations already had reserves arranged for them. This is also consistent with the events at Chapleau, where the Commissioners reasoned it was not necessary to make treaty, but found it appropriate to provide a small reserve for their houses and garden plots. Although this reserve was not sized in accordance with the reserve clause formula, it was included in the Schedule (i.e., it was still “arranged”).

[102] The trial judge also found this interpretation to be consistent with the general approach taken in the two Robinson Treaties and Treaties numbered 1, 2, 5 and 7. First Nations were seeking reserves to assist in protecting their way of life against the development that was coming, as the railway had already been completed. There is no suggestion that they were prepared to wait for the possibility that, with larger populations, they would be granted larger reserves. Nor was it necessarily expected that their populations would increase rather than decrease. As the trial judge noted, several First Nation requests to expand or relocate reserves fixed in 1905–06 were refused, which lends additional support to the position that the date for population assessment was understood to be the date of making Treaty.

[103] The trial judge found no evidence of any First Nations being treated or asking to be treated in a manner inconsistent with an understanding that their reserves were to be identified and calculated as of the date the Treaty was made. A reserve was set aside for all the bands at all the locations where the parties made Treaty in 1905. The fact that an error was made and the Missanabie were not included for the purpose of sizing the Moose Factory reserve does not change this general understanding as of the time the parties made treaty.

[104] The effect of the appellants’ argument is that the interpretation of the Treaty based on the common intention including the consideration of the intentions of other signatories to the Treaty is of no value in the absence of any clear intention expressed by the Crown or the Missanabie Cree to setting aside a reserve for the MCFN. I cannot agree.

[105] First, aside from the historical evidence reviewed above showing Crown intention to make treaty, a treaty will presumptively provide the necessary Crown intent: Ross River, at para. 50. Moreover, in searching for the common intention of the parties, the integrity and honour of the Crown is presumed: R. v. Badger, 1996 SCC 236, [1996] 1 S.C.R. 771, at para. 41. Here, the honour of the Crown presumes the Missanabie Cree were a band with a treaty land entitlement to a reserve in 1906.

[106] Second, I agree with Chief Justice Bauman’s majority judgment in West Moberly, at paras. 402-403, that in some cases, “the absence of Indigenous intention cannot prevent the dispute over it from being settled.” In that case, “[t]he trial judge did not fail to consider the intention of Indigenous parties to the Treaty.”

[107] In this case, the issue of whether there was an absence of intention from the Missanabie Cree in 1906 does not arise because the parties have agreed, as set out in the Sproat Order, that the MCFN has been a party to Treaty No. 9 since 1906 and, pursuant to the reserve clause of that Treaty, that a reserve should have been set aside for the benefit of the Missanabie Cree shortly after the making of the Treaty. In my view, the trial judge did not rely on a “myth” of common intention, but reasonably inferred common intention from the agreed facts that placed the Missanabie Cree in the same position as the other signatories to Treaty No. 9 in 1906.

[108] Third, the trial judge’s interpretation is consistent with the common intentions of the Crown and all the signatories to Treaty No. 9 in 1906. Courts have assumed the inquiry is into the intention of the signatories generally (not the claimants specifically), at the time the treaty was signed, even when considering how the treaty applies to later adherents. Only the clearest evidence of a specific claimant’s intention would find that the same treaty language has different meanings in respect of different signatories: Halfway River First Nation, at paras. 110-114; West Moberly, at para. 117.

[109] In this case, there is no clear evidence of the MCFN’s intentions. On one hand, they adhered to the Treaty through the “meet and pay” method. On the other hand, reserve land was not set aside for them even though the Treaty so provided. At the same time, the historians agreed that it was both Crowns’ intention to set aside reserves for all Treaty No. 9 First Nations at the time of Treaty. The trial judge found on all the evidence that “it is apparent that the intention of the First Nations was to make treaty and, as part of that exercise, to obtain reserves that would assist in protecting their way of life against the development that was coming.” In my view, while there might not be historical evidence of the MCFN’s specific intention, there is also no clear evidence that the MCFN did not want a reserve in 1906. In addition, the parties have agreed that the MCFN has been a party to Treaty No. 9 since 1906 and that a reserve should have been set aside for their benefit shortly after they adhered to it. In these circumstances, the trial judge did not err by also looking to the intentions of the original signatories to the Treaty.

