Lac La Ronge Indian Band v. Canada

- 1 -

1999 SKQB 218

Q.B.

No. 2655

A.D. 1987

J.C.S.

IN THE QUEEN’S BENCH

JUDICIAL CENTRE OF SASKATOON

BETWEEN:

CHIEF MILES VENNE, and all of the Councillors

of the Lac La Ronge Indian Band, representing themselves

and all other members of the Lac La Ronge Indian Band, and

all members of the James Roberts Band of Cree Indians and

Amos Charles Band of Cree Indians, and all of the lawful

successors of those two Bands

PLAINTIFFS

- and -

HER MAJESTY THE QUEEN In Right of Canada,

and HER MAJESTY THE QUEEN in Right of the

Province of Saskatchewan

DEFENDANTS

for the plaintiffs

D. J. Kovatch and J. D. Jodouin

M. R. Kindrachuk

for the defendant, Her Majesty the Queen

in Right of Canada

P. M. McAdam

for the defendant, Her Majesty the Queen

in Right of Saskatchewan

JUDGMENT

GEREIN J.

November 30, 1999

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CONTENTS

PAGE

A. Claims and Issues

B. Introduction

2

4

C. Land Allotments To The Lac La Ronge Indian Band

D. Interpretation Of Treaty No. 6

10

15

18

22

24

27

31

34

37

56

75

77

(1)

(2)

Contentious Clauses

The Law

(a)

(b)

Rules of Interpretation

Admissibility of Extrinsic Evidence

(i) Evidence of Conduct In Modern Times

(ii) Oral History

(iii) Historians

(3)

(4)

(5)

(6)

(7)

The Reserve Land Clause - The Problem

Provision For Reserve Lands In Other Treaties

Subsequent Conduct In Calculating Reserve Lands

Oral History

Interpretation of Reserve Land Clause

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(8)

Interpretation of Ammunition and Twine Clause

88

E. Band Council Resolution

90

92

(1)

(2)

(3)

The Facts

Authority of the Band Council

Informed Consent

119

130

F. Extinguishment of Land Entitlement by Orders-in-Council

G. Reserve Creation

134

138

H. Candle Lake Lands

156

191

(1)

(2)

The Facts

Candle Lake Lands - A Reserve?

I. La Ronge School Lands

203

204

221

(1)

(2)

The Facts

La Ronge School Lands - A Reserve?

J. Fiduciary Relationship

K. Estoppel

234

241

244

L. Quantification of Plaintiffs’ Claims

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M. Conclusion

244

A. CLAIMS AND ISSUES

[1]

The claims of the plaintiffs are several and varied, but they essentially fit

within these three categories:

(1)

(2)

Entitlement to lands and monies pursuant to a treaty agreement;

Entitlement to certain lands situate in the vicinity of Candle Lake,

Saskatchewan, because they were once set apart as an Indian

Reserve; and

(3)

Entitlement to certain lands situate in the town of La Ronge,

Saskatchewan, because they were once set apart as an Indian

Reserve.

I have concluded that the plaintiffs should succeed in respect to the first, but fail in

respect to the other two.

[2]

Within the stated categories, there are many issues which the litigants

describe in somewhat different terminology. I choose to describe them as follows:

(1)

What is the correct interpretation of the Reserve Lands clause of

Treaty No. 6 in respect to the method to be employed in calculating

land entitlement?

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(2)

(3)

What is the correct interpretation of the clause to provide

ammunition and twine as contained in the adhesion to Treaty No. 6?

If Canada has not fulfilled its obligation under the Reserve Lands

clause, is it relieved from doing so by a band resolution, dated May

8, 1964, of the Lac La Ronge Indian Band?

(4)

(5)

If Canada has not fulfilled its obligation under the Reserve Lands

clause, was the entitlement of the Lac La Ronge Indian Band

extinguished by certain Orders-in-Council?

Has Canada fulfilled its obligation to the plaintiffs under the

Reserve Lands clause and the clause to provide ammunition and

twine?

(6)

(7)

What steps must be taken in order to create an Indian Reserve?

Were certain lands at Candle Lake, Saskatchewan, set apart as an

Indian Reserve?

(8)

(9)

Were certain school lands in the Town of La Ronge, Saskatchewan,

set apart as an Indian Reserve?

Did Canada owe a fiduciary duty to the Lac La Ronge Indian Band;

and if so, did they fulfill that duty?

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(10) If the Lac La Ronge Indian Band is entitled to additional Reserve

Land, is Canada estopped from obtaining additional land from

Saskatchewan by reason of paragraph 10 of the Natural Resources

Transfer Agreement?

[3]

Three further issues were raised and I describe them as follows:

(1)

(2)

(3)

What was the effect of a “reservation” noted in the records of the

Department of the Interior, of the Government of Canada, on March

20, 1930?

Did the lands at Candle Lake pass to the Province of Saskatchewan

through the operation of the Natural Resources Transfer

Agreement?

If the lands at Candle Lake did pass to the Province of

Saskatchewan, were they subject to a trust or other interest in favour

of the Lac La Ronge Indian Band?

As I have concluded that an Indian Reserve was never set aside at Candle Lake, there is

no need to determine these three issues and I refrain from doing so.

B. INTRODUCTION

[4]

In parts of Canada there has been contact between Indians and non-Indians

for about five hundred years. It has been so in the prairies for at least one hundred and

fifty years. Absent a few exceptions, the two peoples have co-existed in peace and while

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harmony has not always been present, disputes were generally resolved without recourse

to armed conflict. Peaceful co-existence between the two disparate peoples was achieved

in part through the negotiation and execution of various treaties. These came into

existence as Europeans gradually moved across this country and the treaties were some

seventy in number.

[5]

The earliest treaty was in 1640 and is commonly called the Two-Row

Wampum Treaty. It was between the five nations of the Iroquois and the Dutch Crown at

New Amsterdam, which is now New York City. As long ago as then, land and its use

was a subject of negotiation. At that time the Iroquois surrendered their beaver hunting

grounds north of Lakes Ontario and Erie. On two later occasions, in 1701 and 1726, they

further surrendered their beaver hunting grounds to the British Crown.

[6]

Between 1725 and 1794 there were nine treaties between the British Crown

and the Mi’Kmaqs, Abenakis and Malecites along the Atlantic Seaboard. All of these

treaties addressed the subject of peace and friendship and had that as their purpose. They

did not address the subject of land, its use or its surrender. They did confirm the right of

the Indians to hunt and fish throughout the territory.

[7]

The Hurons entered into treaties with the British Crown in 1760 and 1764.

The first guaranteed the Indians free passage back to their home lands and the right to

practise their religion and customs. The second was a treaty of peace and friendship.

[8]

Following the American Revolution there was a great influx into Canada of

the United Empire Loyalists. They had to be accommodated and land made available.

Here truly began the process of land surrender. There were twenty-nine treaties executed

between 1764 and 1862. They speak mainly of the surrender and extinction of Indian

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title to the land; although in some there was provision for monetary payments, the setting

aside of Reserves and the protection of fishing and hunting rights.

[9]

In 1850 the Robinson Superior Treaty and the Robinson Huron Treaty came

into existence. They followed the directives of the Royal Proclamation of October 7,

1763, and by those treaties the Indians surrendered title to the land which stretched from

the shores of Lake Huron and Lake Superior up to the height of land which separated the

waters flowing into Hudson’s Bay from those flowing into the Great Lakes. The two

treaties also provided for annuities; guaranteed hunting and fishing rights to the Indians;

and contained schedules setting aside identified land for Indian Reserves.

[10]

Between 1850 and 1854, fourteen treaties were entered into on Vancouver

Island. They were primarily concerned with the surrender of Indian title to land so that

settlement could take place and commercial development proceed.

[11]

That then brings us to the numbered treaties. Confederation took place in

1867. Settlement of the West was moving ahead. The railroad was being constructed

along with the telegraph system. Manitoba was created a province in 1870 and some of

the Indians in that territory were less than satisfied with the situation and wanted a treaty.

As a result, Treaty No. 1 was negotiated and concluded on August 3, 1871 with the

Chipewayans and Swampy Crees. In this document, as in all of the numbered treaties,

the Indians did “. . .cede, release, surrender, and yield up to Her Majesty the Queen. . .”

all the lands encompassed within the area described in the treaty. There was provision to

create Reserve Lands of 160 acres per family of five; to pay annuities of $3.00 per

person; to provide schools; and to provide agricultural implements. A gift of $3.00 was

to be paid to each Indian in extinguishment of all claims.

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[12]

Treaty No. 2 was executed less than three weeks later, on August 23, 1871.

It contained provisions similar to those of Treaty No. 1. Shortly after the document was

executed, disagreement arose as to what had been promised to the Indians as opposed to

what was actually written into the treaty. In time a memorandum was created listing the

things that had been promised, but not included in the document. By an Order-in-Council

in 1875, that memorandum was made a part of the two treaties.

[13]

Treaty No. 3 was signed on October 3, 1873, with the Ojibbeway Indians.

As before, the Indians surrendered their land, but now it was to the Government of

Canada for Her Majesty the Queen. However, the price increased. Reserve lands were to

consist of 640 acres for each family of five or in proportion thereto. The annuities were

set at $5.00. The gifts were $12.00 for each person. The annual sum of $1,500.00 was to

be expended for the purchase of ammunition and twine. Provision was made for schools

and the right to hunt and fish throughout the surrendered lands.

[14]

Increased settlement, continued progress in constructing the railroad, the

arrival of the Northwest Mounted Police and a desire to introduce steam navigation on

Lake Winnipeg, were some of the motivating factors leading up to the next two treaties.

On September 15, 1874, Treaty No. 4 was signed and Treaty No. 5 followed on

September 24, 1875. Their content was similar to that of Treaty No. 3. The boundaries

of Treaty No. 5 were extended in 1908, 1909 and 1910. When that had been done, the

treaty process was complete within the Province of Manitoba.

[15]

The next treaty was Treaty No. 6 which was entered into with the Plain and

the Wood Cree Tribes of Indians and related to much of what is now Saskatchewan. The

document was signed by different parties on various dates, more particularly August 23

and 28, 1876, near Fort Carlton, Saskatchewan, and September 9, 1876, near Fort Pitt.

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For some time prior the Indians had sought a treaty for they could see their traditional

way of life disappearing. They obtained what had been provided in the preceding

treaties, but they also secured other benefits. It was agreed that a medicine chest would

always be available; that $1,000.00 would be expended for seed grain in each of the first

three years; and that assistance would be provided in time of need.

[16]

Since Treaty No. 6 is the foundation of this action the entire body of the

Treaty without the numerous signatures, is reproduced as Appendix “A” to this judgment.

The source is The Treaties of Canada With The Indians of Manitoba and The North-West

Territories by The Honourable Alexander Morris, P.C., first printed in 1880, and now

published by Fifth House Publishers (Saskatoon: Fifth House Publishers, 1991).

[17]

Treaty No. 7 was with the Blackfoot confederacy and the Stoney Indians

who were located in southern Alberta. It is dated September 22, 1877, and its terms are

similar to the earlier treaties, although there was no provision for a medicine chest or

assistance in time of need. With the conclusion of this treaty, seven treaties had been

negotiated in six years and Canada had secured title to the whole of the fertile belt

between Lake Superior and the foothills of the Rocky Mountains.

[18]

Treaty No. 8 was entered into in 1899 and related to northern

Saskatchewan, northern Alberta and an area in north eastern British Columbia. Treaty No.

9 was signed in 1905 and was concerned with that portion of northern Ontario which had

not been dealt with in the Robinson treaties. In 1929 to 1930, this treaty was extended to

include all the territory of northern Ontario up to James Bay and Hudson Bay. Treaty No.

10 was executed in 1905 and dealt with the last of Saskatchewan territory not earlier

encompassed in a treaty. The last numbered treaty was Treaty No. 11 and it was entered

into with the Dene in 1921.

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[19]

The last two treaties in Canada were executed in 1923 with the

Chipewayans and Mississaugas. They were in respect to central Ontario and dealt with

hunting and fishing rights.

[20]

As it happened, many Indian Bands were not signatories to an original

treaty. When they later expressed a desire to enter into Treaty, they would do so by

signing an Adhesion Agreement. Such a document was executed on February 11, 1889,

by the James Roberts Band and the William Charles Band, the former of which is the

antecedent to the plaintiff, the Lac La Ronge Indian Band. Like Treaty No. 6, the

Adhesion Agreement is central to this case. Therefore, it is reproduced in its entirety

absent signatures, as Appendix “B” to this judgment. The source is Indian Treaties and

Surrenders, Volume II, first printed in 1891 and now published by Fifth House Publishers

(Saskatoon: Fifth House Publishers, 1992).

[21]

The foregoing summary is not intended to even approach a full portrayal of

the treaty process. It was a complex activity which involved the full spectrum of human

needs, desires and aspirations. It was carried out by many people who were subject to the

strengths and weaknesses which constitute the human condition. I am satisfied that all

parties were motivated in part by self-interest, a condition both natural and known by all

concerned. All were looking to the future. The Indians were seeking an alternative to

what was disappearing from their lives. They were not looking for a whole new way of

life, but rather assistance within that which they knew. On the other hand, the Crown was

involved in creating a new nation and to that end was seeking to secure title to the land on

which that nation was to stand and grow. In pursuing their respective goals, I believe the

parties acted in good faith and with honesty and integrity.

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[22]

As I see it, there is a unity to the treaty process. While it stretched over

almost three hundred years there is a progression and a building on what went before.

This is particularly so with the Robinson treaties and then the numbered treaties. The

parties involved negotiated within the context of what had gone before and with

knowledge of their present needs and what they believed would be their future needs.

