Fletcher v. Ontario, 2016 ONSC 5874

CITATION: Fletcher v. Ontario, 2016 ONSC 5874

COURT FILE NO.: 95-CU-93574

DATE: 20161208

ONTARIO

SUPERIOR COURT OF JUSTICE

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

– and –

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO and THE ATTORNEY GENERAL OF CANADA

Defendants

Ron Maurice, William B. Henderson & Ryan Lake, for the Plaintiffs

Manizeh Fancy, Richard Ogden & Vanessa Glasser, for the Defendant, Her Majesty the Queen in Right of Ontario

Michael Beggs & Jodi McFetridge, for the Defendant, The Attorney General of Canada

HEARD: February 1-5, 8-10, March 7-9, 2016

LEDERER J.:

INTRODUCTION

[1] This case represents a significant part of the history of our country. It concerns the interpretation and implementation of a treaty made between the Crown and First Nations. It considers the failure of those acting on behalf of the Crown to properly comprehend the standing of a small First Nation band, our desire to correct this error and, in the present day context, to find the appropriate remedy.

[2] The treaty was entered into over the course of 1905 and 1906. It was the result of the work of a Commission arranged by agreement and co-operation of the governments of the Dominion of Canada and the Province of Ontario. The treaty was made between the Crown, as represented by the two governments, and various First Nation bands and peoples. It dealt with the use of lands generally north of the divide which separates the watershed where the rivers and lakes flow north to James Bay from the watershed where the waters run south to Lake Superior. The treaty was made in response to the concerns of First Nations that the arrival of the railway and the development that would inevitably accompany it would change, if not destroy, their way of life and the corresponding desire of the two governments to prepare for that development. The treaty was one of a series identified by number (Treaty No. 9). In substance, it called for the First Nations to surrender any claim and agree to the extinguishment of aboriginal title to the land, as a whole (approximately 90,000 square miles). In return, the Crown promised to set aside reserves, each for the use of a recognized band, to maintain rights of First Nation members to hunt and fish as they had done in the past and to receive an initial gratuity of $8.00 and an annuity of $4.00 per person.

[3] At the time of the making of the treaty, those acting on behalf of the Crown did not understand a group of Crees resident at Missanabie, a station on the railway line, to constitute a band. They associated those First Nation members with a larger band located at Moose Factory, on James Bay. As a result, no reserve was set aside. It is now acknowledged by both Canada and Ontario that one should have been. The broad issue is how to correct this error one hundred and ten years after it was made. 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? As it was explained to the court, following this issue being answered, the parties intend to meet, talk and see if an overall resolution can be found. Absent an agreement, the matter is to return to court for further consideration. I shall comment on the nature of the question now to be decided and the context in which it is being asked later in these reasons.

THE EVIDENCE

[4] Only three witnesses were called, each one an historian and each one retained by and presented by one of the three principal parties (the Missanabie Cree First Nation, as represented by the three named plaintiffs, Her Majesty the Queen in Right of Ontario and the Attorney General of Canada). This is hardly surprising there being no one alive who would have been involved in, or could remember, what took place when the treaty was made. The three historians (Joan Holmes, Alexander von Gernet and Jean-Philippe Chartrand) worked independently of one another in the preparation of reports and reply reports which were submitted to their respective clients and subsequently exchanged between the parties. Mr. Justice David Aston was, for a time, the Case Management Judge. He issued an order, on consent, that “[t]he parties are to arrange a meeting, or meetings, which will include their respective experts for the purpose of coming to the most comprehensive Statement of Agreed Facts that is possible...” The experts met, first on February 26 and 27, 2014; subsequently, from April 14 to April 16, 2014; and, finally, on October 29 and 30, 2014. Together, they produced a joint report.

[5] Over the course of doing this work and preparing the joint report, the three historians did not identify any significant issues or relevant historical facts in respect of which they were not in agreement. This allowed their evidence to be called in an unusual, and I believe for this Court, a novel way. The three historians were called at the same time; they presented their evidence together, as a panel. Their joint report organized and was the foundation for that evidence. The three historians took turns reviewing each successive section of the report, after which each of the counsel asked whatever questions they thought were required to fill out the explanation of the co-operative work that had been done. There were very few such questions. Thereafter, each counsel was permitted to question the historian they had introduced to the process. This was an opportunity to point out any differences and elicit any separate opinions. There were none; certainly none that were material to the decision the court was asked to make.

[6] This means of calling the evidence was helpful. It shortened the proceeding and removed, through discussion and agreement, the sort of dispute over the facts that can take up time to no meaningful effect. It provided the court with a clear understanding of the context from which this situation arose and provided a solid foundation from which to address the issue at hand. In advance of adopting this process, the parties undertook some research. It transpires that this approach has been used in land claim cases in Australia. It worked well and, where appropriate, is to be recommended.

BACKGROUND

[7] This is about our history. Any understanding of this case must begin there. It is necessary to place ourselves on the lands, now part of the province of Ontario, north of Lake Superior (the place) and to 1885 (the time).

[8] The geography of interest is marked by the Michipicoten-Moose Waterway. Originating at Dog Lake, the Michipicoten River flows southwest and empties into Lake Superior forming part of the Great Lakes watershed. Originating at Crooked Lake, the Missinaibi River constitutes the major branch of the Moose River which flows northeast into James Bay, thereby forming part of the Arctic watershed. The lands impacted by the former were included in the 1850 Robinson-Superior Treaty. The latter, those that were part of the watershed flowing to the north, were not. This case is concerned with the circumstances that brought those lands into treaty; that is, the formation of Treaty No. 9.

[9] The height of land which separates the two watersheds is found between Dog Lake and Crooked Lake. The Canadian Pacific Railway was completed in this area in 1885. The track crossed the waterway at Dog Lake Narrows which is just south of the height of land. The settlement that came to be known as Missanabie[^1] was established adjacent to the railway just west of where it crossed Dog Lake.

[10] Two groups belonging to the Algonquin language family historically used and occupied the Michipicoten-Moose Waterway. The Ojibway used and occupied the Michipicoten River, just south of the height of land and south to Lake Superior. The Cree and Ojibway used and occupied the region north of the height of land. The completion of the railway changed the nature of the fur trade. It broke the monopoly of the Hudson’s Bay Company, producing independent traders. This new opportunity attracted aboriginal peoples, some from considerable distances, including Cree who usually traded at Moose Factory. There is evidence that the Cree who gathered at Missanabie (the “Missanabie Cree”) originated from families whose hunting grounds were in the Moose River Basin and had traded primarily at Moose Factory.

[11] In the years beginning in the mid-1880’s and extending to the early 1900’s, the Ontario and Dominion governments became increasingly aware of the disturbances to the lives of First Nation peoples who lived north of the height of land. The first request for a treaty was made shortly after the Canadian Pacific Railway was built. In 1885, Edward Borron, a stipendiary magistrate for the province of Ontario, wrote that the First Nations at New Brunswick House wanted a treaty:

…[They] were exceedingly anxious that a treaty should be made with them. I point out that the line of the Canadian Pacific Railway had been located, and runs for a considerable distance through their hunting-grounds; that treaties had been made years ago with every other band of Indians similarly situated, and that it was only right a treaty should be made with them. That the claims of these Indians and those at Flying Post and MATTAWAGAMINQUE in the KINGOGAMASSEEE district had been overlooked or entirely unaccountably neglected by the Indian Department at Ottawa, was also represented. Nothing, however, has been done up to the present time.[^2]

[12] A few years later, in 1899, the federal Inspector of Indian Agencies and Reserves, and Duncan Campbell Scott, at the time an accountant with the federal Department of Indian Affairs, and, later, a Treaty No. 9 Commissioner, visited New Brunswick House. They met with First Nation members who travelled long distances to ask for a treaty. Their game was disturbed, their livelihoods were being interfered with, their rights were being trespassed upon, and they had heard that more developments in the region were planned.[^3] In 1901, First Nation members living near Osnaburgh Post prepared a formal petition for a treaty. The petition described development in the region, included a request for annuities, and said that they had already “…discussed the location of the land we would like to reserve for the use of ourselves and descendants”, stating that “white men are already building upon the land which we desire to retain..."[^4]

[13] These and other reports indicate the interests of the First Nations in a treaty for the area north of the height of land.

[14] Agents were asked to provide information as to the population and location of First Nation members who lived there. They did, along with observations confirming the interest in a treaty for the area:

One Indian Agent (Nichols)…

…obtained considerable information as to the number of Indians residing at points tributary to Biscotasing and Missinabie and dwelling to the north of the railway of the Canadian Pacific Co. who are desirous from the reasons set forth in their petition to enter into a treaty with the Crown and have reserves set apart.[^5]

Another Indian Agent (Hodder) stated:

[E]ach summer for a number of years I have been asked by Indians from the North if there was any talk of a Treaty, last summer I informed those with whom I came in contact that a Treaty was under consideration and that they would be informed later of the decision arrived at by the Government.[^6]

[15] The first Agent (Nichols) noted that “…in the immediate neighbourhood of Missanabie there are about 100 more…”[^7] non-treaty Indians and the second (Hodder) that “quite a number of the English River, and Moose Indians are to be found at Chapleau, Missanabie, Montizambert, on the line of the Canadian Pacific Railway..."[^8] Early in 1903, an Indian Affairs synopsis repeated the estimate for the non-treaty population at Missanabie as being 100. It went on to observe that the Indians at that and another location “were there temporarily but came from the district in question”.[^9]

[16] By August 1903, the Deputy Superintendent General of Indian Affairs, Frank Pedley, recommended that the new treaty follow the numbered treaty model rather than taking the form of an adhesion[^10] to the Robinson treaties (the Robinson-Superior Treaty and the Robinson-Huron Treaty). Frank Pedley also recommended the “[s]etting apart of reserves at points to be chosen by the Indians at such areas as may be agreed upon”. The geographic scope of the new treaty was to be limited to the province of Ontario. It was thought that 2,365 Indians would be involved in such a treaty. For the purposes of financial planning, the population was estimated at 3,000.[^11]

[17] At an earlier time (April 16, 1894), Canada and Ontario had agreed that “any future treaties with the Indians in respect of territory in Ontario… shall be deemed to require concurrence of the Government of Ontario."[^12] With this in mind, Frank Pedley wrote to E.J. Davis, the Ontario Commissioner of Crown Lands. He informed the province of Canada’s intention to negotiate the new treaty. Pedley informed Davis that, among other terms, Canada proposed to set apart “reserves of sufficient area in localities chosen by the Indians with special regard for their needs”. These reserves were to be surveyed and confirmed by Ontario. The First Nations population was reviewed. The population estimate for Missanabie remained at 100.[^13]

[18] Ontario expressed concern for the idea that the choice of reserve would be left largely to the First Nations. While acknowledging that it was desirable “to comply with Indian sentiment”, the province could not agree to locations other than ones which were satisfactory to it and of a size that would not be larger than Ontario “may determine”. This statement was made on the understanding that the formula for sizing reserves utilized in Treaty No. 3, being one square mile to each family of five, would be adopted in the new treaty. It could be that in order to accommodate this, two or three reserves would be provided to a single band. The setting apart of a large block of land as a reserve was thought, by Ontario, to be very prejudicial to “…the settlement and advancement of the country".[^14]

[19] After an exchange of drafts, the following provision was agreed to be appropriate for inclusion in Orders-in-Council to be promulgated by both the federal and provincial governments:

…The 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.[^15]

[20] While this was not what the federal representatives had proposed, they determined that this clause did not exclude the First Nations from a voice in the selection of the reserves. Their wishes and the views of the Commissioners should, through the process of negotiation, arrive at an agreement satisfactory to both sides. As Canada saw it, the provision allowed that the First Nations would retain a voice in the selection of the reserves.[^16] It was thought that the presence of a Commissioner selected by the province of Ontario would likely render whatever decision was made more satisfactory.[^17]

[21] The province and Canada agreed on the form of the treaty. The provision with respect to reserves (the reserve clause) was as follows:

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...[^18]

[22] 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. 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.[^19]

[23] The three commissioners were appointed: Duncan Campbell Scott, Samuel Stewart and Daniel George MacMartin. The last of the three (MacMartin) was Ontario’s representative. On July 3, 1905, the Canadian and Ontario governments passed reciprocal Orders-in-Council confirming the terms of their agreement pertaining to what was, by then, identified as Treaty No. 9.[^20]

[24] The two governments confronted the question of the logistics of meeting with the First Nations and making treaty. Frank Pedley, on behalf of the federal government, consulted with both E.J. Davis, of the province, and C.C. Chipman, the Commissioner of the Hudson’s Bay Company. Specifically, Frank Pedley sought advice as to whether the chief men of each band or locality should be assembled at different central points (for example: Hudson’s Bay Company posts and railway settlements). For the purposes of this case, it is important to observe that Missanabie was listed in the schedule of population which was included with the letter sent by Frank Pedley to C.C. Chipman. The three historians (expert witnesses) agree that: “Implicitly Missanabie was identified as one of the locations to be visited with a view to negotiating a treaty."[^21] In his response, C.C. Chipman made reference to Indians attached to posts at or near the railway. He explicitly identified Missanabie as one such location confirming it as a place the Commissioners would be required to visit. Among the issues was the length of notice to be provided to the First Nation members. It was the view of C.C. Chipman that for easily accessible populations (for example those, like Missanabie, that were near the railway), one month advance notice should be given to arrange a treaty meeting. For the more remote locations (for example, those which were associated with isolated Hudson’s Bay Company posts which were accessible only by water), advance notice would have to be given by Christmas or, at the latest, March, to assemble for treaty negotiations for dates fixed between June 15 and July 15. This presumed that the meetings would have to take place over two years.

[25] Initially, it was hoped that these meetings would take place over the course of 1904 and 1905. The concurrence of Ontario to the terms of the Treaty, as proposed by the federal government, was not obtained in 1904. No Treaty meetings were held that year. The question of logistics arose again in 1905. Frank Pedley requested that C.C. Chipman provide an itinerary for a travelling commission that began with meeting dates to be held at the more remote Hudson’s Bay Company posts as opposed to those at or near the railway. In delivering the itinerary, C.C. Chipman confirmed that it should begin with a “long trip” to the more remote locations. The second trip, to the more accessible posts at or near the railway, could be completed if undertaken immediately thereafter. C.C. Chipman assured Frank Pedley that both trips could be completed within one season, provided the treaty commission reached the railway after the “long trip” by August 23.

[26] The negotiations between the province and Canada continued throughout June 1905. The treaty Commissioners were unable to depart from Ottawa until June 30, 1905. They were already behind the schedule. The “long trip” was to begin with the departure from Dinorwic on July 1, 1905. The Commission did not arrive there until July 2, 1905. It was immediately made clear to the Commissioners that they were unlikely to be able to complete their work according to the schedule that had been set. They were likely to become stranded on lakes near the railway that were known to be subject to early freezing.[^22]

[27] The Commissioners determined to complete their work over two summers. They would conclude the 1905 meetings at Matachewan and resume in May 1906, gathering certain First Nation peoples near the railway at three settlements, including Missanabie:

We practically decided to go to Matachewan after we leave Abitibi-route to be left to Mr. Taylor of HBC Mattawa-We also propose about the middle of May to assemble heads of families from Metagami and Flying Post at Biscotasing-and pay for them there-to visit Chapleau and pay all non-treaty Inds there-to go to Missanabie + pay for Tr Inds there. Mr. King of Dinorwic will give me a detailed list, send also for the Montizambert Indians to come to Missanabie. Thence go to NB house (thence go to) Heron Bay and Long Lake-This can be done in about 30 days and a clean sweep shall have then been made of all non-Tr Inds of that District-and present of those on the line of railway.[^23]

[28] As matters transpired, the Commission was unable to complete its 1905 schedule as had been contemplated. The Commissioners were required to return to Abitibi (which had been expected to be the last stop in 1905) in 1906 in order to hold a full Treaty Council at that post.[^24] A new itinerary and schedule were developed for 1906. Save only for slightly modified dates of arrival at specific locations, it was followed. Details of the nature of the treaty-making activities planned for 1906 are found in a letter from Frank Pedley to Aubrey White (Assistant Commissioner of Crown lands for Ontario), dated February 26, 1906. After reporting on aspects of the work done in 1905, the letter went on:

Next season, the Commissioners proposed to make treaty at Abbittibi, Mattachewan, Metagami, Flying Post, New Brunswick House and Long Lake. They also expect to meet and pay a number of Indians who have come from Moose Factory and are located along the line of railway. It is somewhat difficult to make an accurate estimate of the Indians yet to be met with, but this statement may be taken as approximately correct.[^25]

[29] This is consistent with the observation made earlier that, among those members of First Nations who gathered near the railway, in response to the opportunities it offered, were Cree who had migrated from (“had usually traded at”) Moose Factory (see para. [10], above).

[30] The February 26, 1906 letter from Frank Pedley outlined two different methods of including First Nation peoples in Treaty No. 9. The first method, “to make treaty”, was understood by the Commissioners and Frank Pedley to mean 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.[^26] The three historians referred to this as the “predominant practice”. In contrast, the second method, “to meet and pay”, dispensed with the ceremonials, treaty council, signed adhesion, provision of flag and a copy of the treaty, and focused on establishing pay-lists, explaining what acceptance of the money by First Nation members involved, and distributing gratuity payments.[^27] 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 a gratuity of $4.00 per year.