[110] Finally, the Crown’s failure to set aside a reserve in accordance with its obligations under the Treaty might result in a claim for damages or other remedies, but it does not change the date for the calculation of treaty entitlement: Lac La Ronge, at para. 62. In that case, the Crown failed to meet its obligation to set aside reserve lands commensurate with the formula and later corrected the treaty land entitlement by subsequent surveys. Although, as discussed above, the triggering event under the Treaty No. 6 reserve clause was the deputing of a “suitable person” to “lay aside” the reserve, such that the population would be calculated at or around the time of survey, the court rejected the current population approach in favour of the population at time of the first survey:

There is no credible basis for using a different time for calculating reserve land entitlement where a band does not receive its full entitlement. Nothing in the Treaty suggests that a different approach is to be used to determine entitlement if, for whatever reason, the whole amount of the entitlement is not set apart. The entitlement is fixed or crystallizes at the first survey or census as adjusted. The failure to allot the entire land may result in a claim for damages [or other remedies to address such breach of treaty entitlement], but it does not change the date for the calculation of treaty entitlement.

[111] Put another way, the breach of a treaty obligation does not change the nature or content of the treaty obligation.

[112] As discussed earlier, the parties agreed to phase this litigation, with the questions of whether the Crown breached its treaty obligations and what remedial relief should be granted to be determined at a later date. As the appellants’ Notice of Appeal made clear: “it was agreed that the ‘purpose of this phase of the trial is not to judge the correctness of the actions of the Treaty Commissioners in 1906’”. To that end, the trial judge’s use of the words “mistake” and “error” to describe the actions of the Treaty Commissioners’ failure to set aside reserve lands were not findings of fact. Explanations for the Treaty Commissioners’ actions will be addressed when the breach and attendant damages are determined.

(c) Did the trial judge err in failing to find that the actions of the Treaty Commissioners and the subsequent conduct of Crown officials breached the honour of the Crown?

(i) The Parties’ Positions

[113] The appellants submit that the trial judge erred by not finding that the actions of the Treaty Commissioners and the subsequent conduct of Crown officials breached the honour of the Crown, not only as a result of “sharp dealings” but also by refusing to give any serious consideration to requests for reserve land at Missanabie in 1915 and 1929 or at any other time in the 20th century.

[114] I disagree. The trial judge was alive to and considered the honour of the Crown correctly throughout his reasons in relation to the narrow question before him.

[115] The appellants allege three errors:

(i) The narrow ruling that the Crystallization Date must be the date of Treaty is not a broad and purposive approach to interpretation of the reserve clause of Treaty No. 9; it is narrow and minimalist, ignoring other more flexible and equitable precedents;

(ii) There is no due consideration given to the Crown’s significant lack of diligence in fulfilling the promise of a Treaty reserve to the Missanabie; and

(iii) There is no due consideration given to evidence of sharp dealing by way of concealing the promise of a Treaty reserve from the Missanabie Cree at the time of Treaty and persisting in representing them as “Moose Factory Indians” when the Treaty Commissioners had the evidence in hand that they were not.

[116] The appellants argue that there is “compelling evidence that the actions of the Crown in refusing to “make treaty” at Missanabie was intentional, at the very least willfully blind and at worst dishonest.” They point, for example to the absence of any explanation given by the Commissioners for the difference in treatment between Missanabie and Long Lake during visits within ten days of one another, suggesting that the documentation supports the view that the Crown was prioritizing railway development and the future commercial interests of the country. The pattern of conduct and lack of diligence constituted “sharp dealing” and persisted until 2011, when the requisite intention to create a MCFN Treaty reserve was set out in the Sproat Order, and the necessary step of a first survey to create the reserve was taken.