The documents they created expressed their agreements as they understood them at that

time. Unfortunately, time has moved us far from the original documents and our present

perspective assists us little to understand all that which was stated long ago. However,

we do have the written words and we can put them in an historical context and thereby

come to a conclusion as to their meaning. While the task is difficult and not without risk,

it is not impossible.

C. LAND ALLOTMENTS TO THE LAC LA RONGE INDIAN BAND

[23]

On August 23 and 28 and September 29, 1876, at Carlton and Fort Pitt the

Crown entered into a treaty with the Plain and Wood Cree Indians and other tribes of

Indians. One of the terms agreed upon was that Reserve Lands would be set aside for the

Indians. However, the predecessor to what is now the Lac La Ronge Indian Band was not

a signatory to Treaty No. 6 for it occupied land which was primarily north of that

encompassed by the treaty.

[24]

As time passed the Indians of that Band expressed a desire to enter into a

treaty (Ex. P-1, p. 96). In response, Order-in-Council P.C. No. 2554, dated November 29,

1888, authorized the negotiation of an arrangement providing to those Indians the same

benefits as were provided in Treaty No. 6 in exchange for the surrender of land

comprising some 11,066 square miles. It was recommended that this be accomplished by

an adhesion to Treaty No. 6 rather than executing another distinct treaty (Ex. P-1, p. 99).

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Negotiations followed and on February 11, 1889, the James Roberts Band, now known as

the Lac La Ronge Indian Band, and the William Charles Band, now known as the

Montreal Lake Band, signed an Adhesion Agreement. They agreed to transfer, surrender

and relinquish all their right, title and interest whatsoever in certain described lands. The

Indians, in return, were to receive all the benefits provided in Treaty No. 6.

[25]

Instructions were soon after given by letter dated April 20, 1889, to Indian

Commissioner, Mr. Hayter Reed, that he was to procure the ploughs, seed potatoes,

livestock, ammunition, twine and other items promised (Ex. P-1, p. 143). In October,

1889, Mr. A.W. Ponton, an assistant surveyor employed by the Department of Indian

Affairs, surveyed a reserve for these Indians at Montreal Lake (Ex. P-2, p. 381). It was

known as Indian Reserve No. 106 and contained 23 square miles (14,720 acres). For the

next eight years no further land was set aside, despite the desire of the Indians to obtain

more and the efforts of government officials to locate additional suitable land.

[26]

Then in July, 1897, Mr. Ponton completed the survey of a reserve in the

area of Sturgeon Lake and so advised by his report dated August 13, 1897 (Ex. P-2, p.

325). On April 14, 1899, he submitted his plan and field notes (Ex. P-2, p. 379). The

reserve was confirmed by Order-in-Council P.C. 2710, dated January 6, 1900 (Ex. P-2, p.

405). It was located on the Little Red River and was known as Indian Reserve No. 106A

or the Little Red River Indian Reserve. It contained 56.5 square miles (36,160 acres) and

was intended for the use of both the Montreal Lake Band and the Lac La Ronge Indian

Band.

[27]

There then were ongoing discussions, but again no further land was set

aside for some ten years. The Indians desired reserves in the area of Lac La Ronge and

Stanley Mission for that was where they resided. In September and October, 1909, Mr. J.

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Lestock Reid surveyed thirteen reserves containing in total 5,354.4 acres. They were

described as follows:

No. 156 containing 1,586.8 acres at Hudson Bay Post

southwest side of the Lake;

No. 156A, Potato River Reserve, containing 1,011.6 acres at

southwest side of the Lake;

No. 156B, Kitsakie Indian Reserve, containing 204.34 acres

at mouth Montreal River, west side of Lake;

No. 156C, Sucker River Indian Reserve, containing 55.4

acres on west side of Lac La Ronge;

No. 157, Stanley Indian Reserve, containing 621 acres south

of Churchill River opposite Stanley;

No. 157A, Stanley Indian Reserve, containing 9.4 acres

junction of Churchill and Rapid River;

No. 157B, Old Fort Indian Reserve, containing 13.4 acres at

the north end of Lac La Ronge;

No. 157C, Four Portages Indian Reserve, containing 5 acres

at northwest corner of Lake;

No. 157D, Fox Point Indian Reserve, containing 140.2 acres

southeast side of Lake;

No. 157E, Fox Point Indian Reserve, containing 10.3 acres

an island east of Fox Point;

No. 158, Little Hills Indian Reserve, containing 1,278 acres

on Montreal River, west of Lake;

No. 158A, Little Hills Indian Reserve, containing 94.6 acres

on Montreal River; and

No. 158B, Little Hills Indian Reserve, containing 324 acres

on Montreal River.

All of these reserves were much later confirmed in 1930 by thirteen individual Orders-in-

Council (Exs. P-3, p. 682; P-5, pp. 1483 to 1486; P-5, pp. 1529 to 1532).

[28]

In the meantime, in 1910, the Lac La Ronge Indian Band broke into two

groups: the James Roberts group residing around La Ronge and the Amos Charles group

- 15 -

residing around Stanley Mission. The latter group should not be confused with the

William Charles Band which signed the Adhesion Agreement. Nothing turns on this split

for they rejoined in 1949 and have since existed as the Lac La Ronge Indian Band.

[29]

There subsequently was much activity in respect to lands situate in the

vicinity of Candle Lake. I will later return to this subject, but now simply note that none

of those lands have been treated as Reserve Lands by the Dominion of Canada.

[30]

In 1935, a reserve containing 1,596.6 acres was surveyed adjacent to the

existing Little Red River Indian Reserve. This was confirmed by Order-in-Council P.C.

1297, dated March 31, 1948 (Ex. P-8, p. 2436). That same Order-in-Council divided the

reserve between the Montreal Lake Band on the one hand and the Amos Charles and

James Roberts Bands on the other. The one area was then to be known as the Montreal

Lake Reserve No. 106B and the other as the Little Red River Indian Reserve No. 106C.

As a result of the division, the Amos Charles and James Roberts Bands obtained 32,007.9

acres.

[31]

In 1948 a further 6400 acres was surveyed for the Lac La Ronge Indian

Band. It was confirmed by Order-in-Council P.C. 1419, dated March 21, 1950, and was

to be known as Little Red River Indian Reserve No. 106D (Ex. P-9, p. 2504).

[32]

After that there were on-going and extensive negotiations. These

culminated in a meeting at which a Band Council Resolution was executed by seven

councillors, there being no chief chosen at the time (Ex. P-11, p. 3105). According to the

resolution the Band agreed to accept 63,330 acres of land as its full entitlement under

Treaty No. 6.

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[33]

Matters still dragged and another nine years passed before all the land was

set aside for the Lac La Ronge Indian Band. The newly created Reserves totalled 63,385

acres and were the following:

(a)

(b)

(c)

Morin Lake Indian Reserve No. 217, containing 32,640 acres -

Order-in-Council P.C. 1968 - 1732, dated September 17, 1968 (Ex.

P-12, p. 3456).

Grandmother’s Bay Indian Reserve No. 219, containing 11,092

acres - Order-in-Council P.C. 1970 - 1613, dated September 16,

1970 (Ex. P-12, p. 3577).

Bittern Lake Indian Reserve No. 218, containing 17,338 acres -

Order-in-Council P.C. 1973 - 2676, dated September 11, 1973. No

copy of the Order-in-Council is filed, but there is a letter of

recommendation dated September 3, 1973, from the Minister of

Indian Affairs and Northern Development (Ex. P-13, p. 3792).

(d)

Morin Lake Indian Reserve No. 217 (Addition), containing 2,315

acres - Order-in-Council P.C. 1973 - 2677, dated September 11,

1973 (Ex. P-13, p. 3806).

[34]

From my review of the materials filed, the following is a summary of the

reserve lands set apart for the Lac La Ronge Indian Band. On four occasions lands were

set aside as follows:

- 17 -

1899 - I.R. No. 106 A

36,160.0 acres

5,354.4 acres

1,596.6 acres

6,400.0 acres

49,511.0 acres

1909 - I.R. No. 156 to 158B

1935 - I.R. No. 106A

1948 - I.R. No. 106D

TOTAL

However in that same year of 1948, Indian Reserve No. 106A was divided and the Lac La

Ronge Indian Band retained only 32,007.9 acres in what was designated as I.R. No.

106C. As a result, at that time the Band’s total allotment was reduced to 43,762.3 acres.

Then between 1968 and 1973 an additional 63,385 acres were set apart bringing the total

present allotment to 107,147.3 acres or approximately 167.4 square miles.

D. INTERPRETATION OF TREATY NO. 6

(1) Contentious Clauses of Treaty No. 6

[35]

There are two clauses about which there is disagreement and which require

interpretation. The first is contained solely within the treaty itself and provides as

follows:

And Her Majesty the Queen hereby agrees and

undertakes to lay aside reserves for farming lands, due

respect being had to lands at present cultivated by the said

Indians, and other reserves for the benefit of the said Indians,

to be administered and dealt with for them by Her Majesty’s

Government of the Dominion of Canada, provided all such

reserves shall not exceed in all one square mile for each

- 18 -

family of five, or in that proportion for larger or smaller

families, in manner following, that is to say :--

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 ;

Provided, however, that Her Majesty reserves the

right to deal with any settlers within the bounds of any lands

reserved for any band as she shall deem fit, and also that the

aforesaid reserves of land or any interest therein may be sold

or otherwise disposed of by Her Majesty’s Government for

the use and benefit of the said Indians entitled thereto, with

their consent first had and obtained ; and with a view to

show the satisfaction of Her Majesty with the behavior and

good conduct of her Indians, she hereby, through her

Commissioners, makes them a present of twelve dollars for

each man, woman and child belonging to the bands here

represented, in extinguishment of all claims heretofore

preferred ;

The clause clearly provides that one square mile or 640 acres of land shall be provided for

each family of five. Put otherwise, it provides that each Indian is to receive 128 acres

(640 ÷ 5).

[36]

What the clause does not clearly stipulate is when the number of the Indians

is to be ascertained. Is the benefit to be restricted to only those Indians alive when the

treaty was executed or is it to be extended to include those who came after, and if so, for

how long? The plaintiffs argue for an expansive interpretation; the defendants for a

restrictive one.

- 19 -

[37]

The second clause which requires interpretation pertains to ammunition and

twine and has its genesis in Treaty No. 6. The clause as contained in the Treaty reads:

It is further agreed between Her Majesty and the said

Indians that the sum of fifteen hundred dollars per annum,

shall be yearly and every year expended by Her Majesty in

the purchase of ammunition and twine for nets for the use of

the said Indians, in manner following, that is to say :--In the

reasonable discretion as regards the distribution thereof,

among the Indians inhabiting the several reserves, or

otherwise included herein, of Her Majesty’s Indian Agent

having the supervision of this treaty ;

The Adhesion Agreement, executed some thirteen years later in 1889, contains this

provision.

And we hereby agree to accept the several benefits,

payments and reserves promised to the Indians adhering to

the said treaty at Fort Pitt or Carlton ; with the proviso as

regards the amount to be expended annually for ammunition

and twine, and as respects the amount to be expended for

three years annually in provisions for the use of such Indians

as are settled on reserves and are engaged in cultivating the

soil, to assist them in such cultivation, that the expenditure

on both of these items shall bear the same proportion to the

number of Indians now treated with as the amounts for those

two items as mentioned in Treaty No. 6 bore to the number

of Indians then treated with.

Here the plaintiffs argue that they were to receive an amount based on an additional

$1,500.00 a year for ammunition and twine. The defendants argue that there should be a

sharing of the original $1,500.00.

- 20 -

[38]

I consider the interpreting of the two clauses to be quite different and

distinct matters and I will deal with them separately, beginning with the Reserve Land

clause. However, before doing that I will review what I consider to be the applicable law.

(2) The Law

(a) Rules of Treaty Interpretation

[39]

In respect to the law, there are several topics to be addressed. The first is

the approach to be taken when interpreting a treaty and here counsel are in agreement.

The principles have been conveniently listed in Saanichton Marina Ltd. v. Claxton

(1989), 36 B.C.L.R. (2d) 79 (B.C.C.A.) at p. 84:

In approaching the interpretation of Indian treaties the

courts in Canada have developed certain principles which

have been enunciated as follows:

(a) The treaty should be given a fair, large and liberal

construction in favour of the Indians;

(b) Treaties must be construed not according to the

technical meaning of their words, but in the sense that they

would naturally be understood by the Indians;

(c) As the honour of the Crown is always involved,

no appearance of “sharp dealing” should be sanctioned;

(d) Any ambiguity in wording should be interpreted

as against the drafters and should not be interpreted to the

prejudice of the Indians if another construction is reasonably

possible;

- 21 -

(e) Evidence by conduct or otherwise as to how the

parties understood the treaty is of assistance in giving it

content.

The expression of these principles is to be found in

Nowegijick v. R., [1983] 1 S.C.R. 29, [1983] 2 C.N.L.R. 89,

[1983] C.T.C. 20, 144 D.L.R. (3d) 193, 83 D.T.C. 5041, 46

N.R. 41 [Fed.]; Simon v. R., [1985] 2 S.C.R. 387, 23 C.C.C.

(3d) 238, [1986] 1 C.N.L.R. 153, 24 D.L.R. (4th) 390, 71

N.S.R. (2d) 15, 171 A.P.R. 15, 62 N.R. 366; R. v. Bartleman,

supra; R. v. Taylor (1981), 34 O.R. (2d) 360 at 367, 62

C.C.C. (2d) 227 (C.A.).

The stated principles of interpretation have been approved by the Supreme Court of

Canada in a number of decisions. R. v. Horseman, [1990] 1 S.C.R. 901; R. v. Sioui,

[1990] 1 S.C.R. 1025; R. v. Sparrow, [1990] 1 S.C.R. 1075; and R. v. Badger, [1996] 1

S.C.R. 771.