[31] The 1906 plans to make treaty described in the February 26, 1906 letter were acted on during the Treaty No. 9 expedition of that year. Formal adhesions were obtained at Abitibi, Matachewan, Matagami, Flying Post, New Brunswick House, and Long Lake. In contrast, the Commissioners reported holding meetings with First Nation populations at Biscotasing, Chapleau, Missanabie, and Heron Bay for the purpose of distributing gratuities to family heads. Neither their diaries nor their joint report (October 15, 1906) record that the Commissioners met with leaders or selected representatives at any of those locations (including Missanabie). There is 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 the Commissioners met at these locations.

[32] There was an exception to this pattern. At Chapleau, the Commissioners agreed to a request by Ojibway and Cree to grant two small reserves (one for each group). These reserves did not conform to the entitlement formula described in Treaty No. 9.

[33] The making of Treaty No. 9 began and carried on through the summer of 1905. The Commissioners met with representatives of the First Nations:

• at Osnaburgh (the Commissioners arrived there on July 11, 1905)

• at Fort Hope (where a treaty council was held on July 19, 1905)

• at Marten’s Falls (where the treaty was signed on July 25, 1905)

• at English River (which the Commissioners reached on July 29, 1905)

• at Fort Albany (which the Commissioners reached on August 3, 1905)

• at Moose Factory (which the Commissioners reached on August 8, 1905)

• at New Post (which the Commissioners reached on August 19, 1905) and

• at Abitibi Lake (which the Commissioners reached on August 30, 1905).

[34] At each of these locations, the Commissioners “made treaty” with the First Nation representatives (as opposed to “meet and pay”). The exception was Abitibi Lake. As had been foreseen, it was too late for the Commissioners to complete their task at this location during 1905. By the time they arrived, most of the First Nations people had left for their hunting grounds. Nonetheless, the Commission met with those who were present, explained the purpose of their visit and committed to return the next year to submit the treaty for acceptance.

[35] The principal concern of the First Nations was the misunderstanding that, in future, their hunting and fishing would be restricted to the reserves that were set aside in their name. On each occasion that this question arose, the Commission explained the error. The reserves were for the exclusive use of the First Nations; the reserves were to be theirs. Their right to hunt and fish was not restricted to the reserve, which was to be a home where no white man could interfere or trespass. They could hunt and fish as they had in the past. The records of the Commission are not consistent, but it appears that reserves were set aside and, generally, sized based on the formula of one square mile for every family of five or in like proportion.

[36] English River, Fort Albany and Moose Factory are of particular interest. The joint report of the Commissioners notes that, at English River, there were few First Nation members in attendance, the rest had gone to the railway to trade. Those that were there were not thought to be representative of a separate band. They were a branch of the Albany Band. “[I]t was not thought necessary to have them sign the treaty, and they were admitted as an offshoot of the larger and more important band."[^28] Nonetheless, the treaty having been explained to them, the First Nation members stated they were willing to come under its provisions and were informed and understood that, by accepting the gratuity, they would be taken to have entered the treaty.[^29] In these circumstances, without the formalities of signing the treaty, having a feast, electing a chief or providing the chief with a flag and copy of the treaty, a reserve was provided for:

…we arrived at 5 p.m. and forthwith proceeded to get the pay sheets in order, calling up the Indians who had assembled by families, carefully counting and paying them-as there were so few in the band we decided to assign them to the Albany band as they are also Crees and to give them a reserve on the English River where they could be paid treaty money each year.[^30]

[37] The Schedule of Reserves contains a description of a reserve at Kenogami (or English River) in Ontario, with an area of 12 square miles.[^31]

[38] I pause to point out that the three historians add the opinion, shared by each of them, that “…as of 1906 the English River Indians were treated by the Department of Indian Affairs as a separate band with its own chief.” They go on to say that: “No specific research has been done to determine the circumstances or reasons for these changes."[^32]

[39] On the way from English River to Fort Albany, a party of members of the Albany band were paid the gratuity and, thus, it would seem, based on the statements made at English River, they would have been taken to have agreed to be governed by the treaty. It does not matter because, at Fort Albany, a treaty-making process, albeit what appears to have been an abbreviated one, was carried out. No Chief was elected but the First Nation members were paid the gratuity, a feast was held and speeches by the Chiefs present were made. Although the joint report of the Commissioners does not mention the selection of a reserve, the Schedule of Reserves contains a description of a reserve at Fort Albany:

…the question of the reserve to be set apart…was settled to the satisfaction of all.[^33]

[40] Moose Factory is located on James Bay. It is far removed from Missanabie. The Commissioners and the representatives of the First Nations present went through the formalities, made treaty and set aside a reserve that was to the satisfaction of both the Commissioners and the representatives of the First Nations. It should be remembered that the Missanabie Cree were thought to have originated as part of the Moose Factory band and to have moved from there to the railway at Missanabie. There is nothing to suggest that the Missanabie Cree were accounted for or included in any calculation of the size of the reserve agreed to, or identified, at Moose Factory.

[41] The Commission returned to Abitibi Lake on June 23, 1906. From there, and through the summer, they proceeded on to:

• Matchewan (the Commissioners arrived on June 19, 1906)

• Mattagami (the Commissioners arrived on July 7, 1906)

• Flying Post (the Commissioners arrived on July 15, 1906)

• Biscotasing (the Commissioners first arrived on July 11, 1906 on their way to Flying Post and returned on July 19, 1906)

• Chapleau (the Commissioners arrived on July 20, 1906)

• New Brunswick House (the Commissioners reached on July 25, 1906)

• Missanabie (the Commissioners first arrived on July 22, 1906 as the departure point to New Burnswick House and returned on July 29, 1906)

• Long Lake (the Commissioners arrived on August 8, 1906) and

• Heron Bay (on their return trip, the Commissioners stopped there on August 14, 1906).

[42] At most of these communities, the Commissioners and the First Nations representatives made treaty: the formalities were followed, the gratuity was paid and a reserve identified. This was not always the case; there were exceptions.

[43] At Biscotasing, the Commissioners found a considerable First Nation population which they understood to be “stragglers from the Spanish River band of the Robinson treaty, and from Flying Post and Mattagami”. The gratuity was paid but no adhesion to the treaty was sought and no reserve was selected.[^34] This stands as another example of a circumstance where First Nation members were bound to the treaty by the receipt of the gratuity but not, apparently, associated with selection of a reserve.

[44] In respect of Chapleau, the joint report of the Commissioners notes:

It was not necessary to make treaty with the Indians at Chapleau, as they belonged to bands residing at Moose Factory, English River and other points where treaty had already been made. They were, however, recognized as members of the bands to which they belong, and were paid the gratuity due them, after being informed as to what the acceptance of the money by them involved. Reference to the schedule of reserves will show that small areas are recommended for the Ojibways and Crees at this point. Large reserves having been set apart for the bands to which they belong at other points in the province, it is only thought advisable and necessary to give them a sufficient area upon which to build their small houses and cultivate garden plots. The Ojibway reserve is contiguous to the land purchased by the Robinson treaty Indians which has already been considerably improved.[^35]

[45] The Schedule of Reserves contains a description of a reserve for the “Ojibways-Chapleau” of 160 acres and another reserve for the “Moose Factory Crees-Chapleau” also of 160 acres.[^36]

[46] At their last stop, Heron Bay, the Commissioners paid the gratuity to First Nation members associated with the English River though, at the time, residing at Montizambert. This was the group that, in 1905, the Commissioners did not recognize as a separate band but as part of the larger Albany band. By 1906, for reasons the three historians are unable to explain, this had changed (see: para. [38], above). How this affected the First Nation members who met with the Commission at Heron Bay in 1906 is not, so far as I am aware, explained.

[47] The payment of the First Nation members at Heron Bay was the last official duty carried out by the Commissioners in connection with the making of the treaty.

[48] Before that, the Commissioners attended Missanabie. Their joint report indicated that all that took place there was the payment of the gratuity:

Payments were made on the 30th to 98 Moose Factory Indians who live at Missinaibi.[^37]

[49] When the Commission stopped at Missanabie on its way to New Brunswick House (see: para. [41], above), Commissioner Scott telegraphed the headquarters of Indian Affairs and asked for them to “…send last years Moose Factory [sic] pay-list or copy as soon as possible."[^38] Upon their return to Missanabie, the Commissioners were “glad to find the letters and papers awaiting us".[^39] The three historians note that this was the only instance in which the Treaty No. 9 Commissioners forwarded such a request.[^40] It does seem, from this, that the Commissioners had made some connection between the First Nation members present at Missanabie and the First Nation communities in Moose Factory.

[50] There appears to be some confusion about the origins of the 98 First Nation members who received the gratuity at Missanabie. They were not all Cree:

The greater part of the day was taken up in enquiring into the claims of the Ojibway and Cree Indians residing at Missanabi. In all ninety-eight Indians were paid the gratuity.[^41]

[51] During their initial stop at Missanabie, on July 22, 1906, Commissioner Stewart described the two populations as separate, indicating that Missanabi(e) Station was a small village, mostly of Crees and Ojibways. “The Crees live[d] west of the CPR track, while the Ojibway’s [were] on the east side."[^42]

[52] The pay-list for the first payment made in 1906 enumerates 62 people in 24 family groups. There were four individuals absent at the time of payment. The inclusion of their names on the pay-list suggests that a local person familiar with the Cree who were present identified the absentees as belonging with others who were included.[^43] Assuming that 98 individuals were paid at Missanabie, there are 36 that have not, so far, been accounted for. Of those identified in the New Brunswick House pay-list, 15 persons were noted as having been paid at Missanabie. These were likely Ojibway.[^44] The three historians suggest that the most reasonable explanation for the remaining 20 or 21 persons (there is some uncertainty as to whether the total is 97 or 98[^45]) is that they were paid the gratuity at Missanabie, but that this fact was recorded on the pay-list(s) of one or more other bands without an accompanying notation that Missanabie is where the payment was made.[^46]

[53] An understanding of the treatment of the Missanabie Cree requires an examination of the pay-list from Moose Factory. Were these individuals counted as members of the Moose Factory Cree band for the purpose of calculating the size of the reserve it was to receive? The Moose Factory pay-list first payment in 1905 shows that 337 individuals were paid. No absentees were noted. The 66 square miles of reserve land assigned to the Moose Factory Cree, in 1905, is slightly below but very closely approximate to the maximum allowable under the treaty formula. No reserve was set aside for the Cree at Missanabie. It was one of three locations visited by the Commission where no signed adhesions were sought and no reserves were selected. The other two were Biscotasing and Heron Bay.[^47] Nor was the reserve at Moose Factory enlarged to accommodate the 62 people paid as Moose Factory Crees at Missanabie.[^48] The three historians are of the opinion that because the Commissioners had asked for and likely received the pay-list for Moose Factory from the preceding year (1905), they were likely aware that there was no duplication of names between the 1906 pay-list for the Moose Factory Crees at Missanabie and the Moose Factory Band as paid in 1905.[^49]

[54] The three historians note that Commissioner Stewart made no mention of either Ojibway or Cree requests for reserves at Missanabie.[^50]

[55] I pause again, this time to observe that the reports and diaries of the Commission and the Commissioners consistently say that the First Nation representatives asked questions and understood the explanations about and implications of the treaty. There was, however, at least one comment that suggests that this might not be entirely accurate. The three historians reported that Robert Laurence, an apprentice clerk at Mattagami Post at the time of the treaty, was interviewed in 1974. He is quoted as saying:

If there was any clause in the treaty that was put in there against that [that the local people could hunt over surrendered lands just the same as before the agreement]… the Indians didn’t understand it, and I know that quite well, because they didn’t understand half of what was going on anyway.[^51]

[56] Later, there was some confirmation of this failure to understand. On or about December 15, 1906, the Chief of the Mattagami Band asked to have the size of their reserve increased. On January 22, 1907, J. D. McLean, the Indian Affairs Secretary, made clear this was not possible.[^52] Robert Laurence sheds light on the First Nation understanding of how the reserve was selected at the time of treaty. According to Robert Laurence, the Chief at Mattagami agreed to accept a reserve, not where the band initially wanted it to be located, but at a spot suggested by the local manager of the Hudson’s Bay Company. The Chief agreed at the time of the signing of the treaty and then asked for a change five months later. This suggests that the Mattagami people did not understand that there would be no opportunity to make adjustments to their reserve.[^53] It would appear that other of the First Nations suffered from the same misunderstanding. There were some complaints and requests for changes made shortly after the time of the treaty:

(a) in 1912, Indian Affairs asked Ontario to make a change to the Moose Factory Reserve boundaries to accommodate a request from the band. The change would not have affected the total acreage of the reserve.[^54] Ontario refused;[^55]

(b) the quality of the land of the Flying Post Reserve, as surveyed, was protested on behalf of the band by the Bishop and the Archdeacon of Moosonee.[^56] The three historians report that there is no record of a change being made pursuant to these requests;[^57]and,

(c) while the Department of Indian Affairs agreed, in 1911, to change the location of the Osnaburg Reserve north of the Albany River in the North West Territories, Ontario refused to change the location of the reserve in Ontario.[^58]

There were changes that were made but of what substance?

(d) Ontario agreed to substitute wording in the Schedule of Reserves in order to correct an error in the description of the Mattagami Reserve[^59]; and,

(e) when the Fort Hope reserve boundaries were located in 1909, in preparation for the survey, the Ojiway requested that the western boundary be moved and, as there were no conflicting interests, the surveyor “made the survey in accordance with their request".[^60]

[57] The three historians concluded that the requests by the Moose Factory, Flying Post, Osnaburg and Fort Hope Bands shortly after treaty suggests that they were under the impression that it might be possible to change the reserve locations as established at the treaty meetings.[^61]

[58] In another case, it was suggested that the perspective of the First Nation members was misrepresented. As was part of the formality of making treaty at Long Lake, the Chief spoke. He complained about the prices charged by the Hudson’s Bay Company. When the criticism was interpreted into English by the Hudson’s Bay Company trader, he presented it as a compliment.[^62]

[59] The sizing of the reserves that were selected essentially respected the directive of the treaty. While they did not meet exactly the requirement of one square mile for every family of five (or in that proportion), they were close to or approximated that result. For example, the 337 individuals who were paid at Moose Factory received a reserve of 66 squares miles, which is just short of the treaty formula. Several others (Marten Falls and New Post) received slightly more.[^63] At Long Lake, where payments were made to 135 individuals, the reserve was calculated at 27 square miles, which precisely matched the upper limit. The same was true for New Brunswick House.[^64] At locations where absentees were noted, the total of all those who were actually paid, plus the approximate total of all absent individuals, was evidently used to calculate reserve sizes (Osnaburgh, Marten Falls, English River and Fort Albany).[^65]

[60] The three historians do note the confusion or error in the sizing of the reserve at Moose Factory. As they see it, at the time, the Commissioners were likely aware that “quite a number of English River and Moose Factory Indians are to be found at Chapleau, Missanabie Montizambert, on the line of the Canadian Pacific Railway”, or that numerous First Nation members were “residing” or “dwelling” at various points north of the railway.[^66] To the extent that these references are to Crees, who originated in Moose Factory, and include those residing in Missananbie, they were not accounted for in the sizing of the reserve at Moose Factory.

[61] There were two exceptional cases where there was no apparent intent to have the reserve size meet the maximum allowable under the treaty (one square mile for every family of five). The first is where the Ojibways and the Cree at Chapleau were granted reserves – each 160 acres in size (see paras. [45] and [46], above). The three historians suggest that the statement of the Commissioners that large reserves that are set apart for the bands elsewhere, as well as the small size of these tracts and the limited uses to which they were to be put, suggests that these 1906 allocations were not intended to conform to the Treaty No. 9 reserve entitlement and selection provisions. How they came to be 160 acres is not clear.[^67] Understood in this way, they stand outside the treaty.

[62] The reserves, having been located and the sizes open for determination, they needed to be surveyed. On February 13, 1907, an Order-in-Council approved and confirmed the selection of the reserves that were within the province of Ontario. The responsibility for undertaking the surveys fell to the government of Canada.[^68] The original plan called for the reserves to “be surveyed and confirmed by the Ontario Government within one year after selection by the Indians, or at any time after the expiry of one year upon the request of this Department".[^69] The 16 reserves named in the 1905 and 1906 Schedules of Reserves 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.[^70] With only a few exceptions, the surface area of the reserves corresponded to those specified in the Schedules of Reserves attached to the treaty. One of the exceptions related to the particular reserve set aside for the “Moose Factory Crees at Chapleau”. The size of this reserve was augmented to account for low land designated as foreshore. Whereas the specified reserve was to be 160 acres in area, the surveyed reserve was 267 acres to make up for land that was under water. This change was approved by Order-in-Council.[^71]

[63] 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.[^72] The size of the reserves was fixed by the treaty, to be calculated from the population at the time of the treaty.