[117] The respondents make a number of submissions in response. First, both Ontario and Canada submit that the allegation of sharp dealing is a new issue on appeal and should not be permitted for that reason. Canada further submits that the appellants’ broad arguments about the Crown and sharp dealing constitute an abuse of process because the legitimacy of adhesion and allegations made against federal agents post-treaty for failure to provide the MCFN a reserve are covered by Canada’s Settlement Agreement with the MCFN.

[118] Ontario’s central submission is that the trial judge did not err by failing to give due consideration to the Crown’s lack of diligence in fulfilling the reserve promise, or to evidence of alleged “sharp dealing” by the Treaty Commissioners, and makes three related points.

[119] First, Ontario submits that the trial judge was engaged in a treaty interpretation exercise, and that the Crown’s failure to implement a treaty promise is a question of remedy rather than one of interpretation. Second, Ontario submits that a court cannot logically assess implementation until there is a determination about what the treaty promise is. Finally, Ontario argues that the issue of any failure to provide a reserve, and the implications of that failure, have been stayed pending the determination of the threshold issue, which the trial judge was alive to in his reasons.

[120] Both respondents (Canada in the alternative) also submit that the trial judge made a finding of fact that the Commissioners genuinely believed that the MCFN “originated as part of the Moose Factory band and … moved from there to the railway at Missanabie”, which was open to him on the record before him. In addition, they disagree with the appellants’ characterization of the experts’ evidence, noting in particular that the experts did not provide evidence that the connection between Moose Factory and the MCFN was “not the state of affairs”. Instead, the joint experts’ evidence was that they did not know why the MCFN was not given a reserve and that there is no explanation for this in the historical record.

(ii) Analysis

[121] The appellants’ submissions that the trial judge erred in his treatment of the honour of the Crown must fail for a number of reasons. I will give those reasons after briefly summarizing the most pertinent aspects of the principle.

[122] The principle that the honour of the Crown is always at stake in the Crown’s dealings is well-founded in case law: Marshall, at para. 51; R. v. Taylor and Williams (1982), 34 O.R. (2d) 360, at pp. 235-36; Whiteduck v. Ontario, 2023 ONCA 543, at para. 20. As McLachlin C.J. wrote in Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511, at para. 16, the principle “is not a mere incantation, but rather a core precept that finds its application in concrete practices”: see also Restoule, at para. 234. In the following oft-cited quotation from Haida Nation, McLachlin C.J. explained:

The historical roots of the principle of the honour of the Crown suggest that it must be understood generously in order to reflect the underlying realities from which it stems. In all its dealings with Aboriginal peoples, from the assertion of sovereignty to the resolution of claims and the implementation of treaties, the Crown must act honourably. Nothing less is required if we are to achieve “the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown”… [Citations omitted.]

[123] The honour of the Crown is to be presumed, and it “infuses” the process of treaty interpretation: Haida Nation, at para 19. It is “an important anchor”: Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53, [2010] 3 S.C.R. 103, at para. 42; Restoule, at paras. 231-242.

[124] In the case of treaty obligations, the honour of the Crown arises both with respect to the interpretation of treaty obligations, and to their implementation, that is, whether the obligations have been breached. These two components are very clearly articulated by Karakatsanis J. in Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40, [2018] 2 S.C.R. 765, at para. 28:

This Court has repeatedly found that the honour of the Crown governs treaty making and implementation, and requires the Crown to act in a way that accomplishes the intended purposes of treaties and solemn promises it makes to Aboriginal peoples…. Treaty agreements are sacred; it is always assumed that the Crown intends to fulfill its promises. No appearance of “sharp dealing” will be permitted. [Citations omitted.]