[40]

In R. v. Horseman, supra, at p. 907, Madam Justice Wilson, albeit in

dissent, set out the rationale for treaty interpretation.

This Court has already established a number of

important guidelines for the interpretation of Indian treaties.

In Nowegijick v. The Queen, [1983] 1 S.C.R. 29, Dickson J.

(as he then was) stated at p. 36:

. . . treaties and statutes relating to Indians should be

liberally construed and doubtful expressions resolved in

favour of the Indians. . . . In Jones v. Meehan, 175 U.S. 1

(1899), it was held that Indian treaties “must . . . be

construed, not according to the technical meaning of [their]

words . . . but in the sense in which they would naturally be

understood by the Indians”. [Emphasis added]

- 22 -

In Simon v. The Queen, [1985] 2 S.C.R. 387, at p. 402,

Dickson C.J. pointed to his observation in Nowegijick and

reiterated that “Indian treaties should be given a fair, large

and liberal construction in favour of the Indians”.

The interpretive principles developed in Nowegijick

and Simon recognize that Indian treaties are sui generis (per

Dickson C.J. at p. 404 of Simon, supra). 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. This is why the courts must be especially

sensitive to the broader historical context in which such

treaties were negotiated. They must be prepared to look at

that historical context in order to ensure that they reach a

proper understanding of the meaning that particular treaties

held for their signatories at the time.

But the interpretive principles set out in Nowegijick

and Simon were developed not only to deal with the unique

nature of Indian treaties but also to address a problem

identified by Norris J.A. in R. v. White and Bob (1964), 50

D.L.R. (2d) 613 (B.C.C.A.), at p. 649 (aff’d [1965] S.C.R.

vi):

In view of the argument before us, it is necessary to point out

that on numerous occasions in modern days, rights under

what were entered into with Indians as solemn engagements,

although completed with what would now be considered

informality, have been whittled away on the excuse that they

do not comply with present day formal requirements and

with rules of interpretation applicable to transactions

between people who must be taken in the light of advanced

civilization to be of equal status.

In other words, to put it simply, Indian treaties must be given

the effect the signatories obviously intended them to have at

the time they were entered into even if they do not comply

with to-day’s formal requirements. Nor should they be

- 23 -

undermined by the application of the interpretive rules we

apply to-day to contracts entered into by parties of equal

bargaining power.

When interpreting an Indian treaty the court should not focus on formal requirements of

contract; but should otherwise seek to ascertain the intention of the parties at the time

when the treaty was negotiated. In doing this, reference should be had to the historical

context. In R. v. Taylor and Williams (1982), 34 O.R. (2d) 360 (Ont. C.A.) at p. 364 and

367. MacKinnon A.C.J.O. said:

Cases on Indian or aboriginal rights can never be

determined in a vacuum. It is of importance to consider the

history and oral traditions of the tribes concerned, and the

surrounding circumstances at the time of the treaty, relied on

by both parties, in determining the treaty’s effect.

. . .

Finally, if there is evidence by conduct or otherwise

as to how the parties understood the terms of the treaty, then

such understanding and practice is of assistance in giving

content to the term or terms. As already stated, counsel for

both parties to the appeal agreed that recourse could be had

to the surrounding circumstances and judicial notice could

be taken of the facts of history. In my opinion, that notice

extends to how, historically, the parties acted under the

treaty after its execution.

See also R. v. Marshall, [1999] S.C.J. No. 55 (Q.L.) (S.C.C.) judgment dated September

17, 1999.

- 24 -

[41]

This approach was approved by Mr. Justice Lamer (now Chief Justice) in R.

v. Sioui, supra, at p. 1068. I also note that he stated at p. 1069 that the interpretation must

be realistic and balanced.

. . .Even a generous interpretation of the document, such as

Bisson J.A.’s interpretation, must be realistic and reflect the

intention of both parties, not just that of the Hurons. The

Court must choose from among the various possible

interpretations of the common intention the one which best

reconciles the Hurons’ interests and those of the conqueror.

In the end the principles of interpretation are aids in ascertaining the intentions of the

parties, bearing in mind their respective interests and aspirations.

[42]

In summary, treaty interpretation seeks to ascertain the intention of the

parties. One begins with a consideration of the words themselves, but they should be read

in their historical context.

(b) Admissibility of Extrinsic Evidence

[43]

In the interpretation of an Indian treaty, as with any contract, parol evidence

is not admissible absent ambiguity or where it would add to or subtract from the meaning

of the written words. In R. v. Horse, [1988] 1 S.C.R. 187 at p. 201, Mr. Justice Estey said

this.

I have some reservations about the use of this material

as an aid to interpreting the terms of Treaty No. 6. In my

view the terms are not ambiguous. The normal rule with

respect to interpretation of contractual documents is that

extrinsic evidence is not to be used in the absence of

- 25 -

ambiguity; nor can it be invoked where the result would be

to alter the terms of a document by adding to or subtracting

from the written agreement. . . .

However, he went on to consider the writings of Lieutenant-Governor Morris having said

this at p. 203.

In my opinion there is no ambiguity which would

bring in extraneous interpretative material. Nevertheless I

am prepared to consider the Morris text, proffered by the

appellants, as a useful guide to the interpretation of Treaty

No. 6. At the very least, the text as a whole enables one to

view the treaty at issue here in its overall historical context.

The rule as to restricting the uses of extrinsic evidence was repeated in R. v. Sioui, supra,

at p. 1049.

As this Court recently noted in R. v. Horse, [1988] 1

S.C.R. 187, at p. 201, extrinsic evidence is not to be used as

an aid to interpreting a treaty in the absence of ambiguity or

where the result would be to alter its terms by adding words

to or subtracting words from the written agreement.

[44]

I understand the law to be this. Extrinsic evidence is admissible if it is

tendered to portray the historical context in which the treaty was negotiated and signed.

R. v. Horse, supra; R. v. Horseman, supra; R. v. Sioui, supra. However, it is not

admissible to assist in the interpretation of the actual writing itself, absent ambiguity or

where it will add to or subtract from the writing. R. v. Horse, supra, and R. v. Sioui,

supra.

- 26 -

[45]

However, within the topic of extrinsic evidence there are some matters

which require comment. I will deal with each in turn as a separate subject.

i. Evidence of Conduct In Modern Times

[46]

As already stated, where ambiguity exists the court may take into account

subsequent conduct in determining the intent of the parties when they entered into a

treaty. With this in mind, counsel for the plaintiffs called several former cabinet

ministers and senior civil servants to testify about their approach to Indian land claims.

These people served in the respective federal and provincial governments during the

1960's to the 1980's. The plaintiffs also called people who had served within the

Federation of Saskatchewan Indians and people who had worked with Indian Bands

during those same periods of time.

[47]

Counsel for the defendants objected to the testimony on the ground that it

was too remote from the execution of the treaty. It was suggested that testimony be

restricted to a time frame of 20 to 30 years following execution of Treaty No. 6. I was

not inclined to reject the evidence simply on the ground of remoteness and I therefore

reserved my decision until after the evidence was tendered and its content ascertained.

[48]

In my opinion, the evidence should not be excluded just because it is

remote. The rationale for admitting evidence of conduct is that the parties themselves

knew what they intended by their agreement and they will presumably conduct

themselves in a manner consistent with their intent. It is a simple situation when one

looks to the parties themselves. However, those Indians and Crown officials are long

dead. Yet the conduct of their successors should or may be admitted into evidence in

certain circumstances.

- 27 -

[49]

In my opinion, the jurisprudence is somewhat vague on this question.

While there are decisions dealing with the admissibility of subsequent conduct, they do

not speak directly to the question of time constraints. They speak of understanding

historical context when interpreting a treaty and counsel suggests this means the history at

the time of the treaty. In R. v. Sioui, supra, there is this comment at p. 1060.

. . . Moreover, the subsequent conduct which is most

indicative of the parties’ intent is undoubtedly that which

most closely followed the conclusion of the document.

I do not read this as speaking to a restricted time frame. Obviously, the actual parties

would have first hand knowledge of what transpired and their conduct would be very

informative. Later conduct may be less so, but still useful.

[50]

In R. v. Taylor and Williams, supra, the court was required to determine the

treaty hunting and fishing rights of the accused. In doing so, the court accepted evidence

that such rights had been exercised since the time of the treaty up to the present. A like

approach was adopted in R. v. Bartleman (1985), 12 D.L.R. (4th) 73 (B.C.C.A.) where

the court looked at hunting practices over a period of some 160 years up to 1980. Those

cases would suggest that no time frame be imposed.

[51]

While I agree with that position I do so on this basis. If there is a

consistency in the conduct the entire course of conduct is admissible. Where the original

parties acted in a certain way and their successors have continued to act in the same way,

then all the conduct should be admitted. You have the benefit of the initial conduct,

which goes to explain intent, reinforced by continued practise. It may be otherwise where

- 28 -

the later conduct deviates from that at the outset. In such an instance a person who was

not a party is applying a new interpretation which is not grounded on what went before

and therefore is highly questionable.

[52]

In the instant case I must examine and weigh what various Crown officials

did over the years. Some of those officials were around when Treaty No. 6 was executed

and it fell to them to implement the various provisions, including the one related to the

creation of Reserves. It is appropriate, and even essential, to look at their conduct.

However, the Crown is not subject to mortality like human beings. Rather, it continues to

act through succeeding individuals and one must look to the ongoing conduct to ascertain

its continuity and consistency with what was done originally.

[53]

It is very useful to read what a signatory said about a treaty provision at or

about the time when the document was executed. It is equally useful to know whether or

not subsequent conduct by other people accorded with what was said. However, it is of

no value to learn that some person, fifty years later, acted differently based on his or her

own personal reading of the provision in the treaty. That conduct has no link to the

contemporaneous historical circumstances and therefore should not be admitted.

[54]

In summary, a court will accept evidence about the subsequent conduct of

the parties to a treaty because it may shed light on their intentions. The conduct of

successors will also be admitted if it is consistent with what went before because it is

simply an extension of the original conduct and reinforces it. In effect, the present relates

back to the past. In this scenario it would be artificial to impose an arbitrary time frame

of 20 or 30 years and I refuse to do so. On the other hand, if the conduct changes over

time, that changed conduct is not admissible for it cannot be said to be an extension of the

original conduct.

- 29 -

[55]

However, that does not end the matter. Much evidence was introduced in

the form of documents, correspondence and discussions as amongst government officials

and representatives of Indians from the period 1960 onwards. It was tendered on the

basis that it disclosed how the various parties interpreted the Reserve Land clause.

Having heard the evidence, I now conclude that it should not be admitted and I have

excluded it from my deliberations.

[56]

What transpired amongst various cabinet ministers, their officials and

Indian personnel involved treaty interpretation only in a secondary or peripheral way. By

that I mean that each person or group of persons may have had a particular opinion about

how the land entitlement should be calculated, but their focus and efforts were directed to

resolution of their disagreement. They were pursuing and involved in a settlement

process. Compromise was a key consideration.

[57]

The various negotiations and positions adopted within those negotiations

speak to modern attitudes and not to the intent which was present when the treaty was

negotiated. Accordingly, they cannot assist in ascertaining that original intent and should

therefore be excluded.

ii. Oral History

[58]

During this trial I heard from Indians who testified about what their

ancestors said about the meaning and intent of the Reserve Land clause. This testimony

clearly was hearsay, but in my opinion is properly admissible. Here I take guidance from

these remarks of Lamer C.J. in R. v. Van der Peet, [1996] 2 S.C.R. 507 at p. 558.

- 30 -

In determining whether an aboriginal claimant has

produced evidence sufficient to demonstrate that her activity

is an aspect of a practice, custom or tradition integral to a

distinctive aboriginal culture, a court should approach the

rules of evidence, and interpret the evidence that exists, with

a consciousness of the special nature of aboriginal claims,

and of the evidentiary difficulties in proving a right which

originates in times where there were no written records of

the practices, customs and traditions engaged in. The courts

must not undervalue the evidence presented by aboriginal

claimants simply because that evidence does not conform

precisely with the evidentiary standards that would be

applied in, for example, a private law torts case.

[59]

I realize that the Chief Justice was speaking about practices, customs and

traditions and not about parol evidence to assist in the interpretation of a treaty clause.

However, I believe the approach described should be extended to such testimony.

[60]

At the time of the treaty, and for some time after, the Indians did not create

written records. Thus we cannot look to documents to ascertain their thoughts at the

relevant time. This is in marked contrast to the Crown and its agents. However, the

Indians did verbalize their thoughts and to the extent those thoughts can be ascertained

from the oral tradition, a court should do so.

[61]

In my opinion, the testimony meets the requirements of necessity and

circumstantial probability of reliability. See R. v. Khan, [1990] 2 S.C.R. 531 and R. v.

Smith, [1992] 2 S.C.R. 915. The thoughts were expressed by persons now deceased and

relate to a time when no dispute about the right had yet arisen. Furthermore, the right was

that of the entire band and not just the individual speaking. Declarations by deceased

persons of such rights are admissible as an exception to the hearsay rule. See The Law of

- 31 -

Evidence In Canada by J. Sopinka, S.N. Lederman and A.N. Bryant (Toronto:

Butterworths, 1992), commencing at p. 216 and ending at p. 220.

Statements made by persons as to reputations of

public or general rights, marital relationships and ancient

historical matters are admissible under this common-law

exception. The rationale for this head of admissibility, like

the other exceptions, turns on the elements of necessity and

circumstantial probability of reliability. It is necessary

because the subject-matter of the declaration is so ancient in

time that no primary evidence to substantiate the fact exists.