[64] The sizing of the reserve at Fort Hope requires some discussion. At the time of the treaty being made, it was not possible, with any degree of certainty, to establish the population upon which the area of the reserve could be based. The Commissioners’ joint report of November 6, 1905 mentions that the Hudson’s Bay post at Fort Hope was “…the meeting point of a large number of Indians, certainly 700....".[^73] This rough estimate was seven times greater than the number (100) provided in 1902, to the Department of Indian Affairs by Indian Agent Hodder.[^74] An unspecified portion of the Fort Hope Band was not present during the Treaty Council.[^75] The Fort Hope pay-list that was prepared at the time of the treaty indicates a total of 390 persons were paid. They were associated with 104 family heads. However, no less than 63 additional family heads were named but were not paid the gratuity. They were not present.[^76] Since each of these families is of unspecified composition and strength, the total number of absentees could not be ascertained from the Fort Hope pay-list alone.[^77] On February 26, 1906, Frank Pedley provided a summary of those paid and the approximate number of absentees. He confirmed that 390 were paid at Fort Hope but he listed 244 as absent.[^78]The three historians indicate that it is not clear how this latter number was determined. In other locations, particularly Fort Albany, the number of individuals who were paid was added to those deemed to be absent and that number used to identify the size reserve.[^79] The 1906 pay-list indicates that many who had not been paid in 1905 were paid in 1906. The paid population rose to 470 individuals organized under 133 family heads. Over 30 families had to have been listed on the first pay-list, but had not been paid the initial gratuity at the time of treaty, and again were not paid in 1906.[^80] In 1907, the Fort Hope pay-list indicated that only 405 individuals were paid. An accompanying notation indicates “78 unpaid”. This suggests a total of 483.[^81] Again, this population figure did not include most of the 32 missing family heads who appeared on the initial pay-list, but who had never been paid. Several of these were “cancelled”. Three were paid for the first time (without arrears) and were deemed to have been “taken into treaty”. Still, over 20 family heads remained on the pay-list despite never having been paid. [^82]

[65] Two years after the treaty, there was still uncertainty about the Fort Hope population. What is important about this is that those involved were attempting to verify the population as it had been in 1905, when the treaty was made. The people removed or thought never to have been part of the Fort Hope population and those that were paid were assumed to have been absent at that time.

[66] The uncertainty continued in 1908. The Fort Hope pay-list shows payments to 536 individuals. A family of four which had been issued a ticket number on the original pay-list was finally “taken into treaty”. Further, 69 persons under 15 family heads originally listed in the 1905 pay-list were “paid [for the] first time”. Still, 6 family heads continue to appear on the pay-list although they had never been paid. According to the 1909 Fort Hope pay-list, 518 individuals were paid that year. While a family of 9, whose head had appeared on the first pay-list, was now paid for the first time, this increase was offset by a high mortality rate. The total population declined. Four years after the treaty had been made, there were still a number of family heads listed who had never been paid. A few had their names removed, while others were accompanied by a notation “not known”. The rest were left unexplained.[^83]

[67] For all that could be learned, implied or assumed and used from the pay-lists to size the reserve at Fort Hope, the government did not rely on them. In or about 1909, the government appointed William Galbraith to survey this and other reserves. William Galbraith was given liberty to use his own judgment “in all cases where the same is required".[^84] At the time of his appointment, the size of the Fort Hope Reserve had not yet been determined. While it is unclear where the number came from, William Galbraith based the size on the understanding that there were 100 families with an average of five persons in each one. The surveyed reserve is 100 square miles.[^85] The reserve was confirmed in 1931 by an Order-in-Council made by the government of Ontario.[^86]

[68] Over time, the years after 1905 and 1906, some additional reserves were created and set aside. Other First Nation members joined the treaty. Adhesions to Treaty No. 9 were taken in 1929 and 1930. Reserves were selected, described and surveyed, the latter “over a long period of time”. In some instances, adjustments were made in their size for reasons that are unknown.[^87] Additional reserves were created for Treaty No. 9 bands beyond those described in the 1905-1906 treaty and 1929-1930 adhesions. Some were reserves identified for newly-created bands made up of splinter groups or portions of bands which had adhered to the treaty. Some new bands and reserves were created from portions of Treaty No. 9 bands and families from other treaty areas. A few new reserves were set aside to protect areas of settlement. In some cases, existing reserves were surrendered and a larger number of acres were divided between splinter groups or amalgamations. In some cases, new reserves combined a portion of the acreage to which the original band was entitled to under the treaty description with additional quantities of land provided for “socio-economic” reasons.[^88]

[69] Finally, in reviewing the history, it is necessary to come to some understanding of the treatment of the “Missanabie Cree” in the time following the making of Treaty No. 9. In the years following 1906, the Department of Indian Affairs maintained separate and discrete pay-lists for the Cree at Missanabie. In 1906, these people were identified as “Moose Factory Crees at Missanabie Band” while the headquarters’ version identified them as “Moose Factory Crees Band Paid at Missanabie”. In the years from 1907 to 1936, the pay-list for the Cree at Missanabie was usually titled, “Moose Factory Crees”. There was an exception. The pay-list for 1908 was titled, “Treaty No. 9 Missanabie”. Beginning in 1937, the pay-lists dropped the modifier, “Moose Factory”, and began referring to simply the “Missanabie Cree(s)”. Starting in 1943 and continuing until 1948, other locations, such as “Chapleau” and “Nipigon”, were also featured in the titles of the Missanabie pay-lists. After 1955, the Missanabie Cree were no longer associated with other locations.[^89]

[70] In the official census forms maintained by the Department of Indian Affairs, the Missanabie Cree were variously listed as “Missanaibi” (1906 to 1910), “Moose Factory Crees at Missanabie” or “Moose Factory Crees, Missanabie” (1911 to 1944) and “Missanabie Cree(s)” (1949 onwards).[^90] Over a period of time following the making of Treaty No. 9, in these records, the Cree who were found at Missanabie were associated with the larger band from Moose Factory. But, after a time, that connection was withdrawn from their separate identification.

[71] While the Cree at Missanabie were predominately identified as “Moose Factory Crees” in pay-lists until 1937, and on Census Returns until 1949, 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.[^91] Some individuals or families found on the early Missanabie pay-lists were, in time, paid at Moose Factory, or elsewhere. This was explained as “gone to Moose Factory” or “living at Moose Factory”. If such individuals were consistently associated with another location and an official transfer was authorized, their names were eventually dropped from the Missanabie pay-lists.[^92] From 1937 onwards, the Missanabie pay-lists dropped the modifier, “Moose Factory”, and began referring to the people simply as “Missanabie Cree(s)”. At various times, the Missanbie 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”.[^93]

[72] In 1913, H. A. West, the Indian Agent responsible for Chapleau, filed an annual report summarizing the state of his jurisdiction. For reasons that remain unexplained, he associated the Crees at Chapleau with those who were paid the gratuity at Missanabie:

Tribe or Nation.-These Indians are of the Cree nation, and came here from James bay. Quite a number of them are now living and paid at Missinaibi.

Reserve.-Their reserve contains 160 acres, fronting on the Kebesquashing river, near the village of Chapleau.

Population.-The population, including absentees, at Chapleau is 75, and at Missinaibi, 62.

Health and Sanitation.-Nearly all these are residents of the respective villages of Chapleau and Missinaibi and are enjoying good health.[^94]

[73] The three historians note that it is unclear why H. A. West subsumed the Missanabie Cree under his section on the Chapleau Cree. It is their opinion that while both groups largely shared a common region of origin and certain extended families may have held ancestral ties of kinship, there is no historical basis for considering the Missanabie Cree as a sub-group or residential splinter group of the Chapleau Cree. The reserve selected in 1906 for the Cree at Chapleau (described in the Schedule of Reserves under the heading, “Moose Factory Crees-Chapleau”) was evidently intended specifically for that group. There is no evidence that the Treaty No. 9 Commissioners intended it to be used in common with the Cree at Missanabie. This reserve was not set aside for the Missanabie Cree and cannot be taken as fulfilling any entitlement to a reserve they may now be recognized as having. More fundamentally, the available evidence suggests that the Commissioners, while identifying the Cree both at Chapleau and Missanabie as “Moose Factory Cree”, nevertheless, treated them as separate populations residing at different locations, and they assigned distinct and discrete pay-lists to each group.[^95]

[74] At a point in time, there was some confusion as to whether, in fact, a reserve had been set aside for the Missanabie Cree. In 1904, the Department of Indian Affairs arranged for the purchase (using annuity monies) of two parcels of land by two groups of Robinson-Superior Treaty Ojibway, which were set aside and confirmed as Reserve No. 61 (Chapleau) and Reserve No. 62 (on Dog Lake just south of Missanabie).[^96] A 1905 Order-in-Council, made by the government of Ontario, authorized the transfer of the land purchased by the Michipicoten Ojibway to the Department of Indian Affairs in trust for “Indians of Missanabie and the Indians of Chapleau, respectively”.[^97] Indian Reserve No. 62 became known as Missanabie Indian Reserve No. 62 and was listed in the official Schedules of Reserves (1913, 1928) as belonging to the “Ojibbewa”.[^98] In 1950, at the time of an investigation into another matter, certain Department of Indian Affairs’ records indicated that Missanabie Indian Reserve No. 62 belonged to the Missanabie Cree, and not the Michipicoten Ojibway.[^99] This misidentification persisted until 1965 when the error was noticed. On January 14, 1970, an Order-in-Council, made by the government of Ontario, confirming the transfer of land for Reserve No. 62 was registered in the Indian land registry. However, when the Reserve General Abstract was created, it continued to list Missanabie Indian Reserve No. 62 “as being held by the Missanabie Cree Band” despite the fact that this error had been uncovered five years earlier. Finally, on December 10, 1998, a Registrar’s Order declared that Missanabie Indian Reserve No. 62 was “established for the use and benefit of the Michipicoten Band of Indians.[^100] Thus, Indian Reserve No. 62 was never and should not be ascribed as having satisfied any right the Missanabie Cree (as represented by the plaintiffs in this case) have to a reserve as a result of entering Treaty No. 9.

[75] In understanding the foundation for the independent claim of the Missanabie Cree to a reserve, it is helpful to give some thought to how the Missanabie Cree saw or identified themselves and how they were seen and identified by others. The three historians refer to this as “ascription” both “self-ascription” and “other-ascription”. There is insufficient evidence to determine how the ancestors of the Missanabie Cree First Nation saw themselves during the years shortly before or at the time of the Treaty (1906). Although some later went to live at Moose Factory, little is known about whether or to what extent the remainder identified with the band that frequented Moose Factory or whether they had a sense of being or understood themselves to be an independent community.[^101]

[76] More is known about how the Missanabie Cree were seen by others.

[77] In 1902, Indian Agent Hodder observed “quite a number of English River and Moose Indians were to be found at Chapleau, Missanabie, Montizabert, on the line of the Canadian Pacific Railway”.[^102] The three historians say this suggests a belief on the part of officials that the Indians at Missanabie were associated with groups trading at other posts.[^103] This impression was fortified by a 1903 Indian Affairs synopsis that described the Indians at Missanabie and Biscotasing as being there temporarily.[^104] Deputy Superintendent General of Indian Affairs, Frank Pedley, when making plans for the summer of 1906, wrote that the Commissioners “also expect to meet and pay a number of Indians who have come from Moose Factory and are located along the line of the railway”.[^105] The July 23, 1906 request by the Treaty Commission to have the Moose Factory pay-list sent to Missanabie is circumstantial evidence that the Commissioners suspected that some of the Cree at Missanabie were intimately connected to Moose Factory.[^106] This understanding is confirmed by the Commissioners’ joint report which refers to “Moose Factory Indians who live at Missanabie,”[^107] and by the first pay-list which calls them “Moose Factory Crees at Missanabie.”[^108] The Hudson’s Bay Company officials had their own perspective. In his communication, dated May 11, 1904, Hudson’s Bay Company Commissioner, C.C. Chipman, reported to Frank Pedley that certain “Indians” were “attached” to the company’s posts including the one at Missanabie.[^109] To the Hudson’s Bay Company, this would have been understood to mean that the First Nation people trading at the Missanabie Post formed a “trading post band” distinct from other bands (such as the one centred for trading purposes at Moose Factory).[^110]

[78] Looking at the question of ascription from the perspective of socio-political organization, it is of interest to note that the Cree at Missanabie lived separate from the Ojibway who lived there. The two communities were divided by the railway tracks.[^111] The three historians suggest that, at the very least, the Cree at Missanabie had a sense of community distinct from their Ojibway neighbours. This does not help in the matter of their relationship with other Cree peoples, such as those at Moose Factory, or whether they saw themselves as a distinct, politically-autonomous band at this time.

[79] Our understanding of the ascription of others is enhanced by a letter, dated March 20, 1915, written by the manager of the Hudson’s Bay Company, Missanabie Post (P. H. Godsell). The context involves a petition by certain Missanabie Cree for a small tract of land. As we shall see, this was the first documented request for land by a member of the Missanabie Cree. There had been no mention of a leader or spokesman for the Cree living at Missanabie up to that time. The letter was written at the request of James Fletcher and referred to him as “spokesman for the band of Moose Factory Cree Indians resident at Missanabie”.[^112] The three historians suggest that this “other-ascription” demonstrated an understanding that there was a band represented by James Fletcher which, while hailing from Moose Factory, was centred at Missanabie.[^113]

[80] It is not possible to understand from the available record when and how many Cree self-ascribed as members of a band from Missanabie.[^114] What is known is that, by the later 1920’s, there is some evidence that some self-ascribed as members of a “band”. In 1928, Albert Fletcher of Missanabie, whose name appears on the initial and subsequent Missanabie pay-lists, complained of actions taken by a game warden. He made reference to the warden’s actions having been “witnessed by members of our band”. In making his complaint, he asked: “Should a band of Indians be with out [sic] a chief?[^115] The three historians point out that, by this juncture, at least some Missanabie Cree understood that they were members of a “band” independent of Moose Factory and other bands and, as such, warranted their own legally-recognized Chief.[^116] This self-ascription is furthered by another letter by James Fletcher. This one is dated April 16, 1929. It is written to the Deputy Minister of Indian Affairs. It laments that “…our Tribe of Cree Indian [sic] have no reservation here [at Missanabie]”. He also observed that “[o]ur Tribe the Cree Indians are coming out to railroads as there is starvation at Moose Factory at Hudson Bay”.[^117] This is a further example of Missanabie Cree self-ascription.[^118]

[81] The three historians conclude 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. However, documentary evidence from a variety of sources shows how outsiders describe the Missanabie Cree. This evidence is, as the three historians see it, 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 suggests, at the very least, that the Cree had a sense of community distinct from their Ojibway neighbours.[^119]

[82] In 1941, Indian Agent, F. Matters, reported to the Secretary of Indian Affairs (then a Branch of the Department of Mines and Resources) the identity of various chiefs and councillors of bands in his agency. F. Matters identified James Fletcher as chief of the Missanabie Cree Band. F. Matters observed that James Fletcher “is chief of the Missanabie Crees, he happens to live at Missanabie, but he was recognized by others of the Chapleau Cree and Michipicoten Bands as being in charge of that district."[^120]

[83] The Indian Act,[^121] s. 74 deals with the election of Chiefs and Councils. The Missanabie Cree were put under this provision by Order-in-Council P. C. 6016, dated November 12, 1951.[^122] Nonetheless, in a letter, dated August 2, 1989, the District Superintendent observed that the Missanabie Cree “have not had any members residing on reserve, thus [are] unable to form a Band Council”.[^123] Accordingly, pursuant to a further order, the Missanabie Cree Band was no longer to be covered under s. 74 of the Indian Act for election purposes.[^124]. As a result, the Missanabie Cree were not listed among the First Nations and enumerated in a December 27, 1989 Order-in-Council that detailed the method by which Chiefs and Councils were elected.[^125] By February 1991, it was noted that the band had “appointed” a spokesperson and continued to do so by means of band custom elections.[^126] None of the correspondence relating to the inability of the Missanabie Cree to elect a Chief and Council specifically stated that this was because they did not have a reserve. Instead, the correspondence indicated that such elections could not take place as no members of the band resided on reserve. One might wonder how the contrary was even possible since there was no reserve. It should be remembered that this was in the period when Indian Reserve No. 62 continued to be shown as being held by the Missanabie Cree. It was only on December 10, 1998 that a Registrar’s Order confirmed this reserve had been established for the Michipicoten Band (Ojibway) (see para. [74], above). In this context, 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.

[84] Over time, individuals spoke for that group in a fashion which recognized that they had some understanding that they had rights under Treaty No. 9 that extended beyond collecting the gratuities. On June 22, 1914, a man called John Dochemay wrote from Missanabie inquiring about open season on beaver and otter on behalf of himself and the “Missanabie Band”. He made reference to “our hunting grounds”.[^127] It should be noted that there was some doubt about whether John Dochemay was writing on behalf of the Missanabie Cree. He was not listed on the Missanabie pay-lists but, instead, appears in 1906 on the New Brunswick House band list along with an indication that he had been paid the Treaty No. 9 gratuity at Missanabie.[^128] Evidence that does relate directly to the Missanabie Cree comes from a 1929 petition signed by 15 people, including James Fletcher, asking for open season on beaver and otter.[^129] On January 24, 1930, a letter written on behalf of “[w]e Indians at Missanabie” requested confirmation that they had permission “to hunt and kill moose or deer or other game which is to be used for needed food”. The letter added that “[i]n spite of our original treatment which gave us this privilege as our right, we are advised by local game wardens that we will be prosecuted if we take advantage of this clause in our treaty”.[^130] A further letter demonstrates that there were First Nation members who had a sense of their rights under treaty:

Will you kindly help me with information on certain rights which I believe come under treaty rights for Indians.