[125] Returning to the appellants’ arguments, I agree that the honour of the Crown applies to the interpretation stage, which is the stage before the court in this appeal. This stage, however, is further defined by the parties’ agreement, expressed in the Sproat Order, which provides that the sole issue before the trial judge was that of interpreting the Treaty to determine the crystallization date. Put another way, the crystallization date issue was premised on the parties’ agreement that they had entered into a binding treaty in 1906. The appellants are thus precluded from asserting sharp dealing in the course of the treaty negotiation process just as the respondents are precluded from asserting the Missanabie Cree were not entitled to a reserve. Moreover, as set out above, I see no error in the trial judge’s purposive interpretation of the reserve clause. The trial judge was expressly alive to the foundational principle of the honour of the Crown, but also noted: “[I]t is not the role of treaty interpretation to distort the meaning of the treaty in an attempt to redress an historical wrong”. In this respect, he was in line with the jurisprudence that “‘generous’ rules of interpretation should not be confused with a vague sense of after-the-fact largesse” and that the honour of the Crown “cannot alter the terms of the treaty by exceeding what ‘is possible on the language’ or realistic”: Marshall, at paras. 14 and 78. He carefully reviewed the text of the Treaty and the evidentiary record in his search for common intention, including that the expert witnesses jointly stated that they were unable to determine why a reserve was not provided to the Missanabie Cree at the time. In short, the trial judge applied the correct law within the context of the Marshall framework and gave full consideration to the honour of the Crown to the extent it was appropriate to do so given the scope of the issue before him.

[126] As to the appellants’ second and third arguments, which fault the trial judge for not giving due consideration to Crown conduct in the implementation of the Treaty, I do not agree. The trial judge would have erred had he extended his task beyond the terms agreed to by the parties and captured in the Sproat Order. Although he speculated as to the form the remedy for a breach of the honour of the Crown might take (damages or more land), he did not undertake any such analysis beyond using the principle of the honour of the Crown as an underlying principle of treaty interpretation.

[127] As discussed earlier in these reasons, the next phase of this action, being damages or remedies, will consider the implementation of the Treaty.

[128] Finally, and as both Crowns submit, the allegation of “sharp dealing” on the part of the Commissioners is a new issue on appeal. This is understandable given the terms of the Sproat Order which, as discussed above, is premised on the validity of the Treaty. Canada also submits that the broad arguments are an abuse of process because their allegations are covered by their Settlement Agreement reached in 2020. As will be set out under my reasons for dismissing the abuse of process motion, Canada’s position on the effect of the Agreement on the remedial and damages stage of this litigation will be for the court in that ongoing matter to determine.

[129] I say that not as a criticism of how this litigation was conducted. I simply wish to emphasize that by dismissing the abuse of process argument on the narrow issue before this court, I am not commenting on the application of the Settlement Agreement to the next stage of the litigation.

G. ANCILLARY ISSUES

[130] As a final matter, I now turn to addressing the ancillary issues.

[131] It is important to re-state what is not before this court on appeal: damages or remedy. That said, the parties agreed to admit as fresh evidence that, after the trial decision, the MCFN and Canada continued negotiations and entered into a Settlement Agreement and Negotiation Protocol in 2020 for nearly $150 million and the opportunity for the MCFN to purchase an additional five square miles of land to add to their reserve. Canada raises three ancillary issues in relation to this Settlement Agreement: (1) whether to admit the Agreement as fresh evidence; (2) if admitted, should the Agreement be sealed; and (3) is continuing the appeal as against Canada an abuse of process in light of the Agreement?

(1) The Fresh Evidence

[132] Canada brought a motion to introduce fresh evidence on the appeal as to the achievement of the Settlement Agreement on the basis that the test in Palmer v. The Queen, 1979 SCC 8, [1980] 1 S.C.R. 759, was satisfied. This motion, to which all parties consented, sought to admit the evidence of the Agreement concluded after the trial in this matter.

[133] I would admit the fresh evidence. The Palmer test is met. The Settlement Agreement, reached after judgment was rendered in the trial of this matter, is highly relevant to issues regarding the liability of the Crown. There are no concerns about its credibility in that a settlement was clearly reached, ratified and reflected in an Order-in-Council dated February 29, 2020 (the “OIC”). It is material to the issues on appeal, such as Canada’s motion to have the appeal against it dismissed: Catholic Children’s Aid Society of Metropolitan Toronto v. M. (C.), 1994 SCC 83, [1994] 2 S.C.R. 165, at pp. 188-89. The fact that the motion is on consent reflects these factors.