It also carries with it a certain degree of reliability on the

ground that because the reputation affects the community as

a whole or a family, it is probably trustworthy for the

reputation would not have developed otherwise.

. . .

Declarations by individuals relating to the reputation

of a public or general right have been held admissible if

certain conditions are established. As with other common-

law exceptions to the hearsay rule, it is a precondition to

admissibility that the declarant be dead. Since the subject-

matter of the declaration usually involves reputation of

ancient rights, the statements, in all likelihood, would be

those of deceased persons. This precondition, however, is

just as applicable where the right in question is

contemporary.

The right or interest in question must be of a public or

general nature as opposed to private. Rights are public if

they affect the interest of the community as a whole, and

such matters as right of highway, or ferry, or the right of the

public to make use of ports or fishery in tidal waters, have

been recognized as such. General rights, on the other hand,

are those affecting a segment of the community only, and

usually fall within the category of customs and land

boundaries of a particular township, county, or a municipal

- 32 -

region. Thus, reputation evidence with respect to such

matters is admissible. Evidence of private rights, however,

is not. . . .

. . .

One other condition that must be met is that the

declaration must have been made ante litem motam, i.e.,

before any dispute or controversy over the right has arisen.

This requirement would eliminate more than declarations

made after the initiation of litigation. If the dispute had

advanced to the point where it would be likely to produce

bias in the mind of the declarant, the statement would not be

allowed even if a formal legal action has not been instituted.

[62]

While I have admitted the testimony, I have utilized it with caution and the

view that it is of limited value. The witnesses who purported to present the words spoken

in the past were individuals who have been actively involved in the pursuit of Indian

rights. As well, the words presented have passed through the minds of those witnesses

and perhaps have been coloured or distorted by their personal beliefs. This is not to say

that any witness was dishonest. In fact, I believe the very opposite to be the case as to

every person who gave evidence in this trial. However, that does not mean individuals do

not unknowingly succumb to personal bias or interest.

[63]

For example, it was stated that a person who was present when the

Adhesion Agreement was signed spoke of “the current population formula”. This seems

improbable as the phrase was not coined until rather recently. What has probably

happened is that the witness has interpreted what the ancestor said and then passed on the

interpretation. While this demonstrates a problem, it does not mean the evidence should

be excluded or ignored. Rather, it must be considered, weighed and given the value it

deserves. This very same process is applied to all evidence.

- 33 -

iii. Historians

[64]

Several persons testified about historical events. All had extensive

knowledge and expertise which had been acquired by one or more means, including

education, research, study and practical experience through work in the area of Indian

treaties. On behalf of the defendants it was argued that these people should not be

permitted to testify or to give opinion evidence about historical matters. It was submitted

that all of the relevant documents had been tendered in evidence and the court was well

able to review them and reach its own conclusions. To permit opinion evidence from

historians or the like would be to abdicate the court’s function.

[65]

I do not see it that way. The documentary evidence is voluminous; one

might well say mountainous. It would be foolish to reject assistance in understanding and

appreciating the content of the documents. As well, the opinions of these people can

assist the court in determining the significance of certain events and writings. The

guidance and opinions of these experts simply help the court to reach its ultimate

determination. This largely accords with what was said by Mr. Justice Teitelbaum in

Wewayakum Indian Band v. Canada and Wewayakai Indian Band (1995), 99 F.T.R. 1

(F.C.C.) at p. 189; affirmed as to result under the name Roberts v. Canada, October 12,

1999 (F.C.A.) ([1999] F.C.J. No. 1529 (Q.L.)).

There was some discussion regarding Geddes’ ability

to give expert or opinion evidence. Geddes was not before

me as an expert witness nor was he ever qualified as an

expert and therefore he was not entitled to give an expert

opinion. However, Geddes as an historian, can give answers

to specific questions that he feels capable of answering

whether calling for an opinion or not and providing the

- 34 -

answer or answers will be helpful to the court in ultimately

determining the issues that are to be decided. In this regard,

I note the comments of Sopinka, J., at p. 528 of The Law of

Evidence:

“Courts now have greater freedom to receive lay

witnesses’ opinions; but as such evidence approaches

the central issue that the court must decide, one can

still expect an insistence that the witnesses stick to

their primary facts and refrain from giving the

inferences. It is always a matter of degree. As the

testimony shades to a legal conclusion resistance

develops.”

Therefore, I allowed questions calling for an opinion

provided that Geddes felt capable of answering the

questions, that the answers would be helpful to the court and

that the opinion does not lead towards a legal conclusion of

an issue that I as the Judge must decide. I also wish to

emphasize that I will and have accorded the answers elicited

the weight I believe the answers deserve taking into account

that the opinion evidence is from a lay witness.

[66]

The Supreme Court of Canada discussed the admissibility of expert

evidence in R. v. Lavallee, [1990] 1 S.C.R. 852; R. v. Marquard, [1993] 4 S.C.R. 223;

and R. v. Mohan, [1994] 2 S.C.R. 9. In the last, at p. 20, the criteria for admissibility of

an expert opinion are set out as: (a) relevance; (b) necessity in assisting the trier of fact;

(c) the absence of any exclusionary rule; and (d) a properly qualified expert. These exist

in the instant case. In Delgamuukw v. British Columbia, [1989] 6 W.W.R. 308 (B.C.S.C.)

at p. 317 McEachern C.J. spoke about historians in particular and said this.

I still hold the views I previously expressed with

respect to general history, that is to say opinion evidence

may be given about topics of common or general knowledge,

but conclusions based upon inferences drawn from unproven

- 35 -

facts, and therefore subject to revision, and not admissible on

any other ground, belong not to the courtroom, but rather to

the historical community.

The course of this trial, however, demonstrates that

where historical facts are clearly in issue, of which Indian

land claims are an example (see Kruger v. R., [1978] 1

S.C.R. 104, [1977] 4 W.W.R. 300, 34 C.C.C. (2d) 377, 75

D.L.R. (3d) 434, 14 N.R. 495), it becomes necessary to

recognize that a general rule such as the one I have just

stated may not be sufficiently comprehensive, particularly

where there is an admissible written historical record. While

new facts may be discovered, we are only concerned in this

litigation with a proper understanding of the material which

has been admitted into evidence.

. . .

It is neither sensible nor possible to prove every fact

individually and separately from other related

contemporaneous or serial events. I still have the view that,

for the purposes of litigation, historians cannot usefully

pronounce on matters of broad inference which may be open

to serious disagreement or to subsequent revision. But I

think they can give much useful evidence into which some

opinions and inferences will be interwoven with references

to admissible documentary declarations. Such opinions will

be most useful, if not invaluable, in placing historical events

or occurrences in context, and in explaining how some of

these matters relate or do not relate to others.

I agree with Mr. Willms, however, and I do not

understand Mr. Adams to disagree, that experts cannot usurp

the function of the court in construing written material.

What a document says is for the court, but in this process the

court not only needs but urgently requires the assistance of

someone who understands the context in which the

document was created.

- 36 -

It is accordingly my judgment that qualified experts

may give many useful opinions, based upon inferences from

the documents about recorded facts of history in order to

explain matters in issue, but they may not, in my view, either

construe a written document which is the province of the

court, or generalize upon the broad sweep of history which is

so often subject to learned disagreement and revision.

I have also considered the remarks of Mr. Justice Binnie in R. v. Marshall, supra, along

with several articles including: “Snow Houses Leave No Ruins”: Unique Evidence Issues

in Aboriginal and Treaty Rights Cases by Brian J. Gover and Mary Locke Macaulay,

(1996) 60(1) Sask. L.R. 47; Litigating Native Claims by William B. Henderson, (1985)

19 L.S.U.C. Gazette 174; and Evidentiary Problems In Aboriginal Title Cases by William

B. Henderson, (1991), Spec. List. L.S.U.C. 165.

[67]

I now confirm that the testimony of the various expert witnesses was

admissible and I have taken it into my deliberations. While they did not agree about

everything, there was considerable consensus. In any event, I came to the conclusion that

without exception they were objective and forthright in any opinion which was given.

(3) The Reserve Land Clause - The Problem

[68]

This case is largely about what was intended by the following provision

contained in Treaty No. 6 and again reproduced here for ease of reference.

And Her Majesty the Queen hereby agrees and

undertakes to lay aside reserves for farming lands, due

- 37 -

respect being had to lands at present cultivated by the said

Indians, and other reserves for the benefit of the said Indians,

to be administered and dealt with for them by Her Majesty’s

Government of the Dominion of Canada, provided 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, in manner following, that is to say :—

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 ;

The benefit conferred by this provision flows to the Lac La Ronge Indian Band as the

successor to the James Roberts Band which entered into the Adhesion Agreement in

1889. The Lac La Ronge Indian Band claims that it has not yet been allotted all of the

land to which it is entitled under the Treaty agreement. Canada and Saskatchewan say it

is otherwise and submit that the land already set aside was sufficient to extinguish the

entitlement. The differing positions are the result of different readings of the Reserve

Land clause.

[69]

The problem is easy to state. The clause stipulates that the reserves “. . .

shall not exceed in all one square mile for each family of five. . . .” The equivalent is 128

acres per person. What is not stated is the time when you count the persons in order to

calculate the quantum of land which will fulfill the entitlement. The plaintiffs submit you

take the population of a band at the time the land is last surveyed and/or set apart. The

defendants submit you take the population of a band at the time the land was first

surveyed and set apart. The first is commonly referred to as the “current population

formula” and the second as the “first survey formula”.

- 38 -

[70]

A cursory reading of the above would suggest the two formulas are the

same and in many instances they have produced an identical result. If land was surveyed

for a band and sufficient land was set aside to provide 128 acres for every member of the

band alive at that time, then the full entitlement was provided. In that instance the current

population and the population at first survey would have been the same.

[71]

The situation is different where you have a “multiple survey band”. This

occurs where there has been more than one survey and allotment of land, but the band has

not received its full entitlement. In such a case, the plaintiffs submit that the population

to be used is that which exists at the time of the latest allotment. If the population has

increased then the entitlement increases. The defendants submit that the population to be

used is that which existed at the time of the initial or first survey. This method brings

about an entitlement which is fixed once and for all.

[72]

A simple example will help to illustrate the difference. In 1900 a band has

a population of 100 persons. In that year a survey is done and 12,800 acres are set aside.

That would fully satisfy the entitlement and this would be so regardless of which formula

was applied. However, let us suppose that in 1900 only 10,000 acres were set aside,

leaving a short fall of 2,800 acres. Then in 1905 it is decided to fulfill the band’s

entitlement and then the band’s population is 110 persons. Using the current population

formula, the remaining entitlement would be 4080 acres (110 x 128 - 10,000). The

entitlement grew with the population. Using the first survey formula, the remaining

entitlement would be 2,800 acres (100 x 128 - 10,000). Here there is no growth in the

entitlement.

[73]

The Lac La Ronge Indian Band is a multiple survey band. On several

occasions land was surveyed and set aside, but certainly at the outset the land allotted did

- 39 -

not fully satisfy the band’s entitlement. More recent allotments may have done so.

Depending on which formula is used, the Lac La Ronge Indian Band has a large

outstanding entitlement or it has been allotted land which greatly exceeds its entitlement.

That is the matter to be addressed and determined and any determination is dependant

upon how the Reserve Land clause is interpreted.

[74]

Within Treaty No. 6 and in particular within the Reserve Land clause there

is no express assertion as to when the population of a band is to be counted. On this point

there is total silence. To my mind the clause is clearly ambiguous and one may then look

to outside sources in an attempt to ascertain what was intended. This extrinsic evidence

will include oral history, what was said at the time as disclosed in writings and the

subsequent conduct in carrying out the terms of the treaty. Another source is what was

done in respect to other treaties.

(4) Provision for Reserve Lands In Other Treaties

[75]

Treaty No. 6 was not negotiated and signed in a vacuum or in isolation. It

was a part of an ongoing process whereby the Crown acquired aboriginal title to land and

in return granted benefits, including Reserve Lands. Many of the terms in the treaties

have similarities, but there are also differences. Despite the latter there is a certain

continuity throughout and this is so in respect to the provision of Reserve Lands. With

this in mind, I now outline what the series of numbered treaties provided as to reserve

lands. As I proceed I will also have reference to the writings of Lieutenant-Governor

Alexander Morris in his book entitled The Treaties of Canada With the Indians of

Manitoba and the North-West Territories. I consider this to be appropriate as it has been

accepted on other occasions as an authoritative work in the area. See R. v. Horse, supra.

- 40 -

[76]

I begin with the two Robinson Treaties which were signed on September 7,

1850, and September 9, 1850. They set the pattern of what was to come. At p. 16 Morris

says that the Robinson Treaties “. . . were the forerunners of the future treaties, and

shaped their course. . . .” Those two treaties provided for the creation of Reserves for

Indians. However, unlike Treaty No. 6, those treaties specified the size and very location

of the Reserve Lands and the descriptions were set out in detail in schedules to the

respective treaties. In the first treaty there were three Reservations described and in the

second there were seventeen. Thus, there could be no confusion or uncertainty about

what lands were reserved to the Indians.

[77]

After that came the numbered treaties. The first two were negotiated by

Mr. Wemyss M. Simpson, Indian Commissioner, together with Mr. Adams G. Archibald,

Lieutenant-Governor of Manitoba. Included in their instructions were copies of the

Robinson Treaties and they were obviously intended to serve as guides in the negotiations

with the Indians. In a letter dated July 22, 1871, as reproduced by Morris at p. 32,

Lieutenant-Governor Archibald speaks as follows about his upcoming task.