How can the treaty signed by the Indians long ago, be set aside by a few agents & provincial members.

Indians are now fighting for a country which they have no claim to by treaty [this was written during and refers to World War II], but here they have also lost all treaty rights.

I understand they gave up their country, in return they received the right to hunt & fish as long as time existed, in other words as long as the grass grows & the sun shines etc.

In this particular part, the Indians are losing all their rights, Indians have to have a license to trap even on certain limited areas. They are allowed to kill no moose, they get no doctoring, if they are working to support themselves, even to maternity cases.

The only thing they can get by treaty it seems now is their $4 a year and the right to set nets to fish...[^131]

[85] This leaves open the question of whether any request made by the Missanabie Cree for a reserve was made in recognition of their adherence to the treaty or separate and apart from the treaty. In their various reports, journals and diaries, the Treaty Commissioners made no mention of a request by the Cree for a reserve at Missanabie, no reserve was set aside, and the reserve at Moose Factory, from where the Missanabie Cree were understood to have migrated, was not enlarged to accommodate the 62 people paid as “Moose Factory Crees at Missanabie” (see para. [53], above). The historical records are silent on the question of whether a reserve was even discussed when the parties met at Missanabie in July 1906. The first documented request for land by a member of the Missanabie Cree dates to March 20, 1915 when Hudson’s Bay Company manager, P. H. Godsell, relayed the petition of James Fletcher, the spokesman for the band of Moose Factory Cree at Missanabie (see para. [79], above). According to P. H. Godsell:

These Indians numbering eight (men) wish to know if the Department could not see their way to give them a grant of a small portion of Government land north of the C.P.R. property at Missanabie, that said land to be used by them for the purpose of raising vegetables etc. such as potatoes etc. for their own consumption. In the view of rather hard times caused by the war, they wished to provide in the future by raising vegetables, which they are at present unable to do as they have no land of their own.[^132]

[86] The request was received and understood by the Assistant Deputy and Secretary of the Department of Indian Affairs, J. D. McLean, who briefed the Deputy Minister on April 14, 1915:

…[a] very earnest request has been preferred to this Department by the Agent of the Hudson’s Bay Company, Mr. H. P. Godsell [sic] at Missanabie, Ont., on behalf of a number of Cree Indians (eight men and their families) who are living in shacks near the station, for a small reserve north of the Canadian Pacific Railway track, where they may be able to cultivate gardens.[^133]

[87] On April 1, 1915, P. H. Godsell received an inquiry from the Department of Indian Affairs asking what objections, if any, the petitioners might have to using the extant reserve which was situated south of the tracks. This refers to the reserve established in 1904 for the Michipicoten Ojibway and which later became known as Missanabie Indian Reserve No. 62. This is the reserve which was mistakenly identified in records as having been set aside for the Missanabie Cree; a mistake that was finally corrected on December 10, 1998 (see paras. [74], and [83], above). P. H. Godsell felt this would not be a good idea; in part, because “…the Cree Indians who expressed a desire for a reserve, all live on the north side of the C.P.R. line”. Further, “the Ojibways and the Crees do not get along well with one another, and if these Crees were placed upon the reserve which the Ojibway’s look upon as their own, it would undoubtedly give rise to considerable friction and ill feeling”. P. H. Godsell emphasized that the Missanabie Cree had a different tract in mind: “The Cree Indians again wish me to express to you their earnest desire that the Department will purchase for them a small reserve from Government land on the north side of the C.P.R. track and abutting [sic] as per attached sketch”.[^134] The sketch was passed on to the Deputy Minister. It was estimated that about 300 acres would be sufficient.[^135] The three historians note that it is clear from the size of the desired reserves, as well as from estimates of the acreage, that this small tract – which was to be purchased from Government lands and granted to the First Nation members – was not, in any way, intended to meet the maximum reserve entitlement provided for under Treaty No. 9 (not to exceed one square mile for each family of five or that proportion). There is no evidence that this request was presented as an unfulfilled treaty obligation. Nor is there any evidence that the Department of Indian Affairs understood that there was an unfilled treaty obligation that could be met or partially met by granting the request.[^136]

[88] Indian Agent William McLeod did “not think it would be necessary to give them a reserve”.[^137] The three historians indicate that no other subsequent correspondence has been located with respect to this issue, suggesting that the matter was dropped after receiving the advice of the Indian Agent.

[89] On April 16, 1929, James Fletcher wrote to Duncan Campbell Scott (then Deputy Minister of Indian Affairs) from Missanabie, this time specifically requesting a “reservation” (see para. [80], above). Fletcher explained:

I would therefore [?] beg to inform you that our tribe the Cree Indian [sic] have no reservation here. That why we have land property [tax] otherwise we would be on the reservation and avoid this tax paying. Our Tribe the Cree Indians are coming out to railroads as there is starvation at Moose Factory at Hudson Bay.[…] I beg to call your attention [word inserted: regarding?] to reservation. I wish you would take the matter up to the Government, would release a land here at Missanabie for the tribe of Cree Indians.[^138]

[90] The Department replied on May 1, 1929 declining the request on the grounds that it was “not considered advisable to establish an Indian reserve for the Cree band at this point at present”.[^139]

[91] On June 2, 1936, James Fletcher again wrote to the Department of Indian Affairs detailing his concerns about “the condition of the Indians here at Missanabie”. The letter concluded by complaining about the lack of a reserve at Missanabie:

While the Indians under the protection of the Hudson Bay Company [sic], these were never known (i.e. not being able to trap). At times things did not go right, but we always managed to get along. There wasn’t any Game & Fishery law to interfere with our living. When it came time for trapping and hunting, we did, and worked in summers.

When taken over by the Government, we did not think our way of living would be stopped. We Indians are asking our means of making a living to be changed, so we can have more privileges to make a living in the way of trapping. This Game Preserve is to [sic] near here.

The Indian not living on a Reserve, but living around the White People, have not the privileges of an Indian on their own Reserve. We have no land to plant or trap. A piece of good farming country is what we need.[^140]

[92] The letter from James Fletcher was forwarded to Indian Agent T. J. Godfrey, who presented two solutions:

…some provision should be made to try and help them either by granting them a new reserve where they could plant seed or do a little farming or gardening to help out with what trapping they could do in the season and work they could secure in the summer. Then there is another course [that] might be taken which if successful would be a great boon to these people, and that is to ask the Ontario Game and Fisheries Department to set aside a small portion of the Chapleau Game Reserve for the sole use of these Indians and bar white men from trapping on that portion set aside.[^141]

[93] These proposals were forwarded by the Department of Indian Affairs to the Deputy Minister, Department of Games and Fisheries who was asked to consider “that part of the representations which refers to the desirability of a hunting preserve”.[^142] In a letter, dated June 26, 1936, Ontario rejected the proposal to permit the “Indians at Missanabie” to hunt or trap within the confines of the Chapleau Game Preserve, but suggested the parties might agree to “designate an area in that district but not in the Game Preserve for the use of Indians”.[^143] The three historians advise that no response has been found to the original request outlined by James Fletcher for a reserve. In their Joint Expert Report, they say that, to this date, no reserve has been set aside for the Missanabie Cree.[^144] While this is accurate, it should be noted that, in 2010, Ontario and the Missanabie Cree First Nation reached an agreement to select and convey 15 square miles of land to a designate of the First Nation. The lands were surveyed and two patents were issued and registered on August 26, 2014 and September 23, 2014. Pursuant to the agreement, the Missanabie Cree First Nation is obliged to ask Canada to set the lands apart as a reserve. Ontario concurs with this but it has not as yet happened.[^145] Ontario takes the position that, once Canada accepts these lands as a reserve in accordance with its Addition to Reserves Policy, the Missanabie Cree will have the reserve they were entitled to receive in 1906.

THE ISSUE

[94] The Statement of Claim on which the plaintiffs rely is the Amended Fresh as Amended Statement of Claim. It is dated April 21, 2011. It is a broad claim seeking a declaration that Canada and Ontario are obligated, based upon the population of the Missanabie Cree First Nation on the date the declaration is made, to set apart, as Indian reserve lands, one square mile per family of five in conformity with the James Bay Treaty (Treaty No. 9).[^146]

[95] The claim asks for more than just the recognition of the right to a reserve and the determination of the date on which the population is to be assessed for the purpose of fixing the size of the reserve. In particular, it requests damages for a variety of alleged wrongs including:

(a) $50 million for breach of the treaty;

(b) $50 million for breach of fiduciary duty;

(c) $50 million or special damages; and,

(d) $10 million for punitive damages.

[96] Among the specific wrongs, beyond the failure to dedicate a reserve, is the allegation of an agreement between Canada and Ontario, entered into in 1924, which granted to the latter a one-half interest in all mineral rights on Indian reserves within the province of Ontario. It is said that this agreement was made without consultation or compensation paid to the First Nations for their interests in those lands. The Amended Fresh as Amended Statement of Claim suggests that the agreement was given legal force and effect pursuant to An Act for the Settlement of Certain Questions between the Governments of Canada and Ontario Respecting Indian Reserve Lands.[^147] As part of this action, the plaintiffs seek an order that this legislation has no application to any reserve set aside for the Missanabie Cree, at least to the extent of any mineral rights it may purport to transfer to Ontario.

[97] In 1925, Ontario established the Chapleau Crown Game Preserve. The game preserve is alleged, by the plaintiffs, to cover approximately 2 million acres of land encompassing virtually all of “the traditional territory of the Missanabie Cree."[^148] It is said that Ontario passed regulations prohibiting all hunting and trapping within the game preserve which is in violation of Treaty No. 9 which guaranteed First Nations the right to hunt and trap.

[98] These wrongs and the individual, social and political mistreatments, hardships, harms and damage they have caused are the foundation for the claims now being made.

[99] This action has been the subject of two procedural orders, both made on consent, which serve to limit the issue to be placed before the court through this trial. I presume this has been done in an effort to organize and bring order to the means by which the broad issues raised by this proceeding can be dealt with and in the hope that, with some preliminary direction, a negotiated resolution may be possible. On April 12, 2011, Master Sproat made an order. It accepted that a reserve should have been set aside for the benefit of the Missanabie Cree shortly after the making of the treaty and set down as the “Threshold Issue”:

What is the size of the reserve the Missanabie Cree are entitled to have set aside for their benefit under Treaty 9?

In particular:

(a) 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?

(b) What was or is the population of the Missanabie Cree on the Crystallization Date?[^149]

[100] More than three years later, on November 4, 2014, Madam Justice Himel made an order further refining the initial issue to be dealt with. She ordered that the question of the population to be applied in sizing the reserve is to be tried after the Crystallization Date has been determined.[^150] The only issue left to be determined at this trial is the date on which the right of the Missanabie Cree to a reserve has crystallized or will crystallize: Is it to be the date of the making of Treaty at Missanabie Station in 1906, the date of the declaration the court is now being asked to make or some other date in between?

THE NATURE AND CONTEXT OF THE QUESTION BEING ASKED

[101] In examining this situation, it is important to come to an understanding of the impact of the decision the court is being asked to make. The purpose behind this proceeding is to correct an error made one hundred and ten years ago. The substance of the remedy being sought, as demonstrated by the Amended Fresh as Amended Statement of Claim is a reserve, money for the years for which the use of the land was denied and compensation for the harms said to have been caused as a result of that denial: But how much land and how much money?

[102] If the position of Canada and Ontario is sustained and the size of the reserve is to be based on the population of the Missanabie Cree as it was in 1906, there will be an assessment, based on the law that applies, of the sum of money needed in addition to the land to assuage the wrong. On the other hand, if the size of the reserve is, as requested by the Missanabie Cree, to be calculated based on the population from the date of the judgment the court is being asked to make, it stands to reason that the additional land added to the reserve will stand as part of the compensation for the delay if not the harms attributed to it. If there had been no delay, there would be no additional land. This being so, it follows that the sum of money to be awarded to accompany the grant of land would be reduced. I do not say that this is a “zero sum” calculation, by which I mean that the total value of the land when added to the value of the money will inevitably be the same (the only question being how to divide the value of the remedy between the two). I do say it is important to acknowledge that there is a relationship between the amount of land and the sum of money.

[103] I say this because, given this relationship, I am uncertain as to what, if any, progress to an overall resolution will be provided by the decision the court is being asked to make. The presumption appears to be that, once the crystallization date is determined and the applicable population set, the amount of land to be granted will be established. From that foundation, the parties will move on and settle the value of the money or come to the court and ask for its assistance. If it is the former, it is not clear to me why, and if it is the latter, it is not clear to me if the resolution of what remains would necessarily be limited to money and could not include more land. During the course of the trial, I asked one of the counsel for the plaintiffs if his client was unsuccessful and the applicable population was found to be as of the making of the treaty, would it still be possible that a subsequent award of the court could include more land. At first, he denied this was possible. Without, in any sense, meaning to be critical, it seemed to me that, later, he became somewhat equivocal. In the circumstances, I would not want to see the parties hobble themselves or the court be unnecessarily limited in what it could do in searching for the proper answer to this far too old and complicated problem. I have heard no submissions, but I believe the question of whether the court could or could not award more land is uncertain.

[104] The desire to fulfill the promise of treaties with First Nations is demonstrated by our constitution:

Section 25 of the Charter of Rights:

25. The guarantee in this Charter of certain rights and freedoms shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including…

Part II: Rights of the Aboriginal Peoples of Canada

35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed…..

[105] This constitutional directive relies on a broad approach and general concepts:

The nature of s. 35(1) [of the Constitution Act, 1982, referred to above] itself suggests that it be construed in a purposive way. When the purposes of the affirmation of aboriginal rights are considered, it is clear that a generous, liberal interpretation of the words in the constitutional provision is demanded.[^151]

[106] A treaty is not a commercial contract. It is to be taken as an agreement between nations and interpreted based on this understanding:

At the outset, it may be helpful to once again set out some of the applicable principles of interpretation. First, it must be remembered that a treaty represents an exchange of solemn promises between the Crown and the various Indian nations. It is an agreement whose nature is sacred.[^152] Second, the honour of the Crown is always at stake in its dealing with Indian people. Interpretations of treaties and statutory provisions which have an impact upon treaty or aboriginal rights must be approached in a manner which maintains the integrity of the Crown. It is always assumed that the Crown intends to fulfil its promises. No appearance of ‘sharp dealing’ will be sanctioned.[^153] Third, any ambiguities or doubtful expressions in the wording of the treaty or document must be resolved in favour of the Indians. A corollary to this principle is that any limitations which restrict the rights of Indians under treaties must be narrowly construed.[^154] Fourth, the onus of proving that a treaty or aboriginal right has been extinguished lies upon the Crown. There must be ‘strict proof of the fact of extinguishment’ and evidence of a clear and plain intention on the part of the government to extinguish treaty rights.[^155] [^156]

[107] 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[^157]:

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.[^158]

[108] The circumstances 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.

[109] Overarching the concern for our relations with First Nations is the search for reconciliation which reaches beyond the terms of any specific treaty:

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'.[^159]

[110] In the face of these broad ideas pointing to a generous and purposive interpretation, “technical or contractual interpretations of treaty wording should be avoided".[^160] Yet, in this case, the court is not being asked to examine the Treaty as a whole, to consider what was being exchanged or how the failure to provide for a reserve has derogated from its purpose. The question is limited to how the “reserve clause” deals with the sizing of the lands to be granted to First Nation bands. If, by this determination (and the subsequent finding of the population as required by the Order of Master Sproat), the area to be covered by the reserve is finalized, the parties will limit their ability to negotiate and the court’s ability to impose a remedy. Any settlement between the parties or award of the court will not include a balancing of the amount of land in relation to the sum of money and their collective impact on satisfying the purpose of the treaty (to assist the Missanabie Cree to maintain their style of life and, at the same time, adapt to the presence of change and development). Such a resolution would not necessarily respond to our joint desire for reconciliation. If this is incorrect and it will be open to the court to order that more land be set aside, then, after this decision is made, the same question that is being asked now will remain: How much land and how much money? The progress made towards resolution of these issues will be limited. All that could be said is that a base for the amount of land will have been set.

[111] Any limitation to the use of a reserve associated with the granting of a one-half interest in all mineral rights on reserves to Ontario and any limitation to hunting and trapping rights arising from the setting aside of the Chapleau Crown game reserve stand as independent issues about which little, if anything, was said in this trial or the accompanying submissions.

