Simon's Megalomaniacal Legal Resources

Indigenous - Treaty Interpretation

. Fletcher v. Ontario

In Fletcher v. Ontario (Ont CA, 2024) the Court of Appeal considered (and dismissed) a native appeal concerning the instatement of an indigenous reserve after the Crown had disregarded a Treaty duty to establish one since 1906. The essential issue of the case was the size of a 'new' reserve, as the Treaty calculated that by the band population - but was that the 1906 population or the modern population (ie. the 'crystallization date')? The trial court found it to be the 1906 population.

Here the court, starting with the trial court [paras 42-52], consider the interpretation of the Treaty:

D. THE TRIAL JUDGE’S DECISION

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

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

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

....

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

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

....

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

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

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

....

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

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

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

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

. Fletcher v. Ontario [SOR]

In Fletcher v. Ontario (Ont CA, 2024) the Court of Appeal considered (and dismissed) a native appeal concerning the instatement of an indigenous reserve after the Crown had disregarded a Treaty duty to establish one since 1906. The essential issue of the case was the size of a 'new' reserve, as the Treaty calculated that by the band population - but was that the 1906 population or the modern population? The trial court found it to be the 1906 population.

Here the court sets out the standard of review for issues of Treaty interpretation:

(1) Standard of Review

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

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