I look upon the proceedings, we are now initiating, as

important in their bearing upon our relations to the Indians

of the whole continent. In fact, the terms we now agree

upon will probably shape the arrangements we shall have to

make with all the Indians between the Red River and the

Rocky Mountains. It will therefore be well to neglect

nothing that is within our power to enable us to start fairly

with the negotiations.

. . .

I fear we shall have to incur a considerable

expenditure for presents of food, etc., during the

negotiations; but any cost for that purpose I shall deem a

- 41 -

matter of minor consequence. The real burden to be

considered is that which has to be borne in each recurring

year.

I doubt if it will be found practicable to make

arrangements upon so favorable a basis as that prescribed by

His Excellency the Governor-General, as the maximum to be

allowed, in case of a treaty with the Lake Indians.

Nor indeed would it be right, if we look to what we

receive, to measure the benefits we derive from coming into

possession of the magnificent territory we are appropriating

here, by what would be fair to allow for the rocks and

swamps and muskegs of the lake country east of this

Province.

[78]

On July 27, 1871, Lieutenant-Governor Archibald first met with the

Indians, of which a thousand were assembled, and at that time he opened the proceedings

with an address which included the following as reported by Morris commencing at p. 28.

The remarks are lengthy, but I reproduce them because they say much about the attitude

of generosity on the part of the Crown.

“Your Great Mother wishes the good of all races

under her sway. She wishes her red children to be happy and

contented. She wishes them to live in comfort. She would

like them to adopt the habits of the whites, to till land and

raise food, and store it up against a time of want. She thinks

this would be the best thing for her red children to do, that it

would make them safer from famine and distress, and make

their homes more comfortable.

“But the Queen, though she may think it good for you

to adopt civilized habits, has no idea of compelling you to do

so. This she leaves to your choice, and you need not live

like the white man unless you can be persuaded to do so of

- 42 -

your own free will. Many of you, however, are already

doing this.

“I drove yesterday through the village below this

Fort. There I saw many well-built houses, and many well-

tilled fields with wheat and barley and potatoes growing, and

giving promise of plenty for the winter to come. The people

who till these fields and live in these houses are men of your

own race, and they shew that you can live and prosper and

provide like the white man.

“What I saw in my drive is enough to prove that even

if there was not a buffalo or a fur-bearing animal in the

country, you could live and be surrounded with comfort by

what you can raise from the soil.

“Your Great Mother, therefore, will lay aside for you

‘lots’ of land to be used by you and your children forever.

She will not allow the white man to intrude upon these lots.

She will make rules to keep them for you, so that as long as

the sun shall shine, there shall be no Indian who has not a

place that he can call his home, where he can go and pitch

his camp, or if he chooses, build his house and till his land.

“These reserves will be large enough, but you must

not expect them to be larger than will be enough to give a

farm to each family, where farms shall be required. They

will enable you to earn a living should the chase fail, and

should you choose to get your living by tilling, you must not

expect to have included in your reserve more of hay grounds

than will be reasonably sufficient for your purposes in case

you adopt the habits of farmers. The old settlers and the

settlers that are coming in, must be dealt with on the

principles of fairness and justice as well as yourselves. Your

Great Mother knows no difference between any of her

people. Another thing I want you to think over is this: in

laying aside these reserves, and in everything else that the

Queen shall do for you, you must understand that she can do

for you no more than she has done for her red children in the

East. If she were to do more for you that would be unjust for

- 43 -

them. She will not do less for you because you are all her

children alike, and she must treat you all alike.

“When you have made your treaty you will still be

free to hunt over much of the land included in the treaty.

Much of it is rocky and unfit for cultivation, much of it that

is wooded is beyond the places where the white man will

require to go, at all events for some time to come. Till these

lands are needed for use you will be free to hunt over them,

and make all the use of them which you have made in the

past. But when lands are needed to be tilled or occupied,

you must not go on them any more. There will still be plenty

of land that is neither tilled nor occupied where you can go

and roam and hunt as you have always done, and, if you

wish to farm, you will go to your own reserve where you

will find a place ready for you to live on and cultivate.

[79]

On August 3, 1871, Treaty No. 1 was executed. It provided that 160 acres

of land would be laid aside and reserved for each family of five, or in that proportion for

larger or smaller families. It also stated the location of the various reserves. In contrast

to the Robinson Treaties, the amount of land was not quantified, but as in those treaties,

the place was specified. As well there is this provision in respect to a census.

Her Majesty’s Commissioner shall, as soon as

possible after the execution of this treaty, cause to be taken

an accurate census of all the Indians inhabiting the district

above described, distributing them in families, and shall in

every year ensuing the date hereof, at some period during the

month of July in each year, to be duly notified to the Indians

and at or near their respective reserves, pay to each Indian

family of five persons the sum of fifteen dollars Canadian

currency, or in like proportion for a larger or smaller family,

such payment to be made in such articles as the Indians shall

require of blankets, clothing, prints (assorted colours), twine

or traps, at the current cost price in Montreal, or otherwise, if

- 44 -

Her Majesty shall deem the same desirable in the interests of

Her Indian people, in cash.

In the Robinson Treaties there is no equivalent clause, presumably because payments

were made to chiefs in a lump sum and not on the basis of population.

[80]

A short time later, on August 21, 1871, Treaty No. 2 was executed. As

stated by Mr. Wemyss M. Simpson, Indian Commissioner, in his report of November 3,

1871, the Indians who signed this treaty:

“. . .had no special demands to make, but having a

knowledge of the former treaty, desired to be dealt with in

the same manner and on the same terms as those adopted by

the Indians of the Province of Manitoba.”

[Morris - p. 41]

Negotiations were brief and the terms agreed upon were the same as in the treaty

executed eighteen days earlier. In that same report Mr. Simpson said this:

“. . .Although many years will elapse before they can be

regarded as a settled population - settled in the sense of

following agricultural pursuits - the Indians have already

shown a disposition to provide against the vicissitudes of the

chase by cultivating small patches of corn and potatoes. . . .”

[Morris - p. 42]

[81]

Treaty No. 3 was entered into on November 3, 1873. On that occasion

some differences appeared. First, the allotment of reserve land was increased to 640

acres for each family of five. Secondly, the location of the reserve lands was not

- 45 -

specified. Thirdly, it was provided that the lands would be selected and set aside by the

officers of the Government in conference with the Indians. Fourthly, the selections would

be made in the next summer or “. . . as soon thereafter as may be found practicable. . . .”

Thus the provisions respecting Reserve Lands had moved from being very fixed and

precise in the Robinson Treaties to simply giving an assurance that Reserve Lands would

be available and providing a means to ascertain in time the particular lands. This new

approach did not reflect any change in attitude about the Indians’ entitlement to land.

Rather it flowed from the uncertainty of the Indians as to where they wished to locate and

probably also when they wished to take up their land.

[82]

This treaty, as well as the next three, which includes Treaty No. 6, were

negotiated by Lieutenant-Governor Morris and thus his writings are those of a person

who actually participated in the process which culminated in several treaties. He

described Treaty No. 3 as one of great importance.

. . .This treaty was one of great importance, as it not only

tranquilized the large Indian population affected by it, but

eventually shaped the terms of all the treaties, four, five, six

and seven, which have since been made with the Indians of

the North-West Territories--who speedily became apprised

of the concessions which had been granted to the Ojibbeway

nation. . . .

[Morris - p. 45]

In his official dispatch dated October 14, 1873, he said this about the provision in the

treaty for setting aside Reserve Land:

. . .I have further to add, that it was found impossible, owing

to the extent of the country treated for, and the want of

- 46 -

knowledge of the circumstances of each band, to define the

reserves to be granted to the Indians. It was therefore agreed

that the reserves should be hereafter selected by officers of

the Government, who should confer with the several bands,

and pay due respect to lands actually cultivated by them. A

provision was also introduced to the effect that any of the

reserves, or any interest in them, might hereafter be sold for

the benefit of the Indians by the Government with their

consent. I would suggest that instructions should be given to

Mr. Dawson to select the reserves with all convenient speed ;

and, to prevent complication, I would further suggest that no

patents should be issued, or licenses granted, for mineral or

timber lands, or other lands, until the question of the reserves

has been first adjusted.

[Morris - p. 52]

[83]

Treaty No. 4, which encompassed some 75,000 square miles in southern

Saskatchewan, was executed on September 15, 1874. The provision about Reserve Lands

is the same as in Treaty No. 3. In discussing the negotiations of Treaty No. 4, Lieutenant-

Governor Morris said the following to those gathered. The remarks clearly indicate the

attitude of flexibility held by the Crown.

. . .And now I will tell you our message. The Queen knows

that her red children often find it hard to live. She knows

that her red children, their wives and children, are often

hungry, and that the buffalo will not last for ever and she

desires to do something for them. More than a hundred

years ago, the Queen’s father said to the red men living in

Quebec and Ontario, I will give you land and cattle and set

apart Reserves for you, and will teach you. What has been

the result? There the red men are happy ; instead of getting

fewer in number by sickness they are growing in number ;

their children have plenty. The Queen wishes you to enjoy

the same blessings, and so I am here to tell you all the

Queen’s mind, but recollect this, the Queen’s High

- 47 -

Councillor here from Ottawa, and I, her Governor, are not

traders ; we do not come here in the spirit of traders ; we

come here to tell you openly, without hiding anything, just

what the Queen will do for you, just what she thinks is good

for you, and I want you to look me in the face, eye to eye,

and open your hearts to me as children would to a father, as

children ought to do to a father, and as you ought to the

servants of the great mother of us all. I told my friends

yesterday that things changed here, that we are here to-day

and that in a few years it may be we will not be here, but

after us will come our children. The Queen thinks of the

children yet unborn. I know that there are some red men as

well as white men who think only of to-day and never think

of to-morrow. The Queen has to think of what will come

long after to-day. Therefore, the promises we have to make

to you are not for to-day only but for to-morrow, not only for

you but for your children born and unborn, and the promises

we make will be carried out as long as the sun shines above

and the water flows in the ocean. When you are ready to

plant seed the Queen’s men will lay off Reserves so as to

give a square mile to every family of five persons, and on

commencing to farm the Queen will give to every family

cultivating the soil two hoes, one spade, one scythe for

cutting the grain, one axe and plough, enough of seed wheat,

barley, oats and potatoes to plant the land they get ready.

The Queen wishes her red children to learn the cunning of

the white man and when they are ready for it she will send

schoolmasters on every Reserve and pay them. We have

come through the country for many days and we have seen

hills and but little wood and in many places little water, and

it may be a long time before there are many white men

settled upon this land, and you will have the right of hunting

and fishing just as you have now until the land is actually

taken up. (His Honor repeated the offers which had been

given to the Saulteaux on the previous day.) I think I have

told you all that the Queen is willing to do for you. . . .

[Morris - p. 95]

- 48 -

[84]

Treaty No. 5 was executed on September 20 and September 24, 1875, and

embraced approximately 100,000 square miles. Several things were changed in this

treaty. First, the allotment of reserve land was reduced to 160 acres for each family of

five or in proportion thereto. Secondly, certain specific locations were set out for certain

bands. The areas included the Beren River region, the vicinity of Fisher River and Poplar

River, and certain lands in the vicinity of Norway House and Otter Island. These

provisions are reminiscent of Treaties No. 1 and No. 2. However, there was no specified

location of Reserve Lands for several Indian Bands which was the approach in Treaties

No. 3 and No. 4. A third variation is that within the treaty it was expressly stated that the

Reserve Lands at the Beren River region would be set aside within two years and at

Fisher River within “three years”. There was no like stipulation in respect to the other

Indian Bands.

[85]

That brings me to Treaty No. 6 which was executed on August 23 and

August 28, 1876, and which underlies this action. The Reserve Land clause has already

been quoted and there is no need to do so again. What is worthy of mention is that a

portion of the treaty appears to have been written out in advance of negotiations and other

portions written in after completion of negotiations (Ex. P-60). Thus the reference to a

family of five was written into the document in advance while the quantum of land for

such a family was inserted at a later time as was the process for determining the actual

Reserve Lands. This approach strongly suggests that Lieutenant-Governor Morris had

certain flexibility in respect to the specifics of Reserve Land. He chose not to follow the

earlier practise of expressly describing the Reserve Lands, as in Treaties No. 1, No. 2 and

No. 5, or by providing that government officers would set aside reserve lands, as in

Treaties No. 3 and No. 4. Instead he chose to provide that the reserve lands would be set

aside by a “suitable person”. In short, while there was an ongoing process in treaty

negotiations, there were variations within the process.

- 49 -

[86]

During the course of the negotiations, Lieutenant-Governor Morris

explained to the Indians that they did not have to abandon their way of life immediately,

but that they should not delay the selection of land for too long.

At this juncture, a messenger arrived from the Duck

Lake Indians, asking that I should tell them the terms of the

Treaty. I replied that if the Chiefs and people had joined the

others they would have heard what I had to say, and that I

would not tell the terms in advance, but that the messenger

could remain and hear what I had to say. He expressed

himself satisfied and took his seat with the others. I then

fully explained to them the proposals I had to make, that we

did not wish to interfere with their present mode of living,

but would assign them reserves and assist them as was being

done elsewhere, in commencing to farm, and that what was

done would hold good for those that were away.

[Morris - p. 184]

“First I wish to talk to you about what I regard as

something affecting the lives of yourselves and the lives of

your children. Often when I thought of the future of the

Indian my heart was sad within me. I saw that the large

game was getting scarcer and scarcer, and I feared that the

Indians would melt away like snow in spring before the sun.

It was my duty as Governor to think of them, and I

wondered if the Indians of the plains and lakes could not do

as their brother where I came from did. And now, when I

think of it, I see a bright sky before me. I have been nearly

four years working among my Indian brothers, and I am glad

indeed to find that many of them are seeking to have homes

of their own, having gardens and sending their children to

school.