[112] It is submitted on behalf of the First Nation that the concern is misplaced. The case is not merely about remedy. There is an issue of substance. It is said that the issue of the band’s entitlement to a reserve under Treaty No. 9 “raises important issues with respect to the constitutional treaty obligations of the Crown."[^161] The right of the Missanabie Cree to a reserve and that one should now be set aside has been conceded.[^162] 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. To my mind, these issues concern remedy. As put by counsel for Canada:

It does not matter why these persons were not counted or whether they constituted an independent band in 1906. The purpose of this phase of the trial is not to judge the correctness of the actions of the Treaty Commissioners in 1906. Rather given the admissions of the Crown, this phase seeks to correct the historical wrong of no reserve having been provided to the Cree as Missanabie.[^163]

[113] The submissions of counsel for the First Nation go on to what may be the real concern. Ontario has pleaded a number of defences associated with the passage of time. Given the time during which the claims asserted in this proceeding arose (before the coming into force of the Proceedings Against the Crown Act in September, 1963[^164]), they could only be brought by way of petition of right. On April 14, 2005, a Royal Fiat was issued providing that this proceeding was to be treated as if it had been commenced by petition of right, although without prejudice to the defendants relying on Crown immunity and other defences. In its Statement of Defence and Cross-claim,[^165] Ontario proposed that claims for breach of fiduciary duty are not claims for which a petition of right lies. It is asserted that the Crown was historically immune from such claims. In any case, Ontario alleges that the plaintiffs had or could have had, by the exercise of reasonable diligence since 1906 or at times thereafter (1915, 1925 and 1929), the knowledge sufficient to bring this proceeding. It is said that the delay in doing so gives rise to an inference of acquiescence which makes the prosecution of the action unreasonable. In the result, the public interest requires that the action be barred (with the exception of declaratory relief respect entitlement to a reserve pursuant to the formula provided in Treaty No. 9). On this understanding, Ontario relies on the equitable doctrines of laches and acquiescence. Finally, for Ontario, there is reliance upon the various versions of the Limitations Act and the limitation periods applicable to various of the causes of action (separate from the right under the treaty to a reserve) that the plaintiffs assert (6 years “upon the case” for negligence or other torts; 20 years upon a specialty such as a claim based on the alleged breach of a contract under seal; and 6 years for an alleged breach of contractual promise not under seal), as well as the 6-months’ limitation that appears in the Public Authorities Protection Act[^166], its predecessors and other statutes that are referenced.[^167]

[114] For its part, Canada raises similar concerns. In response to the claims for breaches of fiduciary duty, declaratory relief, damages, and land, as a result of the delay, it relies on the equitable doctrines of laches, acquiescence, delay and waiver. Canada goes on to refer to and rely on various limitation statutes.[^168]

[115] 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). As I understand it, no one is saying that any limitation period would impact the right of the Missinabie Cree to a reserve under Treaty No. 9 or to the size of such a reserve as prescribed by the reserve clause. The question of whether the size of the reserve is dictated solely by the timing of the crystallization of the right to a reserve or whether the size of the reserve may be increased in response to other harms may or may not remain open. It depends. If a limitation defence applies to harms and damages occasioned by the delay, as opposed to the rights provided by the treaty, there will be no question as to whether additional land is part of any separate remedy for the delay. If there is no such defence, the question will remain open. My concern remains the same. We do not seem likely to make much progress towards a final resolution as a result of whatever decision is forthcoming from this trial.

[116] Despite the concern, I move on to the question at hand.

[117] Before doing so, I pause to point out that Ontario takes the position that the granting of any land in addition to that prescribed by the treaty would be disproportionate and unfair to the First Nations that, in 1905 and 1906, were granted reserves under Treaty No. 9. This may or may not be a concern if it remains possible to grant more land as part of the overall remedy beyond what the treaty calls for, but it seems worthwhile to point out that an argument could be made that it has been unfair for the Missanabie Cree to have been without any reserve for more than a century. For the moment, it is not possible to know how such an issue would be resolved. This is not a question that is being asked now.

ANALYSIS

[118] While treaties are not the same as commercial contracts, they are analogous to them. They represent “an exchange of solemn promises between the Crown and various Indian nations”. Treaties are characterized by “…the intention to create obligations, the presence of mutually binding obligations and a certain measure of solemnity".[^169] The special, unique and public nature of treaties is reflected in special rules that have developed to guide their interpretation.[^170] The overall goal is to choose “‘from among the various possible interpretations of the common intention the one which best reconciles’ the parties’ interests".[^171] In looking for the common intention, it is important to recognize the general, even inherent, difficulties in ascertaining what the parties intended. The First Nations did not, as a rule, have the ability to and did not create any written record of the negotiations. This leads to the understanding that the Crown must always be taken to have acted with honour.

The Indian 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 (Sioui, supra, [herein, fn. 152], at p. 1049), the completeness of any written record (the use, e.g., of context and implied terms to make honourable sense of the treaty arrangement...[^172]

[119] “In searching for the common intention of the parties, the integrity and honour of the Crown is presumed."[^173] The social and cultural differences between the parties to the treaties must not be set aside or ignored. “These treaties were the product of negotiation between very different cultures and the language used in them probably does not reflect, and should not be expected to reflect, with total accuracy each party’s understanding of their effect at the time they were entered into."[^174] Among the responses to this aspect of the problem is the requirement that “[t]reaties should be liberally construed and ambiguities or doubtful expressions should be resolved in favour of the aboriginal signatories."[^175] On the other hand, the interpretation should not reach out beyond the common intention of the parties as it was when the treaty was made. “Even a generous interpretation of [a treaty]…must be realistic and reflect the intention of both parties, not just that of the [First Nation]".[^176] Generosity in the interpretation of treaties should not lead to granting First Nations more than the common intention reveals they were promised at the time the treaty was made. “Generous rules of interpretation should not be confused with a vague sense of after-the-fact largesse."[^177] The balance is struck by recognizing that “[w]hile construing the language generously, courts cannot alter the terms of the treaty by exceeding what ‘is possible on the language’ or realistic."[^178] It is not the role of treaty interpretation to distort the meaning of the treaty in an attempt to redress an historical wrong.[^179]

[120] The Supreme Court of Canada has provided some guidance as to how to approach the interpretation of a treaty. The inquiry encompasses two steps:

(a) 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.[^180]

(b) 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.[^181]

[121] As I perceive it, the two sides (the First Nations representatives and the two governments) approach these questions differently. For its part, the First Nation (the Missanabie Cree) concentrated its analysis in the overarching or general provisions. Its analysis of the “reserve clause” (see para. [21], above) stresses the application of the honour of the Crown and the direction that any ambiguity is to be resolved in favour of the First Nation. The First Nation relied on the reserve clause as outlining a four-step progression in identifying and setting aside reserves, as follows:

1. The reserves are to be set aside according to a formula (‘one square mile for each family of five or in that proportion’).

2. The agreement of the Commissioners and the First Nation as to the location which is as described in the schedule of reserves.

3. The reserves to be surveyed and defined later.

4. When confirmed, the reserves to be held and administered by the government of Canada for the benefit of the First Nation.

[122] Counsel for the Missanabie Cree does not find in the words of the treaty any recognition of when the right to a reserve has crystallized. No specific date or event is identified. In the absence of such a date or event, counsel proposes that the passing of some, part or all of this progression would demonstrate that the right to a reserve was established. Counsel identified the possibilities. There was no agreement as between the Commissioners and the First Nation as to the location of a reserve (step 2). No reserve has been surveyed, defined and set aside for the use of the Missanabie Cree (step 3). Perhaps one or the other of these events, neither of which has occurred, would mark the date the right to a reserve accrued.[^182] There was also the suggestion that the right to a reserve only crystalized upon the completion of a confluence of events possibly representing all four steps in the progression. This, too, has not taken place. The uncertainty this interpretation presents leaves the search for the common intention relying on the honour of the Crown (the understanding that the Crown is obligated not only to fulfill its obligations to the First Nation, but to endeavour to ensure they are fulfilled[^183]). When this obligation is joined to the principle that ambiguity is to be resolved in the answer that most benefits the First Nation, it follows (none of the events that would mark the crystallization of the right to a reserve having occurred) that the population on which the size of the reserve is to be founded is not from the past but as of a date in the future, when one or all of these events will have taken place.

[123] There is a problem with this approach. It proceeds directly from the fact that the treaty makes no specific provision as to when the right will have crystallized to a reliance on the steps necessary to establish, not the right to a reserve, but the title, location and size of the reserve; that is, the establishment of the reserve itself. By the commencement of this proceeding, it is clear none of these steps has taken place. If there was a specific provision defining when the right was established or if the steps in the progression had been acted on, there would be no basis and no reason for this action. In the first case, a specific provision would be in place; in the second, a reserve would have been established. If this reflects the law, intention can only be established by a specific provision dedicated to that purpose. There is no examination of the words of the treaty, in this case, the reserve clause, to see if they demonstrate an intention common to the parties. The words are not important to show what has happened (or not happened), but to reveal what the parties expected to happen.

[124] In this case, the “at face value” meaning (the “facial” meaning), of the specific words of the reserve clause show a common intention. The inference to be drawn from the language of Treaty No. 9 is that (1) reserves are to be set aside; (2) they are not to exceed one square mile for each family of five or in that proportion; and, (3) the location is to be arranged by (or between) “His Majesty’s commissioners and the chiefs and headmen as described in the schedule of reserves attached hereto”[^184] (attached to the treaty). It is the last of these three statements from which a “facial” meaning demonstrating a common intention can clearly be extracted. The agreement as to the location of the reserve is to be “arranged” by the commissioners and the chiefs. This cannot be taken to refer to anyone other than the three commissioners appointed to make treaty. They are to be “His Majesty’s commissioners”, not some other commissioners or a subsequent monarch. There is no suggestion that the chiefs or headmen are to be different than those the commissioners were to meet with. The intention was that reserves were to be agreed to when the treaty was made. This was the only time the commissioners and the chiefs and headmen were to meet. This is confirmed by the requirement that the reserves were to be as described in the “schedule of reserves” attached to the treaty. What was to happen later, but not much later, was that the boundaries of the reserves would be defined by survey. This was to take place “hereafter”. In the context of making treaty and setting aside reserves, this word cannot be taken to imply anything other than “shortly after” or within a reasonable period of time. The plain reading of these words is that the reserves were to be “arranged” at the time of the treaty.

[125] That this intention is expressed in the words is made clear, on behalf of the Crown, by the discussion and debate between Canada and Ontario as to how the location of each reserve would be determined. Initially, it was the position of Canada, as expressed through Frank Pedley, that they should be selected by the First Nations. Ontario wanted a say. It was agreed between them that one of the commissioners would be appointed by Ontario and that the commissioners and the First Nations would agree as to the location. Frank Pedley (and Canada) were content because the First Nations would have a say and accepted that the result would likely be a better one if it was arrived at through agreement (see paras. [18] to [19], above).

[126] It is not as if there were no other options that had been used in other earlier treaties and could have been adopted and included in Treaty No. 9. One of the three historians (Dr. Alexander von Gernet) examined some of the precedents available at the time. Among other things, he looked at the words used to identify the timing of reserve selection and outlined options that had been used in other treaties[^185]:

(i) agree on the reserve locations during councils held at the time of the treaty negotiations and specify these either in the text of the treaty itself or in an accompanying schedule (as with the two Robinson treaties and the treaties numbered 1, 2, 5[^186] and 7);

(ii) provide an undertaking in the treaty text that the reserves would be selected through consultations at a later date, with the intention or understanding that this would take place as soon as possible after treaty (as with the treaties numbered 3[^187] and 6);

(iii) provide an undertaking in the treaty text that the reserves would be selected through consultations at a later date, with the intention or understanding that this would take place ‘when required’ in the more distant future (as with treaties numbered 4 and 8[^188]).

[127] The words of Treaty No. 9 indicate that its drafters elected to agree on the reserve locations during councils held at the time of treaty and to specify these in an accompanying schedule. They could have chosen another option but did not.

[128] I find confirmation that it was the intention of Canada and Ontario that reserves be set aside at the making of treaty in the conclusion reached by the three historians:

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.[^189]

[129] In the absence of any written record prepared by the First Nations, their intention is harder to discern. It is clear that they wanted a treaty. They had seen the results of the Robinson-Superior treaty to the south of the height of land and wished to be treated in a like manner. Letters had been written on their behalf expressing their concern for the future of their way of life and asking that a treaty be offered. The first request was made as early as 1885. This was the report prepared by the Stipendiary Magistrate (see para. [11], above). There had been at least one meeting with First Nations at New Brunswick House involving Duncan Campbell Scott, who was later appointed as one of the three commissioners. Some of the First Nations representatives had travelled long distances to attend. Indian agents had been requested to research the First Nations population. They confirmed the desire for a treaty (see para. [14], above). There had been a petition for a treaty presented at Osnaburgh. Land reserved for use by First Nations was part of what was sought (see para. [12], above). With these facts in mind, 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. There is no suggestion that they were prepared to wait with the possibility that, with larger populations, they would be granted larger reserves. Looking forward from 1906 (as opposed to backward from 2016), it is possible that it would not have appeared that the population of the Missanabie Cree would increase. Dr. Alexander von Gernet wrote that he was “…not of the opinion that, during this period, the Cree would necessarily have any advantage to having the reserve areas calculated according to their populations at a later date. During the late nineteenth and early twentieth centuries, it was commonly believed that Aboriginal populations were on a trajectory of decline”.[^190] An examination of the pay-lists for the annuities shows that, while the population increased from 62 in 1906 to 67 in 1908, by 1910, it had reduced to 57. While it increased to more than 62 in the subsequent two years (in 1911 to 65 and in 1912 to 64), by 1913, it had returned to 62. From 1914 to 1930, it never returned to 62; it slipped to as low as 42 in 1925.[^191]

[130] The mistake that has been made was not recognizing that the Missanabie Cree were a band and had a right to a reserve. The error has been continued by the failure, until 2010, to set aside land for that purpose (see para. [93], above). This failure does not change the mistake. It compounds the impact of it.

[131] There is no evidence of any First Nations being treated, or asking to be treated, in a fashion that was inconsistent with an understanding that they shared in the intention that their reserves were to be identified, and their size to be representative of the population as of the date the treaty was made. For 1905, all the bands at all the locations where the Commissioners and representatives of a First Nation met, treaty was made and, as part of the agreement to fall under the terms of the treaty, a reserve was set aside. This was the case at Osnaburgh, Martens Falls, New Post and Fort Albany. At English River, the First Nation members were initially associated with the band at Fort Albany (“they [were] also Crees:” see quotation at para. [36], above). Nonetheless, a reserve was set aside at the time of treaty being made. By 1906, the First Nation members at English River were recognized as a band in their own right (see para. [38], above). At Fort Hope, a reserve was set aside when the treaty was agreed to. The population was unclear and the reserve size was not determined until William Galbraith was appointed to conduct the survey and given license to establish its size. It is not known the basis upon which he selected 100 families as the foundation for sizing the reserve at 100 square miles, but there is nothing to suggest it was intended to represent anything other than the population in 1905 when the treaty was entered into (see para. [67], above). There is no suggestion that the appropriate population was as of 1909 when William Galbraith was appointed or at any time thereafter when the survey he started was completed by another surveyor. At Moose Factory, a reserve was set aside and sized according to the population as it was understood to be at the time that treaty was made.

[132] The fact that an error was made and First Nation members that the Commission associated with the band at Moose Factory (although, at the time, living at other places such as Missanabie) were not included for the purpose of sizing the reserve does not change the understanding that the area of the reserve was based on the population as calculated when the treaty was made.

[133] The same is true for the work done by the Commission during the summer of 1906. Again, there is nothing to suggest anything other than, where reserves were set aside, it was as of the time that treaty was made. It was at that time that reserves were set aside: at Abitibi, Matachewan, Mattagami, Flying Post, New Brunswick House and Long Lake. At Biscotasing, Chapleau, Heron Bay and Missanabie, there was no recognition of any separate or independent band. These First Nation members were identified with bands at other locations. At these locations, there was no formal adhesion. Formal adhesion is to be distinguished from the results of “meet and pay” (see para. [30], above). Under meet and pay, First Nation members agreed to come under the terms of the treaty, were added to a pay-list and received the gratuity and the right to the annuity. No separate reserve was set aside. The exception was Chapleau where two small reserves were set aside to allow the First Nations (Ojibways and Crees) “to build their small houses and cultivate garden plots”.[^192] These reserves were granted separate from and outside the provisions of the reserve clause. The two reserves were each to be 160 acres in size (one as surveyed was 267 acres (see para, [62], above), which is to say, substantially less than the one square mile[^193] to be awarded per family of five under the reserve clause. Even so, they were set aside at the time that the two groups of First Nation members agreed to come under the terms of Treaty No. 9.

[134] This takes me to the case of Lac La Ronge Indian Band v. Canada.[^194] That case appears, at first, to be remarkably similar to this one. It is not. It deals with Treaty No. 6; another of the succession of numbered treaties that Canada entered into with various First Nations. It was understood from the outset that a predecessor of the plaintiff band (the predecessor being the James Roberts Band) had entered into an adhesion agreement in 1889[^195] and, as a result, qualified for the grant of a reserve. The reserve clause was different. It did not provide for an arrangement between “Her Majesty’s Commissioners and the Chiefs and headmen”.[^196] Instead, the Reserve Clause that is found in Treaty No. 6 stipulates that:

…the Chief Superintendent of Indian Affairs shall depute and send a suitable person to determine and set apart the reserves for each band, after consulting with the Indians thereof as to the locality which may be found to be most suitable for them.[^197]

[135] The decision as to the location of the lands to be set aside for a reserve was left to the “suitable person” who was “depute[d]” for the purpose. The person so deputed was the surveyor. The Reserve Clause there, as did the reserve clause here, directed that:

…all such reserves shall not exceed in all one square mile for each family of five, or in that proportion for larger or smaller families...[^198]

[136] The problem was the same. The treaty did not specify the time at which the persons were to be counted and the population determined. The First Nation submitted that the population to be used was as of the time the land was last surveyed. Canada and the province of Saskatchewan took the position that it was when the land was first surveyed and set apart. The first was referred to as the “current population formula” and the second as the “first survey formula”.[^199] Most often, the result would be the same. The surveyor would identify the location, establish the population and survey the land to accord with the formula. The first survey would be the last survey. There would be only one. This was not always the case. There were circumstances where the first survey did not account for the full entitlement required by the formula. A second or more surveys would be required. This was the case with the Lac La Ronge Band. Between surveys, the population changed. In such a situation, the amount of land to be set aside would increase if the population as at the later or last survey was the one that applied.