(2) The Sealing Order

[134] Upon filing its motion to admit the Settlement Agreement, Canada obtained an interim sealing order from Brown J.A. with respect to the Agreement and the negotiation protocol. Canada seeks a continuation of that sealing order. The MCFN consents to Canada’s request in this regard, while Ontario takes no position.

[135] I would dismiss Canada’s motion to continue the sealing order. As I explain below, Canada has not demonstrated that the public objectives of “administration of justice, the promotion of settlements and settlement privilege” are at “serious risk” on the facts of this case, namely because the most salient elements of the Settlement Agreement are already publicly available through the OIC.

[136] Canada’s principal submission is that disclosure of the documents could have a negative impact upon and jeopardize future Crown-First Nation negotiations. In effect, Canada argues that in order to be able to negotiate effectively with other First Nations in the future, confidentiality must be guaranteed. In oral argument, Canada expressed a concern that negotiators would not be frank, open and honest in their dealings for fear that their positions, as well as the negotiation process, might be exposed and ridiculed.

[137] The leading authority governing limitations on the open court principle is the Supreme Court’s decision in Sherman Estate v. Donovan, 2021 SCC 25, 458 D.L.R. (4th) 361, where the court clarified the test for whether a sealing order should be granted. To succeed, a party must establish that:

(1) court openness poses a serious risk to an important public interest;

(2) the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk; and

(3) as a matter of proportionality, the benefits of the order outweigh its negative effects.

[138] Only where all three of these prerequisites have been satisfied can a discretionary limit on court openness – for example, a sealing order, a publication ban, an order excluding the public from a hearing, or a redaction order – properly be ordered. This test applies to all discretionary limits on court openness, subject only to valid legislative enactments: Sherman Estate, at para. 38. Throughout the unanimous decision, the Court emphasized the foundational nature of the open court principle in a democracy and the exceptional nature of limitations on that principle.

[139] The first branch requires the moving party to demonstrate that disclosure of the information would pose a serious risk to an important public interest. The identification of an important interest and assessing the seriousness of the risk to that interest are separate and qualitatively distinct inquiries: Sherman Estate, at para. 42. While the determination of an important public interest might be done in the abstract at the level of general principles that stretch beyond the parties to the particular dispute, whether that interest is at “serious risk” is a fact-based finding that, for the judge considering the appropriateness of an order, is necessarily made in context.

[140] Canada has not satisfied this first requirement of the test. While invoking the public interest exception of (in this case) settlement privilege, it does so at a highly general level. As Kasirer J. stated in Sherman Estate, it is necessary to identify both the public interest at issue and the seriousness of the risk to it within the specific facts viewed in context: at para. 42 (emphasis added). Here, Canada has only generally raised the broad concern that removing the seal would have a “chilling effect” on future Crown-First Nations negotiations.

[141] To begin with, Canada has not pointed to any material elements of the Settlement Agreement that are not already in the public domain. Although Canada identifies articles 3.1, 3.2, 7.1, 7.2, and 7.3 as being “particularly at risk” of affecting future negotiations, these provisions are expressly covered by the Schedule to the OIC dated February 29, 2020 and are therefore already in the public domain. For example, article 1 of the OIC sets out the amount of financial compensation ($146,347,476), which parallels article 2 of the Agreement. Article 2 of the OIC also summarizes article 3 of the Agreement, which provides for the possible acquisition of “up to” 3,200 acres of reserve land. Article 4 of the OIC summarizes the ratification process and requirements provided in article 7 of the Agreement, and confirms that, by the time of the OIC, the ratification requirements had been met. It is trite law that neither a sealing order nor a publication ban may be granted for information that is already in the public domain: see e.g., R. v. Ottawa Citizen Group Inc., 2005 ONCA 93777, 75 O.R. (3d) 590, at para. 23.

[142] It follows that, while redacting part of the Settlement Agreement could be an appropriate alternative measure in some cases, it cannot be here, because Canada has not identified any such proposed provisions that are not already in the public domain.