- 50 -

“Last spring I went to see some of the Chippewas,

this year I went again and I was glad to see houses built,

gardens planted and wood cut for more houses. Understand

me, I do not want to interfere with your hunting and fishing.

I want you to pursue it through the country, as you have

heretofore done ; but I would like your children to be able to

find food for themselves and their children that come after

them. Sometimes when you go to hunt you can leave your

wives and children at home to take care of your gardens.

“I am glad to know that some of you have already

begun to build and to plant ; and I would like on behalf of

the Queen to give each band that desires it a home of their

own ; I want to act in this matter while it is time. The

country is wide and you are scattered, other people will

come in. Now unless the places where you would like to

live are secured soon there might be difficulty. The white

man might come and settle on the very place where you

would like to be. Now what I and my brother

Commissioners would like to do is this : we wish to give

each band who will accept of it a place where they may live;

we wish to give you as much or more land than you need ;

we wish to send a man that surveys the land to mark it off, so

you will know it is your own, and no one will interfere with

you. What I would propose to do is what we have done in

other places. For every family of five a reserve to

themselves of one square mile. Then, as you may not all

have made up your minds where you would like to live, I

will tell you how that will be arranged : we would do as has

been done with happiest results at the North-West Angle.

We would send next year a surveyor to agree with you as to

the place you would like.

“There is one thing I would say about the reserves.

The land I name is much more than you will ever be able to

farm, and it may be that you would like to do as your

brothers where I came from did.

“They, when they found they had too much land,

asked the Queen to it sell [sic] for them ; they kept as much

- 51 -

as they could want, and the price for which the remainder

was sold was put away to increase for them, and many bands

now have a yearly income from the land.

“But understand me, once the reserve is set aside, it

could not be sold unless with the consent of the Queen and

the Indians ; as long as the Indians wish, it will stand there

for their good ; no one can take their homes.

[Morris - p. 204-205]

[87]

One Peter Erasmus was an interpreter at the negotiations and also attended

at Indian councils. He described the negotiations surrounding Treaty No. 6 in Chapter 14

of his autobiography, Buffalo Days and Nights, as told to Henry Thompson (Glenbow-

Alberta Institute). The introduction and Chapter 14 are Exhibit D-4. At pp. 262 - 263

there is this account of a conversation about land allotment in which mention is made of

living persons. Erasmus made an error as to the acreage, but I attach no importance to

that.

William Bull was usually the best of companions but

for the first few days I thought he was very quiet and

somewhat despondent. Actually he seemed to be occupied

in some deep thought, so I finally asked him what was

troubling him.

“The chief has asked for a great stretch of land about

which he now speaks as if it had already been promised to

him. I listened carefully to your interpretations of the

Governor’s answer to his request. The Governor stated that

he had no authority to grant any such request and merely

stated that as James Seenum was a chief and had asked, he

would pass the request on to his superiors. Is that right,

Peter?”

- 52 -

“Yes, it certainly is. To have an unrestricted amount

of land for one chief would have broken the terms of the

treaty to all those others who had already signed. Surely

Chief Seenum does not think that he has been promised the

land from the Dog Rump Creek as far west as the Whitemud

River, with the Beaver River at the north and the

Saskatchewan River as its southern boundary?”

“Yes! That is exactly what he told me only the last

night before the camp broke up. I tried to explain to him that

this was not true but he would have none of my explanation,

and we had some words between us. That is why I asked to

go along with you. It would be a good thing if you would

speak to him about the real truth as spoken by the

Governor.”

“Well of course I will talk to him, but if he does not

listen to the words of his own councillor, how will he listen

to me? If he is not satisfied with the terms of the treaty why

did he sign? It seemed to me that he understood everything

that I spoke about the night of the first council of the chiefs.

I explained to them that each man, woman and child then

living would be apportioned eighty acres each, according to

the number of Indians then belonging to his tribe.”

“I and the others all understood exactly as you now

explain. Further than that, the Governor also mentioned the

amount of land each Indian would be entitled to when they

picked their reserves next year. For myself, I can only

occupy a small portion of the land my family would be

entitled to, but I understand that all the land, regardless of

the amount each family uses, will belong to the band and can

be used by our children’s children.”

[Emphasis added]

[88]

Treaty No. 7 is the last one about which Lieutenant-Governor Morris wrote.

It was negotiated by David Laird, Lieutenant-Governor of the North West Territories and

- 53 -

Lieutenant Colonel James F. McLeod, Commissioner of the North West Mounted Police

and signed on September 22, 1877, with a supplementary treaty being signed on

December 4 of the same year.

[89]

This treaty incorporated terms which were contained in earlier treaties,

although it was not identical to any one treaty. Thus, the land to be set aside was one

square mile for each family of five, but the locations of the Reserve Lands were set out.

However, no mention is made of what process will be followed in assigning the reserves

or that a census will be taken. Lieutenant-Governor Morris describes the similarity of this

treaty in these words.

. . .The terms of the treaty, were substantially the same as

those contained in the North-West Angle [No. 3] and

Qu’Appelle treaties [No. 4], except that as some of the bands

were disposed to engage in pastoral pursuits, it was arranged

to give them cattle instead of agricultural implements. . . .

[Morris - p. 250]

He later quotes these remarks of Lieutenant-Governor Laird.

“Many years ago our Great Mother made a treaty with

the Indians far away by the great waters in the east. A few

years ago she made a treaty with those beyond the

Touchwood Hills and the Woody Mountains. Last year a

treaty was made with the Crees along the Saskatchewan, and

now the Queen has sent Col. McLeod and myself to ask you

to make a treaty. But in a very few years the buffalo will

probably be all destroyed, and for this reason the Queen

wishes to help you to live in the future in some other way.

She wishes you to allow her white children to come and live

on your land and raise cattle, and should you agree to this

- 54 -

she will assist you to raise cattle and grain, and thus give you

the means of living when the buffalo are no more. She will

also pay you and your children money every year, which you

can spend as you please. By being paid in money you

cannot be cheated, as with it you can buy what you may

think proper.

“The Queen wishes us to offer you the same as was

accepted by the Crees. I do not mean exactly the same

terms, but equivalent terms, that will cost the Queen the

same amount of money. Some of the other Indians wanted

farming implements, but these you do not require, as your

lands are more adapted to raising cattle, and cattle, perhaps,

would be better for you. The Commissioners will give you

your choice, whether cattle or farming implements. I have

already said we will give you money, I will now tell you

how much. If you sign the treaty every man, woman and

child will get twelve dollars each ; the money will be paid to

the head of each family for himself, women and children ;

every year, for ever, you, your women and your children will

get five dollars each. This year Chiefs and Councillors will

be paid a larger sum than this ; Chiefs will get a suit of

clothes, a silver medal, and flag, and every third year will get

another suit. A reserve of land will be set apart for

yourselves and your cattle, upon which none others will be

permitted to encroach ; for every five persons one square

mile will be allotted on this reserve, on which they can cut

the trees and brush for firewood and other purposes. The

Queen’s officers will permit no white man or Half-breed to

build or cut the timber on your reserves. If required roads

will be cut through them. Cattle will be given to you, and

potatoes, the same as are grown at Fort McLeod. The

Commissioners would strongly advise the Indians to take

cattle, as you understand cattle better than you will farming

for some time, at least as long as you continue to move about

in lodges.

[Morris - p. 268]

- 55 -

[90]

While adhesions were executed no new treaties were negotiated until June

21, 1899, when Treaty No. 8 was signed. As in others, it provided one square mile for a

family of five, but unlike any other it also provided for “. . .land in severalty to the extent

of 160 acres to each Indian. . . .” It also stated, as in Treaty No. 6, that a suitable person

would be sent to set aside Reserve Lands. No mention is made of a census nor of when

the Reserves would be set aside. The following appears in the Commissioners’ report

dated September 22, 1899.

We assured them that the treaty would not lead to any

forced interference with their mode of life, that it did not

open the way to the imposition of any tax, and that there was

no fear of enforced military service. We showed them that,

whether treaty was made or not, they were subject to the law,

bound to obey it, and liable to punishment for any

infringements of it. We pointed out that the law was

designed for the protection of all, and must be respected by

all the inhabitants of the country, irrespective of colour or

origin; and that, in requiring them to live at peace with white

men who came into the country, and not to molest them in

person or in property, it only required them to do what white

men were required to do as to the Indians.

. . .

In addition to the annuity, which we found it

necessary to fix at the figures of Treaty Six, which covers

adjacent territory, the treaty stipulates that assistance in the

form of seed and implements and cattle will be given to

those of the Indians who may take to farming, in the way of

cattle and mowers to those who may devote themselves to

cattle-raising, and that ammunition and twine will be given

to those who continue to fish and hunt. The assistance in

farming and ranching is only to be given when the Indians

actually take to these pursuits, and it is not likely that for

many years there will be a call for any considerable

expenditure under these heads. . . .

- 56 -

The Indians are given the option of taking reserves or

land in severalty. As the extent of the country treated for

made it impossible to define reserves or holdings, and as the

Indians were not prepared to make selections, we confined

ourselves to an undertaking to have reserves and holdings set

apart in the future, and the Indians were satisfied with the

promise that this would be done when required. There is no

immediate necessity for the general laying out of reserves or

the allotting of land. It will be quite time enough to do this

as advancing settlement makes necessary the surveying of

the land. Indeed, the Indians were generally averse to being

placed on reserves. It would have been impossible to have

made a treaty if we had not assured them that there was no

intention of confining them to reserves. We had to very

clearly explain to them that the provision for reserves and

allotments of land were made for their protection, and to

secure to them in perpetuity a fair portion of the land ceded,

in the event of settlement advancing.

[Exhibit P-87 - document 24A;

pp. 132-133]

The reference to Treaty No. 6 indicates a knowledge on the part of both sides as to what

had been negotiated earlier and a willingness to achieve some consistency.

[91]

Treaty No. 9 was executed over a number of days in the years 1905 and

1906 and pursuant to it the Indians ceded some 90,000 square miles located in Ontario.

Again the Reserve Land to be set aside was one square mile for a family of five, but the

size and location of the Reserves was set out in a schedule to the Treaty. This is a return

to Treaties No. 1 and No. 2 and a movement from the approach adopted in the other

numbered treaties. A likely explanation is that non-aboriginal society was quickly

advancing into the area.

- 57 -

[92]

Treaty No. 10 related to some 85,000 acres in northern Saskatchewan and

Alberta and was executed over several days in 1906 and 1907. Again the Reserve

allotment was to be one square mile for a family of five although severalty was possible

to the extent of 160 acres; a suitable person was to set apart the Reserves; and there is no

mention of a time frame to set aside the Reserves. In his report of January 18, 1907, Mr.

J.A.J. McKenna, Commissioner, wrote as follows:

It appeared for a time as if there would be some

considerable difficulty in effecting a settlement on the lines

of the treaty, for it was evident from the trend of the talk of

the leaders among the Indians that there had been at work an

influence which tended to make them regard the treaty as a

means of enslaving them. I was able to disabuse their minds

of this absurd notion and to make it clear that the

government’s object was simply to do for them what had

been done for neighbouring Indians when the progress of

trade or settlement began to interfere with the untrammelled

exercise of their aboriginal privileges as hunters.

[Exhibit P-87 - document 28A; p. 190]

. . .

In the main, the demand will be for ammunition and

twine, as the great majority of the Indians will continue to

hunt and fish for a livelihood. It does not appear likely that

the conditions of that part of Saskatchewan covered by the

treaty will be for many years so changed as to affect hunting

and trapping, and it is expected, therefore, that the great

majority of the Indians will continue in these pursuits as a

means of subsistence.

The Indians were given the option of taking reserves

or land in severalty, when they felt the need of having land

set apart for them. I made it clear that the government had

no desire to interfere with their mode of life or to restrict

- 58 -

them to reserves and that it undertook to have land in the

proportions stated in the treaty set apart for them, when

conditions interfered with their mode of living and it became

necessary to secure them possession of land.

[Exhibit P-87 - document 28A; p. 193]

Even after the expiration of more than twenty years following adhesion to Treaty No. 6,

the same opinions and assurances were being expressed and given.

[93]

Treaty No. 11 was signed on June 27, 1921, some 45 years after Treaty No.

6 and pursuant to it the Indians ceded title to some 372,000 square miles. The provision

dealing with Reserve Lands reads in its entirety 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 smaller families;

There is absolutely no indication as to how or when it would be done. In fact, no

Reserves were set aside for many years.

[94]

That concludes my review of what was actually stated in the treaties about

the creation of Reserve Lands for Indians and the comments of the Honourable Alexander

Morris about the negotiation of those treaties. I turn now to the actual creation of the

Reserves with the purpose of ascertaining whether subsequent conduct sheds any light on

the intention of the parties to treaty.

(5) Subsequent Conduct In Calculating Reserve Lands

- 59 -

[95]

I now embark upon a review of what transpired in respect to the setting

aside of some Reserve Lands and the creation of Indian Reserves. In the course of

compiling what follows I read much in many documents. It is impossible to recount it all

and I therefore will focus on what may be instructive as to how the quantum of land was

calculated.

[96

My beginning is not in Saskatchewan with Treaty No. 6, but rather in the

Province of British Columbia. I do so because counsel for the plaintiffs suggest that it

enables me to obtain some insight into the thinking of a government official about the

quantum of land in Indian Reserves. The Honourable R.W. Scott played a role in respect

to treaties and it is useful to know what his thoughts were on November 5, 1875, when

seeking a settlement of an Indian land claim in British Columbia. Treaty No. 6 was less

than a year away. In a memorandum of that date, as acting Minister of the Interior, he

wrote the following.