[137] The trial judge looked for the common intention. He examined the evolution of Canadian treaties and the manner in which the setting aside and sizing of reserves had changed. He noted that, in the early treaties, particularly the two “Robinson treaties” (the Robinson-Superior and the Robinson-Huron Treaties), both entered into in 1850, specifically identified the land that was to be set aside as reserves.[^200] In those two treaties, “…both the size and location of some twenty reservations were detailed."[^201] He concluded from this that Canada was well able to specify the location where this was thought to be needed or appropriate. If that was the intention, “…it would have been a simple matter to so state in the document itself. It had been done on previous occasions."[^202] As the trial judge perceived it, at the time of treaty, the First Nations were going through a difficult time. They were uncertain as to the future. They did not know when they would settle on a reserve. They were “…probably hoping that it would be sooner rather than later. Their immediate concern was that the land would be available when needed."[^203]

[138] For its part, at least as the trial judge saw it, “…the Crown was aware of the western migration, but felt no compulsion or urgency to settle the Indians on Reservations”. The Crown anticipated the First Nations would assimilate. It did not understand that the First Nations population would increase in any significant way. As a result, the Crown felt no need to fix a date for determining the entitlement to a reserve:[^204]

…the parties saw the creation of Reserves as a future event, with no time constraints. It would happen when it happened and the parties would deal with it at that time. What was important was that the obligation to provide land was established within the treaty and the means to define that obligation was likewise established. What was left open was the actual quantum of land required to fulfill the obligation. That would remain unknown until the treaty obligation was fulfilled.[^205]

[139] The trial judge concluded that it was the intention of the parties that the size of the reserves was to be calculated utilizing the population as of the date “…when the treaty obligation was fulfilled."[^206] This approach to the question of the common intention of the parties cannot be sustained or applied to the case at hand. First of all, there is a difference between the two reserve clauses in that the reserve clause in Treaty No. 9 calls for reserves to be set aside by “His Majesty’s Commissioners and the Chiefs and Headmen”. There was no uncertainty about the number of times they met or intended to meet. The Commissioners were not coming back nor did the Chiefs and Headmen expect that they would. There is no evidence to suggest that the First Nations were merely looking for the right to a reserve to be taken up some time in the future. The first request for a treaty reported by the three historians was in 1885 (see para. [11], above). The petition made in 1901 indicated that the First Nation on whose behalf the request was made had selected the land it wished to retain and expressed the concern that it was already being developed by white men (see para. [12], above). One of the Indian agents who reported to Canada (Nichols) indicated in his report that the First Nations sought to enter into a treaty with the Crown and have reserves set apart (see para. [14], above). What seems patently clear from the work of the three historians is that the way of life of the First Nations was already changing and they knew it. This is demonstrated by the fact that some had left their traditional homes and gathered around the railway and that the concern that was most frequently raised with the Commissioners was the circumstance in which they would, once the treaty was in place, be able to hunt and fish (see para. [36], above).

[140] As it is, these distinctions do not matter because the decision of the trial judge in Lac La Ronge Indian Band v. Canada was set aside by the Court of Appeal of Saskatchewan. Why? Because, as that court saw it, there was no reason to distinguish between cases where the land entitlement was allotted in its entirety when the first survey was completed or those where a second survey was necessary to complete the identification of all of the land to be included as part of the reserve:

…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 time of first survey or census as adjusted...[^207]

[141] In other words, the “facial” meaning (the face value meaning) of the reserve clause in Treaty No. 6 was not uncertain or ambiguous. To the contrary, the Saskatchewan Court of Appeal found that the judge erred in finding there was ambiguity as to the time when the treaty land entitlement was to be calculated. The provision was not ambiguous; it was silent on the point. Moreover, the trial judge had failed to make the requisite findings of fact leaving it to the Court of Appeal to re-examine the question. The Court of Appeal concluded:

There is no reference in any of the treaty documents or in the treaties themselves that the Crown intended, as a general practice, to leave the matter of the allocation of reserve lands open-ended. There is no reference or statement to support an interpretation that the land entitlement would increase as the population of the Band increased. Indeed, that was contrary to what Canada wanted – finality in connection with the treaty obligations, so that settlement of the West could proceed.[^208]

[142] The same can be said for of the words of the reserve clause in Treaty No. 9.

[143] I find that the words of Treaty No. 9 (in particular, the Reserve Clause) are clear, on their face, that the Crown and the First Nations shared, as a common intention, that any reserves were to be set aside at the time the treaty was made and the population upon which the calculation of the size of the reserve was to be founded was as of that date.

[144] In their reply, counsel for the First Nation submitted that “a proper interpretation of Treaty 9 suggests that the ‘triggering mechanism for determining the size of the treaty land entitlement’ is the date when the Crown takes some positive steps to fulfill the undertaking to set apart a reserve for the exclusive use and benefit of the band."[^209] The difficulty with this approach is that it relies on something that did not happen (that no reserve was set aside and no population accounted for) as demonstrating what the counsel for the First Nation says the intention was (the reserve was to be sized based on the population at the time the reserve was set aside). It fails to distinguish what actually took place from what was expected, intended or should have happened (that when the Missanabie Cree agreed to be bound by the Treaty, they be recognized as a band and granted a reserve). The Missanabie Cree do not dispute that they have been a party to Treaty No. 9 since 1906. This was agreed to as a fact at the time of the appearance before Master Sproat on April 12, 2011.[^210] The foundation of the admission lies in the understanding that the acceptance of the treaty annuities by the First Nation members constitutes adherence to the treaty. The converse is also true. By paying the annuities, Canada was recognizing the adherents as parties to the treaty. This idea has been accepted by a predecessor of this court:

Throughout the period of 1883 to the date of trial, Canada has consistently taken the position that the Temagami Indians did not sign the treaty and that their Indian title has not been extinguished, while Ontario consistently has taken the position that the Temagami Indians were party to the treaty and that their title has been extinguished. Ontario's actions over the years confirm its position. At trial, Canada, though represented only with respect to the constitutional issue, has through its counsel now taken the position that the Indians have adhered to the treaty and are bound by it. Canada's previous position is somewhat suspect because, if the Indians were not party to the treaty, why were they admitted to the Robinson-Huron pay-list in 1883, and why has Canada consistently argued for a reserve for the Indians? I note that, with one minor exception, Canada has always agreed that the Land Claim Area falls within the territorial limits of the Robinson-Huron Treaty, and I find that it does.[^211]

[145] This takes me to the second of the steps. Does the historical and cultural backdrop suggest any latent ambiguity or alternative interpretation (see para. [120], above)? This part of the analysis continues the search for an understanding of the parties’ common intention:

McLachlin J., dissenting on other grounds, stated in R. v. Marshall, 1999 665 (SCC), [1999] 3 S.C.R. 456 (“Marshall No. 1”), at para. 78, that ‘[t]he 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’. This means that the promises in the treaty must be placed in their historical, political, and cultural contexts to clarify the common intentions of the parties and the interests they intended to reconcile at the time.[^212]

[146] 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 (see para. [9], above), 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:[^213]

[At Long Lake,] Peter Taylor, speaking for the Indians, said they were perfectly satisfied with the terms of the treaty, and much pleased that they were to receive an annuity like their brethren of the Robinson Treaty, and also that they were to be granted land which they could feel was their own.[^214]

[147] The principal concern expressed by the First Nations representatives was to seek the assurance that they would be able to hunt and fish as they had in the past. The assurance was given. The reserves were to be home, a place where the European had no rights or inherent role. They were to be a place where a band could live according to its own history, culture and experience. As reported in the trial decision in Lac La Ronge Indian Band v. Canada, the method and means of selecting reserves had changed: where, for the two Robinson Treaties this was done as the treaty was prepared, by the time of Treaty No. 6, the selection was done by the “suitable person” deputed by Chief Superintendent of Indian Affairs who would size the reserve according to the formula of one square mile per family of five, and on to Treaty No. 9, where the formula remained but the selection was by arrangement between the “…Commissioners and the Chiefs and Headmen”. By the time of Treaty No. 9, there was a consistent treaty-making process:

The number treaty process is, in essence, a matter of balancing new exigencies you have in history, new circumstances which kind of renders each treaty as a sui generis document, balancing that against the need for consistency and the consideration of precedent.

And that latter balance has the effect of making these treaties resemble one and another. So they are not all the same, they are not all, they are not verbatim. But they do have certain resembles, and those resembles [sic] as a result of trying to have a consistent treaty making process across the dominion under principles of fairness at the same time each area of the Dominion had different geographical and other factors which led to variability in the wording.[^215]

[148] In Lac La Ronge Indian Band v. Canada, the Court of Appeal of Saskatchewan noted the repeated use of the formula for sizing reserves from Treaty No. 3 on and that none of the numbered treaties provided for land entitlements that depended on current population. The general intent of Canada was to provide bands with reserves large enough to meet the needs of their members living at the time the treaty was signed:[^216]

It is also evident that the Indians in the later treaties such as Treaty Nos. 3 and 4 were aware of the terms that had been agreed to in the previous treaties and were able to obtain additional concessions. It is striking however, that the formula for selecting the reserve lands and the formula for calculating the amount of the reserve land remained constant from Treaty No. 3 onward. None of these treaties mention that a calculation of treaty land entitlement should be based on a current population formula.[^217]

[149] When Treaty No. 9 is considered in this historical context, it becomes apparent that 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.

[150] There is one aspect of the context of Treaty No. 9 that bears some additional consideration. It is the recollection of Robert Laurence that the First Nation representatives “…didn’t understand half of what was going on anyway” (see para. [55], above). As reported by Robert Laurence, this was demonstrated by the situation at Mattagami, where the Chief accepted a reserve, not where the band wanted it, but where the local manager of the Hudson’s Bay Company suggested. Having accepted, five months later, the Chief asked for a change (see para. [56], above). There were other changes sought by other bands which, for the most part, were not accepted. Is this apparent failure to understand that adjustments would not be made demonstrative of a cultural divide that undermines the treaty as a whole and the understanding that reserves were to be set aside at the time the treaty was made and sized according to the population as it was at that time? Is this concern added to by the observation that, on at least one occasion, a Hudson’s Bay Company trader, when interpreting a concern expressed by the Chief at the making of the treaty at Long Lake presented it as a compliment and so misled the First Nations members present (see para. [58], above)?

[151] I do not see how. To my mind, to extend these incidents to that result would undercut what the parties clearly wanted. The Crown sought “arrangements” to be made by the Commissioners with the chiefs and headmen. The First Nations wanted to sustain the way of life they knew in the face of development that was underway. They wanted the protection at the time of treaty, not some undetermined moment in the future. The isolated comments of Robert Laurence need to be set against the reports of the Commissioners which assert the care and explanations provided and express confidence that the First Nations understood the treaty:

Throughout all the negotiations we carefully guarded against making any promises over and above those written in the treaty which might afterwards cause embarrassment to the governments concerned. No outside promises were made, and the Indians cannot, and we confidently believe do not, expect any other concessions than those set forth in the documents to which they gave their adherence.[^218]

[152] Are these perspectives self-serving? With hindsight stretching back over more than a century, it is easy to say so. There is little, if anything, to suggest that these reports are insincere or wrong.

[153] There is evidence of the efforts of the Commissioners to correct any misunderstandings that appeared through the discussions of the terms of the treaty:

(a) The commissioners invited representatives “that any point on which they required further explanations should be freely discussed, and any questions asked which they desired to have answered”.[^219]

(b) Where concerns were expressed about losing hunting and fishing privileges and being confined to the reserve, these misconceptions were corrected.[^220]

(c) At Fort Hope, after a First Nation spokesperson erroneously stated that the Indians were to be given cattle, tools, etc., the commissioners noted:

…as the undersigned wished to guard carefully against any misconception or against making any promises that were not written in the treaty itself, it was explained that none of these issues were to be made, as the band could not hope to depend upon agriculture as a means of subsistence; that hunting and fishing, in which occupations they were not to be interfered with, should for very many years, prove lucrative sources of revenue.

Indians were informed that by signing the treaty they pledged themselves not to interfere with white men who might come into the country surveying, prospecting, hunting or in other particular, and that their reserves were set apart for them in order that they might have a tract in which they could not be molested, and where no white man would have any claims without the consent of their tribe and of the government.[^221]

(d) Also at Fort Hope:

Monias – said. I should like to consult with my aunts and cousins. If I buy as small an article as a needle I have to pay for same, you come here offering money we have not asked for. I do not understand and should like to have it explained, after an explanation, he along with others signified his assent and the treaty was signed.[^222]

[154] The comments of Robert Laurence are narrow in their scope. I do not think it out of line to note that, over the course of history, there are few treaties or agreements entered into between nations that are not subject to criticism, from somebody, suggesting the results were unfair and the true substance misunderstood. Modern-day politics is replete with such allegations. This is not changed by a manager, presumably knowingly, misinterpreting a concern such that it sounded like a compliment (see: para. 58 above).

[155] Finally, as a mark of the intention of the First Nations, I point out that there was considerable indication that the First Nations representatives were prepared and ready to indicate their choices as to the location of reserves at the time of the making of the treaty:

(a) at Osnaburg, the location of the reserve was “fully gone into” and the “Indians showed great acuteness in describing the location of the land they desire to have reserved for them”.[^223]

(b) at Fort Hope, the leaders asked for 100 miles of water frontage...[^224]

(c) at Marten’s Falls the leaders first requested “both banks for 50 miles downriver”...[^225]

(d) at Moose Factory, “the question of a reserve was gone into and settled to the satisfaction of ourselves and the Indians”[^226]

(e) at Abitibi, they asked for a reserve “to be set apart for them would include as great an extent lake frontage as possible.”[^227]

(f) at Matachewan, the “location of the reserve desired by the Indians received careful consideration...[^228]

(g) at Flying Post, it was noted “The Indians also signified their desire regarding the position of the reserve to be allotted to them...[^229]

(h) at Long Lake, the question “was carefully gone into and the Commissioners have no hesitation in recommending the confirmation of the site shows.”[^230]

[156] I find that it was the common intention of both sides that the reserves were to be set aside and sized according to the First Nations populations at the time the treaty was made.

[157] I return to the nature of any assistance this conclusion offers to the effort to resolve the differences between the Missanabie Cree and the governments of Ontario and Canada. I refer to the conclusion that it was the intention of the parties that the location and size of the reserves be determined as of the time that the treaty was made. I refer to the differences occasioned by the one hundred and ten year delay in dedicating a reserve to the First Nation.

[158] Without submissions, I am unable to make any substantive comment as to the strength, viability or validity of any argument that some aspects of the claims being made are limited by the application of any limitation periods that may be said to apply. I repeat, however, that the actions of the Crown are to be governed by the honour of the Crown:

The honour of the Crown ‘is not a mere incantation, but rather a core precept that finds its application in concrete practices’...[^231]

[159] The honour of the Crown governs treaty-making and implementation.[^232] The honour of the Crown requires the Crown to act in a way that accomplishes the intended purposes of treaty and statutory grants to First Nations people.[^233]

[160] The ultimate purpose of the honour of the Crown is reconciliation, that is, the reconciliation of pre-existing First Nation societies with the assertion of Crown sovereignty: [^234]

The duty of honour derives from the Crown’s assertion of sovereignty in the face of prior Aboriginal occupation. It has been enshrined in s. 35(1) of the Constitution Act, 1982, which recognizes and affirms existing Aboriginal rights and titles. Section 35(1) has, as one of its purposes, negotiation of just settlement of Aboriginal claims. In all its dealings with Aboriginal peoples, the Crown must act honourably, in accordance with its historical and future relationship with the Aboriginal peoples in question.[^235]

[161] Reconciliation has a broad ambition. In its Summary of the Final Report of the Truth and Reconciliation Commission of Canada, the Commission defined reconciliation, in part, as:

…[A]n ongoing process of establishing and maintaining respectful relationships. A critical part of this process involves repairing damaged trust by making apologies, providing individual and collective reparations, and following through with concrete actions that demonstrate real societal change.

[162] If this is the goal, why would we limit the available remedies to an award of money where additional land, other concessions or grants may assist in accomplishing the desired result?

[163] In the event that the parties, following whatever discussions they may have are unsuccessful in settling what remains and return to court for a determination of an appropriate remedy, I ask that they consider what has been said here.

COSTS

[164] It is not clear to me when costs are to be dealt with: whether they are to be considered now or following resolution of the remedy. When it is considered appropriate, I may be spoken to.

LEDERER J.

Released: 20161208

CITATION: Fletcher v. Ontario, 2016 ONSC 5874

COURT FILE NO.: 95-CU-93574

DATE: 20161208

ONTARIO

SUPERIOR COURT OF JUSTICE

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

– and –

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO and THE ATTORNEY GENERAL OF CANADA

Defendants

JUDGMENT

LEDERER J.