[143] Moreover, I am unable to say that the sealing order sought is necessary to protect settlement privilege with respect to ongoing or future Crown-First Nations negotiations. Of course, settlement privilege is a recognized and important public interest. As I have just discussed, however, the content of the Settlement Agreement is already in the public domain, and there is nothing in the Agreement that discloses anything about the content of the negotiations themselves. For example, the Agreement is silent on what the parties’ initial positions were or which party compromised on what issues.

[144] In the course of oral argument, counsel suggested that the serious risk to an identified public interest arises because the Settlement Agreement might be seen as a “template” to be followed by future agreements. I do not agree that the facts of the ultimate settlement with Canada in this case can be said to have a “chilling effect” on future settlements or settlement discussions. Importantly, all the material elements of the Settlement Agreement are already in the public domain.

[145] In short, Canada has not met the Sherman Estate test. I would order that the sealing order be lifted.

(3) Abuse of Process

[146] Canada seeks to dismiss the appeal against it and enforce the Settlement Agreement. It submits that continuing the appeal is an abuse of process. It asserts that the appeal relitigates an issue that has been resolved between Canada and the MCFN. The Settlement Agreement with the MCFN includes a provision in article 4 of the Agreement (and article 3 of the OIC) that releases Canada from liability in relation to the claim. The MCFN consents to a dismissal as against Canada but does not consent to a dismissal on the basis of abuse of process. Ontario agrees with the MCFN that the appeal against Canada is not an abuse of process. Moreover, Ontario argues that the motion is premature and is best brought as a motion to discontinue before the Superior Court in relation to the next stage of the litigation so that the court may fully consider the prejudice to Ontario should it be left to answer for Canada’s conduct and to its crossclaim.

[147] Having heard the arguments on abuse of process, we reserved our decision on Canada’s motion and heard Canada’s arguments on the merits of the appeal.

[148] The primary focus of the doctrine of abuse of process places more emphasis upon the integrity of the adjudicative functions of courts than the interest of parties: Toronto (City) v. C.U.P.E. Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, at para. 43. The doctrine functions to prevent re-litigation in circumstances that violate judicial economy, consistency, finality, and the integrity of the administration of justice: 402 Mulock Investments Inc. v. Wheelhouse Coatings Inc., 2022 ONCA 718, at para. 19. It is a discretionary power deployed to protect the integrity and coherence of the court’s process that should only be invoked in the clearest of cases: Currie v. Halton Regional Police Service Board (2003), 233 D.L.R. (4th) 657 (Ont. C.A.) at para. 18; Dosen v. Meloche Monnex Financial Services Inc. (Security National Insurance Company), 2021 ONCA 141, 457 D.L.R. (4th) 530, at para. 27.

[149] I am of the view that the motion to dismiss the appeal and enforce the Settlement Agreement should not be granted. The order sought is discretionary in nature and should only be granted in “the clearest of cases”, which this is not. Canada participated in the appeal process throughout and waited until November 22, 2022 to seek a dismissal. The Settlement Agreement contemplates that the parties will go before the Superior Court to seek a dismissal of the entire action. That is the appropriate forum. At that time, the impact on the counterclaims can be addressed by way of a r. 23.01 motion to discontinue the action brought under the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. In my view, a r. 23.01 motion to the Superior Court is the proper path, particularly in light of the phased approach to this litigation, where damages are yet to be litigated and Ontario’s crossclaim against Canada is outstanding. It will also avoid addressing the proceedings in a piecemeal fashion.

H. CONCLUSION

[150] I would admit the fresh evidence, lift the sealing order, dismiss Canada’s motion to dismiss and dismiss the appeal.

[151] Pursuant to the orders of Stewart J., the MCFN received an advanced costs award, which provided that Canada and Ontario shall share and pay equally the MCFN’s partial indemnity costs to litigate the threshold issue (as defined in the Sproat Order). For that reason, we understand that there is no need to deal with costs of the appeal at this time. We may be spoken to if necessary.

Released: February 27, 2024 “S.E.P.” “A. Harvison Young J.A.” “I agree. S.E. Pepall J.A.” “I agree. P. Lauwers J.A.”