. . .

In lieu therefore of the propositions submitted by Mr.

Walkem and sanctioned by the Order in Council of the

British Columbia Government, the undersigned would

respectfully propose, the following:--

1.

That with a view to the speedy and final

adjustment of the Indian Reserve question in British

Columbia on a satisfactory basis, the whole matter be

referred to three Commissioners, one to be appointed by the

Government of the Dominion, one by the Government of

British Columbia, and the third to be named by the

Dominion and the Local Governments jointly.

- 60 -

2.

That the said Commissioners shall as soon as

practicable after their appointment meet at Victoria and

make arrangements to visit, with all convenient speed, in

such order as may be found desirable, each Indian Nation

(meaning by Nation all Indian tribes speaking the same

language) in British Columbia and after full enquiry on the

spot, into all matters affecting the question, to fix and

determine for each Nation separately the number, extent and

locality of the Reserve or Reserves to be allowed to it.

3.

That in determining the extent of the Reserves

to be granted to the Indians of British Columbia no basis of

acreage be fixed for the Indians of that Province as a whole,

but that each Nation of Indians of the same language be dealt

with separately.

4.

That the Commissioners shall be guided

generally by the spirit of the terms of Union between the

Dominion and the Local Governments, which contemplates a

“liberal policy” being pursued towards the Indians; and in

the case of each particular Nation regard shall be had to the

habits, wants and pursuits of such Nation, to the amount of

territory available in the region occupied by them, and to the

claims of the white settlers.

5.

That each Reserve shall be held in trust for the

use and benefit of the Nation of Indians to which it has been

allotted, and in the event of any material increase or decrease

hereafter of the members of a Nation occupying a Reserve,

such Reserve shall be enlarged or diminished as the case

may be, so that it shall bear a fair proportion to the Members

of the Nation occupying it. The extra land required for any

Reserve shall be allotted from Crown Lands, and any land

taken off a Reserve shall revert to the Province.

6.

That so soon as the Reserve or Reserves for

any Indian Nation shall have been fixed and determined by

the Commissioners as aforesaid, the existing Reserves

belonging to such Nation, so far as they are not in whole or

in part included in such new Reserve or Reserves so

- 61 -

determined by the Commissioners, shall be surrendered by

the Dominion to the Local Government so soon as may be

convenient, on the latter paying to the former, for the benefit

of the Indians such compensation for any clearings or

improvements made on any Reserve so surrendered by the

Dominion and accepted by the Province as may be thought

reasonable by the Commissioners aforesaid.

. . .

[Exhibit P-22; Tab 9]

[97]

I take the above into my deliberations while exercising caution. Mr. Scott

does anticipate that the size of a Reserve may increase or decrease in accordance with

existing population. It is suggested that this supports the plaintiffs’ position. While it is

something of an indication, I do not consider it to be as conclusive as the plaintiffs would

have it.

[98]

It must be remembered that the situation was different than on the Prairies.

In British Columbia there was a different regime and there clearly was recognition of a

need for flexibility and an acceptance of it. However, that must be taken within the

context of the negotiations which were about to begin there. It was anticipated that the

process would lead to the creation of Reserves of determined size. In fixing the size of

the reserve, the land was not to be calculated on the basis of acreage per person, but on a

liberal policy with regard “. . .to the habits, wants and pursuits of such nation, to the

amount of territory available in the region occupied by them, and to the claims of the

white settlers.” This is a very different approach from that taken in Treaty No. 6 and of

course Mr. Scott was aware of the different approaches taken in respect to Treaty No. 1

through Treaty No. 5. Accordingly, while Mr. Scott was amenable to Indian Reserves

increasing or decreasing in size in British Columbia, and while he may have held a like

- 62 -

opinion about Reserves elsewhere, I cannot be certain about the latter on the basis of what

is quoted from his memorandum.

[99]

I now turn to a review of land allotment for various Indian Reserves. I have

been referred to numerous instances and will briefly describe each, proceeding in a

chronological order.

[100]

(1) Pay-pas-tays. This was the first instance in the historical record before

me where steps were taken to set aside lands and it occurred in 1880. In fact, the effort

appeared to fail because of a dispute over the size of the Reserve. This is a portion of the

report of Mr. George A. Simpson, Indian Reserve Surveyor, dated December 1, 1880.

Shortly after my arrival at Edmonton, I was instructed

by the Indian Agent to survey a reserve for Chief Pay-pas-

tays (The Woodpecker), located opposite Fort Edmonton,

and two miles from the south side of the Saskatchewan. As

this would materially interfere with the “claims” of the

settlers, I prevailed on the chief to move two miles further

south, and commenced the survey on the 2nd of August. On

the 16th instant, the chief ordered my party to stop work,

giving as a reason that he was not satisfied with the area of

the reserve. . . .

. . .

The number given me as being paid in this band in

1879, was 241, and upon this basis I informed them that they

would get 48 square miles, but the number in the band at the

time of payment this year was only 189, and on this account

Mr. Wadsworth notified me to give them not more than 40

square miles, or the allowance for 200 souls. . . .

[Exhibit D-15 - Appendix 14, p. 40]

- 63 -

[101]

Counsel for the plaintiffs contends that this was an instance where the

allotment was based on current population. This is correct, but it also can be said that the

population used was that at the time of the first survey. What it does clearly show is that

the Department of Indian Affairs, which had come into existence in 1880, was prepared

to move from a higher to a lower population figure. I do not know what was the ultimate

disposition or if a Reserve was ultimately set aside.

[102]

(2) Cowessess. This band entered into Treaty No. 4 on September 15,

1874, and at the time had a population of 74 members. The pertinent statistical

information follows.

Date of first survey

Population

- 1880

- 502 persons

- 64,256 acres

- 40,320 acres

- 23,936 acres

- 1884

Entitlement

Set aside

Deficiency

Date of second survey

Population

- 367 persons

- 46,976 acres

- 9,600 acres

- 49,920 acres

Entitlement

Set aside (additional)

Total allotment

[Exhibit P-54, Tab 8]

Here the Department made the final allotment on the basis of the current population at the

time of the second survey and not that which existed at the time of the first survey.

- 64 -

[103]

(3) Red Gut Band. This band was a party to Treaty No. 3 and Kenneth

Tyler, called by the plaintiffs, suggests that current population was used in this instance.

However, his testimony was vague and lacked details and I therefore have placed no

reliance on it in respect to this Band.

[104]

(4) Thunderchild Band. What occurred in respect to this Band is obtained

from the testimony of Kenneth Tyler and Exhibit P-55, Tab 12. The man known as Chief

Thunderchild was originally a member of Little Black Bear’s Band who had entered into

Treaty No. 4. Thunderchild and a group of stragglers entered into Treaty No. 6 on

September 24, 1879, and at that time their number was 54 or 55. In 1881 a survey was

completed and 24 square miles (15,360 acres) were allotted. According to what is set out

in Exhibit P-54, in the thumbnail sketch, the population in 1881 was 66 persons which

means the allotment was excessive whether you take that date or the date of entering

Treaty.

[105]

In any event, in 1883 Thunderchild was joined by Napahas who had been a

headman in Thunder Companions Band which had signed Treaty No. 6 in 1876. It was

decided that they would remain together and in 1884 an additional 8.5 square miles (5440

acres) were surveyed as Indian Reserve No. 115A, Thunderchild’s original reserve being

Indian Reserve No. 115. As a result, the two bands which came to be known as the

Thunderchild Band, had a total of 32.5 square miles or 20,800 acres. Their combined

population appears to have been 160 persons. Mr. Tyler suggests this was an instance

when the Department acted on current population. In support of this he refers to a letter

dated February 18, 1884, in which the Acting Assistant Commissioner writes:

- 65 -

As the numbers of the bands now stand the Reserve

as surveyed would be about eight square miles too small but

the extra quantity of land required could easily be had

adjacent to it, if the Department deemed it expedient to have

it added on -

[106]

Mr. Tyler testified that if the 1880 or 1881 populations would have been

utilized, then the additional allotment should have been 13 square miles instead of 8.5

square miles. However, I do not know how or why he arrives at the population figures

that would suggest that conclusion. If it is somewhere in the evidence, I couldn’t find it.

[107]

What I do know is that in 1881 the Thunderchild population was

supposedly 65 persons, having increased from 54 persons in 1979. I do not know the

population of the Napahas group at any time. As a result, I do not know whether the

survey of 1884 related only to that group and the number of persons in it. If that were so,

it was the first survey for the Napahas group. In the end, I can draw little from what

transpired in respect to the Thunderchild Band. As best I can make out, account was

taken of the current population at the time of the first survey: - one for Thunderchild and

one for Napahas. By that I assume a survey was done for Thunderchild in 1881 and for

Napahas in 1884, although I cannot be sure of this. In the end, uncertainty as to what

transpired is what dominates here.

[108]

(5) Alexis Band. As described by Mr. Tyler, this was a Band located in

Alberta which had a reserve surveyed in 1880. The land allotment was based on a

population of 81 or 82 persons. However, it was known at the time that several persons

were away and therefore did not appear on the pay lists. In 1891 additional land was set

aside and at that time the allotment was based on the 1890 population of 219. This

obviously was an instance when current population was utilized, but it is not known

- 66 -

whether the increase was the result of natural growth in the population or the inclusion of

those who were absent in 1880. Thus, it is a somewhat ambiguous piece of evidence.

[109]

(6) Yellow Quill Band. This Band adhered to Treaty No. 4 on August 24,

1876, and at the time had a population of 158 persons. In 1881 a survey was done and

Reserves were established at Nut Lake and Fishing Lake. At the time the population was

293 persons which resulted in an entitlement to 37,504 acres. In fact, only 32,428.8 acres

were set aside leaving a shortfall of 5,072.2 acres.

[110]

A faction of the Band located at Kinistino, Saskatchewan, requested land

and a survey was conducted in 1899. At that time the population was 357 persons which

could justify an entitlement to 45,696 acres. Reserve Lands of 9,638.4 acres were set

aside bringing the total allotment to 42,067.2. This acreage exceeded what was warranted

based on population at time of first survey, but was less than the full entitlement based on

present population. See Exhibit P-55, Tab 9. A significant letter of September 6, 1898,

was written by Mr. A.E. Forget, Indian Commissioner, to the Secretary, Department of

Indian Affairs.

In reply to your letter of the 16th. instant, I beg to

state that for the reasons given by Mr. Agent Swinford in the

extract of report transmitted to me and in a letter dated the

2nd. ultimo received from the same official, (copy herewith

enclosed) I consider that it would be advisable to secure for

the Band at Nut Lake the extension of the Reserve

recommended by the Agent.

With regard to your enquiry as to making a reduction.

in the reserve in one direction if extended in the other, I beg

to say that as these Indians do not appear to have received

their quota of land, I would favour basing the total area of

the Reserves for this Band on the present population of the

- 67 -

Fishing Lake and Nut Lake Indians, including the Kinistino

group. This will permit of the setting apart of a small

Reserve of 15 square miles for the latter, where they are at

present settled, as already recommended in my letter of the

21st. June last, and an extension north of the Reserve at Nut

Lake up to the area they would be entitled to on that basis,

without any reduction elsewhere. Should, however, it be

desirable to extend the reserve further north than the above

would allow, then I would recommend that a corresponding

reduction be made elsewhere.

There were 358 Indians paid in this Band last month

and two were reported absent, making a total of 360 of a

population, which would entitle them to 72 square miles.

The aggregate area of the two Reserves is 51.1 square miles,

making a discrepancy of 20.9 sq. miles. Of this quantity 15

sq. miles could be set apart in Townships 41 and 42, Range

15, West 2nd. P.M., and the balance of 5.9 added to the

present Reserve at Nut Lake.

Recapitulation.

360 Indians entitled to

Fishing Lake Reserve

72 sq. miles.

34.5 sq. miles

16.6 " "

Nut Lake

"

Proposed Reserve for

Kinistino group.

15. " "

" addition to Nut Lake

Reserve.

5.9 " "

72

72 sq. miles.

=====================

[Exhibit P-55, Tab 9, p. 150]

- 68 -

The above accords with an earlier letter of Mr. Forget dated June 21, 1893 (Ex. P-2, p.

342) and by 1903 the stated quantity of land had been surveyed.

[111]

In 1902 the existing population was 378 and an additional 3,961.6 acres

were set aside, bringing the total to 46,028.8 acres which exceeds any entitlement based

on the population of 293 persons at the time of the first survey in 1881, but less than full

entitlement of 48,384 acres based on a 1902 population of 378 persons. That entitlement

had not been fulfilled was acknowledged at the time by the Department of Indian Affairs.

[112]

Here is a clear instance when present or current population was the basis for

calculation of Reserve Land entitlement. It is worthy of mention that this occurred in

respect to the second survey in 1899, which was only ten years after the James Roberts

Band adhered to Treaty No. 6. The documents also indicate that Mr. Forget was not

alone in his approach at that time.

[113]

(7) Horse Lake Band. This Band was a party to Treaty No. 8. The first

survey was done in 1905 when the population was 112 persons. The entitlement would

have been 14,336 acres, but 15,642 acres were set aside. However, a second survey was

conducted in 1914 and an additional 4,032 acres were allotted. At the time of the second

survey the population was 151 persons which would generate an entitlement of 19,328

acres. In fact, the band received 19,674 acres which was excessive, but more in keeping

with the population in 1914 than in 1905 when the first survey was done. There was

something of a justification for the excess in that the Reserve Lands contained some

ponds and marshes. See Exhibit P-58, Tab 24.