Released: 20161208

[^1]: I point out that, early in their evidence, the three historians noted that, throughout the various documents, there are different spellings of Missanabie (for example: “Missinaibi”). For every quotation, I have used the spelling that appears in the original document. For myself, I have used the most common spelling “Missanabie”. [^2]: Transcript, Trial Proceedings, Volume 8 (Evidence of Jean-Philippe Chartrand), at p. 1039. [^3]: Letter from the Office of the Inspector of Indian Agencies and Reserves to the Superintendent General of Indian Affairs, dated June 3, 1901, Ex. 17, and Trial Proceedings, Volume 8 (Evidence of Jean-Philippe Chartrand), at pp. 1040-1044. [^4]: Transcript, Trial Proceedings, Volume 6 (Evidence of Joan Holmes), at p. 839. [^5]: Letter from Acting Indian Agent to Secretary of the Department of Indian Affairs, dated July 24, 1902, Ex. 1, Tab 013, referred to in the Joint Expert Report, January 2015, at para. 5(c) (AGC(1)-000157 (Nichols). [^6]: Letter from J.F. Hodder(Indian Agent, Port Arthur, Department of Indian Affairs), dated December 6, 1902, Ex. 1, Tab 015, referred to and quoted in the Joint Expert Report, January 2015, at para. 5(d)( AGC (1)-000158) [^7]: Supra, (fn. 5). [^8]: Supra, (fn. 6). [^9]: Proposed Treaty with Indians of District North of Robinson Superior and Huron Treaties (1850), Ex. 1, Tab 016, referred to in the Joint Expert Report, January 2015, at para. 5(e) (AGC (1)-000165). The Joint Expert Report notes that no source for the last comment (the Indians were in Missanabie “temporarily”) was provided or is known. [^10]: As it was explained to the court, “Adhesion” refers to the idea that these new lands would, by agreement, be absorbed into an existing treaty. [^11]: Memorandum, dated August 17, 1903, Ex. 1, Tab 017, referred to in the Joint Expert Report, January 2015, at para. 5(g) (AGC (1)-000170). [^12]: Agreement, dated April 16, 1894, Ex. 1, Tab 012, referred to in the Joint Expert Report, January 2015, at para. 6(a) (AGC(1)-000066). [^13]: Letter from Frank Pedley (Deputy Superintendent General, Department of Indian Affairs) to E.J. Davis (Commissioner Department of Crown Lands), dated April 30, 1904, Ex. 1, Tab 018, and Settlement of Indian Claims-Treaty No. 9, dated April 30, 1904, Ex 1, Tab 019, both referred to in the Joint Expert Report, January 2015 at para. 6(b) AGC(1)-000174 and ONT(1)-000026). [^14]: Memorandum upon correspondence between the Deputy Minister of Interior, Mr. Pedley and Assistant Commissioner of Crown Lands, Aubrey White, prepared July 18, 1904, Ex. 1, Tab 024 (handwritten) and Tab 025, (transcription) referred to and quoted in the Joint Expert Report, January 2015, at para. 6(d) (PL(Holmes-Hist), Doc-038 (handwritten) and ONT(1)-000032 (transcription). [^15]: Letter from A. J. Matheson (Provincial Treasurer) to Frank Pedley (Superintendent General, Department of Indian Affairs), dated June 1, 1905, Ex. 1, Tab 041, referred to in the Joint Expert Report, January 2015, at para. 6(f) (PL(1)-000052). [^16]: Joint Expert Report: Section 12 (Summary of Agreed Statements of Fact and Opinion), at p. 62. [^17]: Memorandum from Frank Pedley (Deputy Superintendent General, Department of Indian Affairs and Northern Development) to Wilfrid Laurier, dated June 2, 1905, Ex. 1, Tab 042 referred to and quoted in the Joint Expert Report, January 2015, at para. 6(g) (ONT(1)-000044). [^18]: Settlement of Indian Claims-Treaty No. 9, Ex. 1, Tab 019, quoted in the Joint Expert Report, January 2015, at para. 10.1(a) (ONT(1)-000026). [^19]: Joint Expert Report: Section 12 (Summary of Agreed Statements of Fact and Opinion), at pp. 62-63. [^20]: Copy of an Order in Council approved by His Honour the Administrator of the Government of the Province of Ontario, July 3, 1905, Ex. 1, Tabs 055 and 056, referred to in the Joint Expert Report, January 2015, at para. 6(o), (ONT(1)-000052 and ONT(1)-000054). [^21]: Joint Expert Report, January 2015, at para. 7(a). [^22]: Journal (Diary) of Commissioner Duncan Campbell Scott, Ex. 1, Tab 049, referred to in the Joint Expert Report, January 2015, at para. 7(j) (AGC(1)-000266:1-2). [^23]: Ibid. [^24]: James Bay Treaty-Treaty No. 9 Ex. 1, Tab 059, and Ex. 1, Tab 086, both referred to in the Joint Expert Report, January 2015, at para.7(k) (AGC(1)000289:8 and AGC(1)-000311). [^25]: Letter from Frank Pedley to White, dated February26, 1906, Ex. 1, Tab 080, referred to in the Joint Expert Report, January, 2015, at para. 7(o) (ONT(1)-000066:1-2). [^26]: The expression “to make treaty” is credited to the Commissioner, Duncan Campbell Scott, who is said to have frequently described the process in this way (see: Joint Expert Report: Section 12 (Summary of Agreed Statements of Fact and Opinion), at p. 63). [^27]: In the end, there were four locations where “meet and pay” was employed by the Commissioners, being: Biscotasing, Chapleau, Heron Bay and Missanabie (Joint Expert Report: Section 12 (Summary of Agreed Statements of Fact and Opinion), at p. 64). [^28]: Reports of Superintendents and Agents: Report of the three Commissioners November 6, 1905, at pp. 288-289, Ex. 1, Tab 59 (AGC(1)-000289). [^29]: Ibid, at p. 289. [^30]: Diary of Commissioner MacMartin, diary entry July 29, 1905, Exhibit 1, Tab 051, quoted in the Joint Expert Report, January 2015, at para. 8.4(b) (ONT(1)-000051). [^31]: Schedule of Reserves: Treaty Number 9, Exhibit 1, Tab 006, referred to in the Joint Expert Report, January 2015, at para. 8.4(a) (ONT(1)-000062). [^32]: Joint Expert Report, January 2015, at para. 8.4 (f). [^33]: Diary of Commissioner Stewart, Ex, 1, Tab 030, Image, pp. 41-48, referred to in the Joint Expert Report, January 2015, at para. 8.5(d) (AGC (1)-000212). [^34]: James’ Bay Treaty-Treaty No. 9: Ottawa, October 5, 1906, Ex. 1, Tab 86, referred to in the Joint Expert Report, January 2015, at para. 9.5 (AGC (1)-000311). [^35]: Ibid, at para. 9.6(a) (Joint Expert Report). [^36]: James’ Bay Treaty-Treaty No. 9: made in 1905 and 1906 and Adhesions made in 1929 and 1930, Ex. 1, Tab 60, referred to in the Joint Expert Report, January 2015, at para. 9.6 (a) (ONT(1)-000063). [^37]: James’ Bay Treaty-Treaty No. 9: Ottawa, October 5, 1906, Ex. 1, Tab 086, referred to in the Joint Expert Report, January 2015, at para. 9.8 (b) (AGC (1)-000311). [^38]: Telegram, Ex 1, Tab 085, referred to in the Joint Expert Report, January 2015, at para. 9.8(a) (AGC(1)-000309. [^39]: Journal (Diary) of Samuel Stewart, Ex. 1, Tab 078, (image, p. 54), quoted in the Joint Expert Report, January 2015, at para. 9.8(d) (AGC(1)-000303). [^40]: Joint Expert Report, January 2015, at para. 9.8(a). [^41]: Journal (Diary) of Samuel Stewart, Ex. 1 Tab 078, (image, p. 54), quoted in the Joint Expert Report, January 2015, at para. 9.8(d) and repeated at para. 9.12(b) (AGC(1)-000303). [^42]: Ibid, (at image, p. 49). [^43]: Pay List of Moose Factory Cree at Missanabie for First Payment 1906 (Field Version), Ex. 1, Tab 066, referred to in the Joint Expert Report, January 2015, at para. 9. 12(c) and Pay List of Treaty 9 for 1906 Moose Factory Crees Band Paid at Missanabie (Headquarters Version), Ex. 1, Tab 079, referred to in the Joint Expert Report, January 2015, at para. 9.12(d) (ONT(1)-000065 and AGC(1)-000302). [^44]: Pay List of New Brunswick House Band for First Payment Ex. 1, Tab 062, referred to in the Joint Expert Report, January 2015, at para. 9.12(e) (Pl(HOLMES)-T9)-DOC-027). [^45]: Journal (Diary) of Samuel Stewart, Ex. 1, Tab 078, (image, p. 54), and Journal (Diary) of Duncan Campbell Scott, Ex. 1, Tab 083, (image, p. 25), both quoted in the Joint Expert Report, January 2015, at para. 9.12(b) (AGC(1)-000303 and AGC(1)-000306). [^46]: Joint Expert Report, January 2015, at para. 9.12(e). [^47]: Joint Expert Report, January 2015, at para. 10.1(b). [^48]: Pay List of Moose Factory for First Payment 1905, Ex. 1, Tab 032, and Sessional Papers, Ex. 1, Tab 019, both referred to in the Joint Expert Report, January 2015, at para. 9.12(g), respectively, (AGC(1)-000206 and ONT(1)-000026). [^49]: Joint Expert Report: Section 12 (Summary of Agreed Statements of Fact and Opinion), at p. 65. [^50]: Pay List of Moose Factory for First Payment 1905, Ex. 1, Tab 032, and Sessional Papers, Ex. 1, Tab 019, both referred to in the Joint Expert Report, January 2015, at para. 9.8(d), respectively, (AGC(1)-000206 and ONT(1)-000026), at para. 9.8(d). [^51]: Treaty Research Report: Treaty Nine (1905-1906): the James Bay Treaty, Ex. 1, Tab 336, quoted in the Joint Expert Report, January 2015, at para. 9.3(d) (PL(HOLMES)-REPLY)DOC-426). [^52]: Letter from J.D. McLean (Secretary Department of Indian Affairs) to Chief Andrew Luke of Mattagami, dated January 22, 1907, Ex. 1, Tab 091, referred to in the Joint Expert Report, January 2015, at para. 10.4(a) (PL(HOLMES-T9)-DOC-035). [^53]: James Morrison: Treaty Research Report: Treaty No. 9 (1906-1906): The James Bay Treaty, Ex. 1, Tab 336, referred to in the Joint Expert Report, January 2015, at para. 10.4(a). [^54]: Letter from J.D. McLean (Secretary, Department of Indian Affairs) to Aubrey White (Assistant Commissioner, Department of Crown Lands, Ontario), dated October 7, 2012, Ex. 1, Tab 151, referred to in the Joint Expert Report, January 2015, at para. 10.4(c)(i) (PL(HOLMES-T9)-DOC-078). [^55]: Letter from Aubrey White (Assistant Commissioner Department of Crown Lands, Ontario) to J. D. McLean (Secretary Department of Indian Affairs), dated October 10, 1912, Ex 1, Tab 152, referred to in the Joint Expert Report, January 2015, at para. 10.4(c)(i), and Letter from Samuel Bray (Chief Surveyor, Department of Indian Affairs) to Deputy Superintendent General of Indian Affairs, dated November 12, 1913, Ex 1, Tab 165, referred to in the Joint Expert Report, January 2015, at para. 10.4(c)(i) (PL(HOLMES-T9)-DOC-079, and PL(HOLMES-T9)-DOC-086). [^56]: Letter from Samuel Bray (Chief Surveyor, Department of Indian Affairs) to Deputy Superintendent General of Indian Affairs, dated November 12, 1913, Ex 1, Tab 165, referred to in the Joint Expert Report, January 2015, at para. 10.4(c)(ii) (PL(HOLMES-T9)-DOC-086). [^57]: Joint Expert Report, January 2015, at para. 10.4(c)(ii). [^58]: Letter from J.D. McLean (Secretary, Department of Indian Affairs) to J. S. Dobie (O.L.S. and D.L.S. Thessalon Ontario), dated April 11, 1911, Ex. 1, Tab 138, referred to in the Joint Expert Report, January 2015, at para. 10.4(c)(iii) ((PL(HOLMES-T9)-DOC-070). [^59]: Order-in-Council (P.C. 364), dated March 9, 1909, Ex. 1, Tab 109, referred to in the Joint Expert Report, January 2015, at para. 10.4(c)(iv) (PL(HOLMES-T9)-DOC-055). [^60]: Survey of Indian Reserve at Fort Hope in the North West Territories (Field Notes, William Galbraith), Ex. 1, Tab 123, referred to in the Joint Expert Report, January 2015, at para. 10.4(c) (v) (AGC(2)-000654:60). [^61]: Joint Expert Report, January 2015, at para. 10.4(d). [^62]: Journal (Diary) of Duncan Campbell Scott, Ex. 1, Tab 083, (image pp. 27-28), referred to in the Joint Expert Report, January 2015, at para. 9.9(b) (AGC(1)-000306). [^63]: Schedule of Reserves: Treaty No. 9, Ex. 1, Tab 006, referred to in the Joint Expert Report, January 2015, at para. 10.1(d) (ONT(1)-000062:71-72). [^64]: James Bay Treaty-Treaty No. 9, Ex. 1, Tab. 060, and Tab 086, both referred to in the Joint Expert Report, January 2015, at para. 10.1(d) (AGC(1)-000311 and ONT(1)-000063:19). [^65]: Schedule of Reserves: Treaty No. 9, Ex. 1, Tab 006, referred to in the Joint Expert Report, January 2015, at para. 10.1(e) (ONT(1)-000062:71-72). [^66]: Joint Expert Report: Section 12 (Summary of Agreed Statements of Fact and Opinion), at p. 65. [^67]: Joint Expert Report, January 2015, at para. 10.1(f). [^68]: Copy of an Order-in-Council approved by His Honour the Lieutenant Governor in Council, February 13, 1907, Ex. 1, Tab 093, referred to in the Joint Expert Report, January 2015, at para. 10.2(a) (AGC(1)-000320). [^69]: Letter from Frank Pedley (Deputy Superintendent General, Department of Indian Affairs) to E. J. Davis (Commissioner of Department of Crown Lands), dated April 30, 1904, Ex. 1, Tab 018, referred to in the Joint Expert Report, January 2015, at para. 10.2 (a) (AGC(1)-000174). [^70]: Joint Expert Report, January 2015, at para. 10.2(a). [^71]: Order-in-Council (Provincial), dated April 17, 1914, Ex. 1, Tab 173, referred to in the Joint Expert Report, January 2015, at para. 10.2 (b) (i) (PL(HOLMES-T9)DOC-093). [^72]: Joint Expert Report, January 2015, at para. 10.2 (c). [^73]: James Bay Treaty-Treaty No. 9, Ex. 1, Tab 059, referred to in the Joint Expert Report, January 2015, at para. 10.3(b) (ACG(1)-000289:4). [^74]: Letter from J.F. Hodder (Indian Agent-Port Arthur) to Secretary of Department of Indian Affairs, dated December 6, 1902, Ex.1, Tab 015, referred to in the Joint Expert Report, January 2015, at para. 10.3(b) (AGC(1)-000158:1). [^75]: Journal (Diary) Commissioner Samuel Stewart, Ex 1, Tab 030, referred to in the Joint Expert Report, January 2015, at para. 10.3(c) (AGC(1)-000212:29). [^76]: Pay-List of Fort Hope Band, First Payment 1905, Ex. 1, Tab 029, referred to in the Joint Expert Report, January 2015, at para. 10.3(c) (AGC(2)-000635). [^77]: Joint Expert Report, January 2015, at para. 10.3(c). [^78]: Letter from Frank Pedley to Mr. White, dated February 26, 1906, Ex. 1, Tab 080, referred to in the Joint Expert Report, January 2015, at para. 10.3(d) (ONT(1)-000066). [^79]: Joint Expert Report, January 2015, at para. 10.3(f). [^80]: Pay-List of Fort Hope Band for Year 1906, Ex. 1, Tab 077, referred to in the Joint Expert Report, January 2015, at para. 10.3(g) (AGC(2)-000638). [^81]: Pay-List of Fort Hope Band for Year 1907, Ex. 1, Tab 088, referred to in the Joint Expert Report, January 2015, at para. 10.3(h) (AGC(2)-000643). [^82]: Ibid. [^83]: Pay-List of Interest [sic] for 1909 Fort Hope Band, Ex. 1, Tab 107, referred to in the Joint Expert Report, January 2015, at para 10.3(j) (AGC(2)-000647). [^84]: Three Letters (J.D. MacLean (Secretary, Department of Indian Affairs) to W. Galbraith (Land Surveyor of Canada), dated May 26, 1909, June 14, 1909, and June 28, 1909, Ex. 1, Tabs 113, 117, and 118, referred to in the Joint Expert Report, January 2015, at para. 10.3(m) (AGC(2)-000648, AGC(2)-000650 and AGC(2)-00051). [^85]: Joint Expert Report, January 2015, at paras. 10.3(m)-(q). [^86]: Copy of an Order-in-Council, approved by the Honourable the Lieutenant Governor in Council, dated June 18, 1931, Ex. 1, Tab 232, referred to in the Joint Expert Report, January 2015, at para 10.3(q) (ONT(1)-000313:3). [^87]: Joint Expert Report, January 2015, at paras. 10.5(a) and (b). [^88]: Ibid, at para. 10.5(c). [^89]: Ibid, at para. 11.1(a). [^90]: Ibid, at para. 11.1 (b). [^91]: Ibid, at para. 11.1(c). [^92]: Ibid, at para. 11.1(d). [^93]: Joint Expert Report: Section 12 (Summary of Agreed Statements of Fact and Opinion), at p. 68. [^94]: Annual Report of H. A. West-Chapleau Agency, Department of Indian Affairs, dated April 24, 1913, Ex. 1, Tab 164, quoted in the Joint Expert Report, January 2015, at para. 11.2(a) (AGC(1)-000352:2). [^95]: Joint Expert Report, January 2015, at para. 11.2(b). [^96]: Petition (Michipicoten Band), dated September 8, 1904, Ex. 1, Tab 026, Letter from William L Nichols (Indian Agent-Indian Office Sault Ste. Marie) to Secretary Of Department of Indian Affairs, dated September 15, 1904, Ex. 1, Tab 027, Letter from J. D. McLean (Secretary) to Aubrey White (Assistant Commissioner, Department of Crown Lands, Ontario), dated May 9, 1905, Ex. 1, Tab 040, and Annual Report of the Department of Indian Affairs for the Year Ended June 30, 1905, dated June 30, 1905, Ex1, Tab 048, each referred to in the Joint Expert Report, January 2015, at paras. 4(c) and 11.3(a) (PL(1)-000038, AGC(1)-000199, PL(1)-000047 and PL(1)-000059). [^97]: Order-in-Council October 18, 1905, Ex. 1, Tab 058, referred to in the Joint Expert Report, January 2015, at para. 11.3(a) (PL(1)-000064). [^98]: Schedule of Indian Reserves, dated March 31, 1913, Ex. 1, Tab 158, and Schedule of Indian Reserves, dated March 31, 1928, Ex. 1, Tab 218, both referred to in the Joint Expert Report, January 2015, at para. 11.3(c) (PL(1)-000094 and PL(1)-000133). [^99]: Memorandum:Chapleau Indian Reserve No. 61 and Missanabie Indian Reserve No, 62, dated October 20, 1965, Ex. 1, Tab 367, and Letter from J. L. Whitney (Superintendant, Chapleau Indian Agency) to Indian Affairs Branch, dated May 19, 1950, Ex. 1, Tab 293, both referred to in the Joint Expert Report, January 2015, at para. 11.3(b) (AGC(1)-000564 and PL(1)-000163). [^100]: Registrar's Order, dated December 10, 1998, Ex. 1, Tab 347, referred to in the Joint Expert Report, January 2015, at para. 11.3(b) (AGC(1)-000625). [^101]: Joint Expert Report, January 2015, at para. 11.4(a). [^102]: Letter from J. F. Hodder (Indian Agent-Port Arthur, Department of Indian Affairs) to Secretary of Department of Indian Affairs, dated December 6, 1902, Ex. 1, Tab 015, referred to in the Joint Expert Report, January 2015, at paras. 5(d) and 11.4(b) (AGC(1)-000158). [^103]: Joint Expert Report, January 2015, at Paragraph. 11.4(b). [^104]: Proposed Treaty with the Indians of District North of Robinson Superior and Huron Treaties (1850), dated February 11, 1903, Ex. 1, Tab 016, referred to in the Joint Expert Report, January 2015, at paras. 5(e) and 11.4(b) (AGC(1)-000165). [^105]: Letter from Frank Pedley to Mr. White, dated February 26, 1906, Ex. 1, Tab 080, referred to in the Joint Expert Report, January 2015, at paras. 7(o) and 11.4(b) (ONT(1)-000066). [^106]: Telegram, Ex 1, Tab 085, referred to in the Joint Expert Report, January 2015, at paras. 9.8(a) and 11.4(b) (AGC(1)-000309. [^107]: James Bay Treaty-Treaty No. 9, Ex. 1, Tab 086, referred to in the Joint Expert Report, January 2015, at paras. 9.12(a) and 11.4(b) (AGC(1)-000311). [^108]: Paylist of the Moose Factory Crees at Missanabie for First Payment 1906, Ex. 1, Tab 066, and Paylist, dated January 1, 1906, Ex. 1, Tab 075, referred to in the Joint Expert Report, January 2015, at paras. 9.12(c) and 11.4(b) (ONT(1)-000065 and PL(1)-000067). [^109]: Letter from C.C. Chipman (Commissioner Hudson's Bay Company) to Frank Pedley (Deputy Superintendent General of the Department of Indian Affairs), dated May 11, 1904, Ex. 1, Tab 021, referred to in the Joint Expert Report, January 2013, at paras. 7(b) and 11.4(c) (AGC(1)-000179). [^110]: Joint Expert Report, January 2015, at para. 11.4 (c). [^111]: Journal (Diary) of Commissioner Samuel Stewart, Ex. 1, Tab 078, referred to in the Joint Expert Report, January 2015, at paras. 9.8(d) and 11.4(d), (the Crees on the west side of the Canadian Pacific Railway track, the Ojibway on the east side) and Letter from Assistant Deputy and Secretary to P.H. Godsell (Manager of Hudson's Bay Company-Missanabie), dated April 1, 2015, Ex. 1, Tab 182, in company with, and in response to a Letter from P.H. Godsell (Manager, Hudson's Bay Company-Missanabie) to Secretary of Department of Indian Affairs, dated April 8, 1915, Ex. 1, Tab 183, both referred to in the Joint Expert Report, January 2015, at para. 11.7(d) and para. 11.4(d), (the Crees on the north side of the tracks and the Ojibway to the south) (AGC(1)-000303, AGC(1)--00377 and AGC(1)-000378). [^112]: Letter from P. H. Godsell (Manager, Hudson's Bay Company-Missanabie) to Department of Indian Affairs, dated March 20, 1915, Ex. 1, Tab 179, referred to in the Joint Expert Report, January 2015, at para. 11.4(e)(AGC(1)-000374:1. [^113]: Joint Expert Report, January 2015, at para.11.4(e). [^114]: Ibid, at para. 11.4(f). [^115]: Letter from Albert Fletcher to Indian Affairs Branch, dated July 23, 1928, Ex. 1, Tab 219, referred to in the Joint Expert Report, January 2015, at para. 11.4(g) (AGC(1)-000428:1-2). [^116]: Joint Expert Report, January 2015, at para. 11.4(g). [^117]: Letter from James Fletcher to D. C. Scott (Deputy Superintendent General, Department of Indian Affairs), dated April 16, 1929, Ex. 1, Tab 224, referred to in the Joint Expert Report, January 2015, at para. 11.4(h) (PL(1)-000138). [^118]: Joint Expert Report, January 2015, at para. 11.4(h). [^119]: Joint Expert Report: Section 12 (Summary of Agreed Statements of Fact and Opinion), at p. 69. [^120]: Letter from F. Matters (Indian Agent-Indian Affairs Branch, Department of Mines and Resources) to Secretary of Department of Indian Affairs, dated August 26, 1941, Ex. 1, Tab 264 and Tab 263, referred to in the Joint Expert Report, January 2015, at para. 11.4(i) (AGC(1)-000510 and PL(1)-000152). [^121]: (R.S.C., 1985, c. I-5). [^122]: Order in Council, P. C. 6016, dated November 12, 1951, Ex. 1, Tab 296, referred to in the Joint Expert Report, January 2015, at para. 11.5(a) (AGC(1)-000540). [^123]: Letter from H. Fanjoy (Superintended-Lands Revenue and Trusts, Sudbury District, Indian and Northern Affairs Canada) to Gregor MacIntosh (Director General of Membership Revenue in the Band Governance), dated August 2, 1989, Ex. 1, Tab 338, referred to in the Joint Expert Report, January 2015, at para. 11.5(a) (AGC(1)-000614). [^124]: Letter from Gaetan Pilon (Acting Director Band Governance) to District Manager of Sudbury District, dated August 21, 1989, Ex. 1, Tab 339, referred to in the Joint Expert Report, January 2015, at para 11.5(a) (AGC(1)-000615). [^125]: Letter from Gregor MacIntosh (Director General, Registration Revenues and Band Governance) to G. P. Kerr (Regional Director General of Indian and Inuit Affairs, Ontario Region), dated February 8, 1990, Ex. 1, Tab 340, and letter from G. Restoule (Lands Revenue and Trust Officer-Lands Revenue and Trusts Sudbury District, Indian and Northern Affairs Canada), dated February 19, 1991, Ex. 1, Tab 341, both referred to in the Joint Expert Report, January 2015, at para. 11.5(b) (AGC(1)000617 and AGC(1)-000619). [^126]: Letter from Gaetan Pilon (Manager-Band Governance, Indian and Northern Affairs Canada) to District Manager of Sudbury District, dated February 27, 1991, Ex. 1, Tab 342, Letter from G. Restoule (Lands Revenue and Trust Officer, Lands Revenue and Trusts, Sudbury District, Indian and Northern Affairs Canada). dated March 11, 1991, Ex. 1, Tab 343, Band Council Resolution, dated September 6, 1992, Ex. 1, Tab 344, and Letter from K. Rivard (Acting Lands Revenue and Trust Officer-Lands Revenue and Trusts, Sudbury District, Indian and Northern Affairs Canada), dated September 28, 1992, Ex. 1, Tab 345, all referred to in the Joint Expert Report, January 2015, at para. 11.5(b) (AGC(1)-000620, AGC(1)-000621, AGC(1)-000622 and AGC(1)-000623). [^127]: Letter from John Dochemay to Department of Indian Affairs, dated June 22, 1914, Ex. 1, Tab 174, referred to in the Joint Expert Report, January 2015, at para. 11.6(b) (PL(HOLMES-REPLY)-DOC-419). [^128]: Pay-list of the New Brunswick House for First Payment, Ex. 1, Tab 062, referred to in the Joint Expert Report, January 2015, at para. 11.6(b) (PL(HOLMES-T9)-DOC-27:2). [^129]: Petition, Ex. 1, Tab 002, and Urgent Petition (Praying for the Closed Season on Beaver & Otter To Be Withdrawn as from 1 February 1929 to 31st of March 1929 as in Former Years), Ex. 1, Tab 001, both referred to in the Joint Expert Report, January 2015, at para. 11.6(c) (AGC(1)-000025 and AGC(1)-000026). [^130]: Letter from Pat Fletcher (Missanabie) to Assistant Deputy and Secretary, Department of Indian Affairs, dated January 24, 1930, Ex. 1, Tab 228, referred to in the Joint Expert Report, January 2015, at para. 11.6(c ). [^131]: Letter from Brad Fletcher, dated May 29, 1942, Ex. 1, Tab 268, quoted in the Joint Expert Report, January 2015, at para. 11.6(d) (AGC(1)-000512:1-2). [^132]: Letter from P. H. Godsell (Manager, Hudsons Bay Company – Missanabie) to Department of Indian Affairs, dated March 20, 1915, Ex. 1, Tabs 178 and 179, quoted in the Joint Expert Report, January 2015, at para. 11.7(b), and see: fn. 102 (AGC(1)-000374:1-2 and PL(1)-000104:1-2). [^133]: Letter from J. D. McLean (Assistant Deputy and Secretary) to Aubrey White (Deputy Minister, Department of Lands Forests), dated April 14, 1915, Ex 1, Tabs 184 and 185, quoted in the Joint Expert Report, January 2015, at para. 11.7(c) (ONT)1)-000095 and PL(1)-000108). [^134]: Letter from P. H. Godsell (Manager, Hudson’s Bay Company – Missanabie) to Secretry of Department of Indian Affairs, dated April 8, 1915, Ex. 1, Tab 183, quoted from and referred to in the Joint Expert Report, January 2015, at para. 11.7(d) and see: fn. 101(AGC(1)-000378 and Map/ Plan (the sketch) Ex.1, Tab 003, copied in the Joint Expert Report, January, 2015, below para.11.7(d) (ONT(1)-000010). [^135]: Letter from J. D. McLean (Assistant Deputy and Secretary) to Aubrey White (Deputy Minister, Department of Lands Forests), dated April 14, 1915, Ex. 1, Tabs 184 and 185, referred to in the Joint Expert Report, January 2015, at para. 11.7(e) and see: fn. 123 (ONT(1)-000095and PL(1)-000108). [^136]: Joint Expert Report, January 2015, at para. 11.7(e). [^137]: Letter from William McLeod (Indian agent) to J. D. McLean (Secretary, Department of Indian Affairs), dated July 22, 1915, Ex. 1, Tab 186, referred to and quoted in the Joint Expert Report, January 2015, at para 11.7(f), (PL(1)-000114). The three historians indicate that no other subsequent correspondence has been located with respect to this issue, suggesting that the matter was dropped after receiving the advice of the Indian Agent. [^138]: Letter from James Fletcher to D.C. Scott (Deputy Superintendent General, Department of Indian Affairs), dated April 16, 1929, Ex. 1, Tab 224, referred to and quoted in the Joint Expert Report, January 2015, at para. 11.7(g) (PL(1)-000138). [^139]: Letter from A. F. Mackenzie (Acting Assistant Deputy & Secretary, Department of Indian Affairs) to James Fletcher, dated May 1, 1929, Ex. 1, Tab 225, referred to and quoted in the Joint Expert Report, January 2015, at para. 11.7(h) (PL(1)-000139). [^140]: Letter from James Fletcher to Department of Indian Affairs, dated June 2, 1936, Ex 1, Tab 247 (transcription) and Tab 248 (handwritten) referred to and quoted in the Joint Expert Report, January 2015, at para. 11.7(i) (AGC(1)-000498:1-2(handwritten) and AGC(1)-000499 (transcription)). [^141]: Letter from A.F. MacKenzie (Secretary) to D. J Taylor (Deputy Minister of Department of Game and Fisheries), dated June 9, 1936, Ex. 1, Tab 249, referred to and quoted in the Joint Expert Report, January 2015, at para. 11.7(j) (AGC(1)-000501). [^142]: Ibid. [^143]: Letter from Assistant to Deputy Minister, Department of Game and Fisheries to A.F. MacKenzie (Secretary of Department of Indian Affairs), dated June 26, 1936, Ex. 1, Tab 250, referred to in the Joint Expert Report, January 2015, at para. 11.7(k) (AGC(1)-000502). [^144]: Joint Expert Report, January 2015, at para. 11.7(k). [^145]: Agreed Statement of Facts, at para. 126. [^146]: The plaintiffs have suggested other dates as the point of crystallization being: (1) The date the location of the reserve is agreed upon (Statement of Issues of the Plaintiff, January 5, 2016, at para. 31; Missanabie Cree First Nation v. Ontario 2011 ONSC 5196, at para. 20, additional reasons, 2012 ONSC 2186, leave to appeal to the Divisional Court refused 2012 ONSC 2701 (Div. Ct.)); and, (2) the date of the survey of the reserve when it is set aside for the use and benefit of the Missanabie Cree (Statement of Issues of the Plaintiff, January 5, 2016, at para. 31). [^147]: S.C. 1924, c. 48. [^148]: Amended Fresh as Amended Statement of Claim, at para. 29. [^149]: Order of Master Sproat, dated April 12, 2011. [^150]: Order of Madam Justice Himel, dated November 4, 2014. [^151]: R. v. Sparrow, 1990 104 (SCC), [1990] 1 S.C.R. 1075, at para. 56. [^152]: R. v. Sioui, 1990 103 (SCC), [1990] 1 S.C.R. 1025, at p. 1063; Simon v. The Queen, 1985 11 (SCC), [1985] 2 S.C.R. 387, at p. 401. [^153]: R. v. Sparrow (1990), 1990 104 (SCC), 1 S.C.R. 1075, at pp. 1107‑8 and 1114; R. v. Taylor (1981), 1981 1657 (ON CA), 34 O.R. (2d) 360 (Ont. C.A.), at p. 367. [^154]: See Nowegijick v. The Queen, 1983 18 (SCC), [1983] 1 S.C.R. 29, at p. 36; Simon v. The Queen, supra, (fn. 152), at p. 402; R. v. Sioui, supra, (fn. 152) at p. 1035; and, Mitchell v. Peguis Indian Band, 1990 117 (SCC), [1990] 2 S.C.R. 85, at pp. 142‑43. [^155]: Nowegijick v. The Queen, supra, (fn. 154), at p. 36; Simon v. The Queen, supra, (fn. 152), at p. 402; R. v. Sioui, supra, (fn. 152) at p. 1035; and, Mitchell v. Peguis Indian Band, 1990 117 (SCC), [1990] 2 S.C.R. 85, at pp. 142‑43. [^156]: R. v. Badger, 1996 236 (SCC), [1996] 1 S.C.R. 771, at para. 41. [^157]: 1999 SKQB 218: The case dealt with a similar question to the one asked in this one. Should the population used to calculate land entitlement under treaty (in that case, Treaty No. 6) be at the time land was first set apart or, given that the