[114]

(8) Peter Ballantyne Band. This band is a party to Treaty No. 6 by reason

of the Adhesion Agreement signed on February 11, 1889, as at that time the band was a

- 69 -

part of the James Roberts Band. The population as of that date is not known, but as of

1900 it was 338 persons. A survey was done, probably in 1919, when the population was

374 persons which justifies an entitlement of 47,872 acres of which 16,805.64 acres were

set aside. That left a short fall of 31,066.36 acres. An additional survey occurred in 1921

which resulted in additional lands being set aside so as to bring the total to 22,551 acres.

In a letter dated April 26, 1929, Mr. A.F. MacKenzie, Acting Assistant Deputy and

Secretary, Department of Indian Affairs, wrote to Mr. F.E. Peters, Surveyor General,

Department of the Interior, and in the course of that letter said this about the Peter

Ballantyne Band.

Also if time and finances permit, additional lands to be laid

out for the Pelican Narrows band at Ballantyne Bay. This

band has a population of 456, which would entitle them to

58,368 acres, of which 22,551.30 acres have already been

laid out in six parcels, leaving a balance of 35,817 acres.

[Exhibit P-56, Tab 14, p. 224]

In that same year an additional 10,425.5 acres were set aside.

[115]

(9) Key/Shoal Lake Band. This is a Treaty No. 4 Band and a survey was

done in 1883. At time of treaty the population was 132 persons and at date of first survey

it was 195 persons. The entitlement was 24,960 acres and at the time 24,320 acres was

set aside, leaving a shortfall of 640 acres. Additional surveys were done in 1889 and

1893 resulting in a total allotment of 29,736.6 acres. This amount exceeded even the

entitlement based on a population of 215 persons in 1893.

[116]

I now look specifically at how land was allotted to the Lac La Ronge Indian

Band. It adhered to treaty in 1889. The first Reserve was surveyed in 1897, being the

- 70 -

Little Red River Reserve. Varied opinions then appeared in the correspondence about the

calculation of land entitlement. In a letter dated April 14, 1899, Mr. A.W. Ponton,

Surveyor, reported to the Department of Indian Affairs, about surveying Indian Reserve

106A on the Little Red River. In that letter he wrote:

The adhesion of the Montreal Lake and Lac la Ronge

Indians to Treaty No. 6 was taken during the winter of 1888

and 1889 by Commissioner Lieut Col. A.G Irvine acting

under authority of Order-in-Council, dated 29th November

1888 (F. 56622). The census of the Bands in 1889 gave their

numbers as 435, which would entitle them under the

stipulations of Treaty 6, to 87 square miles of land—Of this

area the reserve surveyed by the undersigned at Montreal

Lake in 1889 — known as Indian Reserve No. 106 —

provides 23 Square Miles, and the reserve forming the

subject matter of this letter — known as 106A — provides

56.5 Square Miles, or a total of 79.5 square miles, and it

would therefore appear that they are still entitled to 7.5

square miles over and above the area already set aside and

reserved for their use —

[Exhibit P-2, p. 381]

Mr. Ponton clearly adopted population figures from the date of treaty even though ten

years had passed. In contrast there is this memorandum from Mr. Duncan Campbell

Scott, then an accountant with the Department of Indian Affairs, to the Deputy

Superintendent General dated March 22, 1907, some eight years later.

With reference to the land due the Montreal Lake and

Lac la Ronge Indians I find that the Reserves were located

upon the population as it was in 1889, namely, 435. The

population is now 715; a considerable increase. ... It seems

- 71 -

to me that these Indians have too small an area of land for

their population, ... They certainly have a claim to some

additional land, and I think while we are investigating this

point the surrender of 106A might go on.

[Exhibit P-2, p. 485]

[117]

However, there also was the following letter of June 6, 1908, from Mr. J.D.

McLean, Secretary, Department of Indian Affairs, to Mr. W.J. Chisholm, Inspector of

Indian Agencies.

. . .when you next visit the Carlton Agency go carefully into

the question with Mr. Agent Borthwick of providing an extra

reserve for the bands of Chiefs James Roberts and William

Charles who apparently are connected with a band of Chief

Amos Charles of Lac la Ronge.

There appears to be no doubt that these Indians are

deficient of a considerable area of land under the treaty. Mr.

Borthwick has gone into the question of natural increase in

order to ascertain the number of Indians who were entitled to

land at the time of the treaty. He estimates this number at

466. The two reserves for the said band namely Nos. 106

and 106A contain respectively 23 and 56.5 square miles. If

Mr. Borthwick’s figures are correct the area to which these

Indians are still entitled is 13.5 square miles.

[Exhibit P-2, p. 584]

The reply from Mr. Chisholm, dated December 27, 1908 contains the following.

I examined the pay-sheets from the admission of these

bands [Wm. Charles and James Roberts] to treaty and

checked the calculation made in the agency office and

submitted by Mr. Agent Borthwick with a view to showing

- 72 -

the number in these bands from whom in accordance with

the provisions of the treaty lands have still to be set apart. I

observe that the Agent began his calculation from the

annuity payments of February 1889 when treaty was signed

for these bands and when the combined population was 377

instead of from the second payment which was made in

October of the same year when the bands numbered 435.

The increase included a net natural increase for the interval

of 6 persons and accessions from the non-treaty Indian

population of 52. In this respect the Agent’s method of

calculation appears to be strictly correct, as the first aim is to

ascertain the number at present in the bands who were

eligible, had they presented themselves, to be enrolled at the

date of the signing of the treaty.

[Exhibit P-2, p. 598]

After eliminating two people, Mr. Chisholm calculates 463 as the number of persons to

be entitled to have land set aside. He then goes on to say this:

Accordingly these bands would be entitled to 92.6

square miles in all, while they have received 79.5 and 13.1

square miles remains to be set apart.

[Exhibit P-2, p. 598]

[118]

A Mr. E. Jean, an official in the Department of Indian Affairs, wrote a

memorandum dated September 27, 1910, in which he said the following.

. . .The number of Indians paid on Feb. 12th 1888 when

adhesion was taken was:

Montreal Lake, 99

Lac la Ronge 279.

- 73 -

In 1889 Mr. Surveyor Ponton surveyed Reserve 106

for the Montreal Lake Band which according to the Pay

sheets of that year numbered 101 souls, thus entitling them

to 20.2 square miles under the stipulations of Treaty No. 6.

Reserve 106 contains 23 sq. miles thus giving Montreal Lake

Band more land than it was entitled to according to the

population of 1889.

Reserve 106A was surveyed in June and July 1897

and the payments made that year show the population as

follows:—

Montreal Lake, 148.

Lac la Ronge, 484.

This Reserve was set apart for the benefit of the two

Bands.

. . .

. . .The population of the Montreal Lake Band in 1897 (143

souls) would entitle them to 28.6 square miles and the 9

square miles referred to with the 23 sq. miles in Reserve 106

gave them a total of 32 square miles.

. . .

The population of Lac la Ronge Band in 1897 was

484 souls entitling them to 96.8 square miles.

. . .

Of course the population of the two Bands has kept

increasing since 1897 by the admission of Indians to Treaty

and [unreadable] they are both entitled to more land than

they have received so far. The population in 1909 was:—

Montreal Lake,

187.

- 74 -

Lac la Ronge,

516.

This would give the former 37.2 square miles and the

latter 103.2 square miles.

[Exhibit P-3, p. 685]

That individual did not go back to the population at date of treaty or date of first survey.

He calculated entitlement on the basis of the then current population. I could find nothing

in the documents at about that time or for a period following in which Mr. Jean’s

approach was rejected.

[119]

In a letter dated September 26, 1922, Mr. J.D. McLean, Assistant Deputy

and Secretary, wrote the following to Mr. W.R. Taylor, Indian Agent.

You mention in your letter an area of 7 sq. miles.

Kindly inform us as to how this area is arrived at. This

matter was gone into in 1920. For the three bands, Montreal

Lake or William Charles, Lac la Ronge or James Roberts,

and Stanley or Amos Charles, the following reserves are

already surveyed, -

Montreal Lake No. 106 containing 14720 acres

Little Red River No. 106A, containing 36160 acres

Lac la Ronge, containing 2832.6 acres

Stanley, containing 2153.8 acres. . . . . . .Total 55866.4 acres.

At that time the population was as follows,—

Montreal Lake band 271

Lac la Ronge band

Stanley band

Total

379

264

914

- 75 -

At 128 acres each, they would be entitled to 116992 acres,

leaving a deficit of 61125.6 acres. . . .

If the above figures are correct, the Lac la Ronge

band have received 38922.6 acres and are entitled to 48412

acres, leaving a deficit of 9519.4 acres. That is if you

consider that Indian reserve No. 106A belongs to that band.

The Montreal Lake band numbers 271 and would be entitled

to 34688 acres; they have 14720, a deficit of 19968 acres.

The Stanley band numbers 264 and would be entitled to

33792 acres; they have 2153.8, a deficit of 31638.2 acres. . .

.

[Exhibit P-4, p. 951]

In a further letter between them, dated February 9, 1923, Mr. McLean wrote.

Accordingly to the population of 315, which the Lac

la Ronge band had in 1910, when the Stanley band was

separated, they would be entitled to 63 sq. miles of reserve.

They have now 27.2 in reserve No. 106-A and say, half of

the 10.4 sq. miles of reserve at Stanley and Lac la Ronge,

which is 5.2 sq. miles, making a total of 32.4 sq. miles.

They have therefore 30.6 sq. miles coming to them.

According to the population of 235 which the Stanley

band had when they were separated from the Lac la Ronge

band in 1910, they would be entitled to 47 sq. miles. They

have an interest of 20.3 sq. miles in reserve No. 106-A and

say, half of the interest in the 10.4 sq. miles laid out at Lac la

Ronge and Stanley, that is 5.2 sq. miles, making a total of

25.5 sq. miles. There are, therefore, 21.5 sq. miles still due

the Stanley band.

Kindly inform the Chiefs of these two bands of the

amount of land to which they are entitled and request them at

their earliest opportunity to select the locations in which they

desire to have these lands reserved.

- 76 -

[Exhibit P-4, p. 959]

It is unknown why the year 1910 was selected. Perhaps it was because in that year the

band split. However, 1910 was not the year of first survey. In fact it was midway

between the year of first survey, 1897, and the year of the letter, 1923. The letter does

appear to accept that increases in population were to be taken into account.

[120]

Finally I note the following comments by Mr. Duncan Campbell Scott, now

Deputy Superintendent General, in a letter dated September 4, 1929, to the Deputy

Minister of Justice.

I note the request of the Province of Manitoba to have

the Agreement stipulate some limitation in respect of the

areas of land to be selected in fulfillment of Treaty

obligations with the Indians. The various treaties provide for

so many acres per capita and the practice of the Department

has been to take the census of the band at the time the survey

of the required acreage is made. The acreage of hereinafter

stated will be varied at the time of survey to meet the

decrease or increase of the membership at such time. I do

not think accordingly that it would be proper to include any

limitation of acres in the Agreement. When these [------]

come to be made the Department will be able to satisfy the

Province of Manitoba as to our strict adherence to treaty

conditions. Clause 8 of the Alberta Agreement, as it

[stands?], properly safeguards the rights of the Indians as

well as the rights of the Province. The acreage still required

to be set aside in fulfillment of treaty obligations based on

the present membership of bands is as follows:. . .

[Exhibit P-5, p. 1372]

- 77 -

[121]

In the case of the Lac La Ronge Indian Band, there were several surveys.

In none of them was the full entitlement set aside and one cannot point to a document in

which the Department categorically states that a particular allotment was based on the

then current population formula. However, what does appear to be clear is that no

allotment was made on the basis of the first survey population and in some allotments

there was recognition of an increasing population.

(6) Oral History

[122]

There was evidence that Indians in general believe that in calculating land

entitlement the current population should be used. This position is supposedly based on

what has been passed down in the Indian tradition since the time of treaty. Several

witnesses were called to testify about this and I briefly summarize what they said.

[123]

Mr. Harry Nicotine is a member of the Red Pheasant Band and has been

actively and extensively involved in matters of land entitlement. His great-grandfather,

The Man Who Stood Between Two Mountains, was a signatory to Treaty No. 6. His son,

of course, was Mr. Nicotine’s grandfather and he and Mr. Nicotine had many discussions.

This gets us pretty close to the Treaty itself.

[124]

According to Mr. Nicotine, his grandfather told him that “. . .the land that

they received was the population times 128 acres, and that the current population at the

time would be used, and also in the future” (trial transcript, Vol. 4, p. 799). The

grandfather also told him that if a Band didn’t get all its land, then when more land was

given it was to be obtained under current population. The grandfather said that this

information came from his father and Chief Red Pheasant.

- 78 -

[125]

Mr. Nicotine testified that he spoke to other elders, including Allan

Ahenakew. He was told by Mr. Ahenakew that they should receive land on the basis of

current population times 128 acres. This view was passed on to Ahenakew from

Ahtakakoop.

[126]

Mr. David Ahenakew testified that the policy of the Federation of

Saskatchewan Indians was grounded in what had been passed on by Elders. He testified

that the Elders had stated that the quantum of land was to be based on current population.

That same approach applied whether or not a Band had received land.

[127]

Mr. Cy Standing also testified about how elders had passed on what had

been told to them about the meaning of Treaty. It was on the basis of this that the

Federation developed their policy that current population should be used in calculating

land entitlement.

[128]

As I have already said, I do not question the honesty or integrity of the three

witnesses. I equally do not question that they sincerely wanted to assist the court.

However, while I have considered their testimony and have taken it into my deliberations

I have not found it very helpful.

[129]

The terminology used is troubling. I find it difficult to imagine that The

Man Who Stood Between Two Mountains used the phrase “current population” and

spoke of what happens when there are multiple surveys, there likely having been none in

his time. The same applies to what was attributed to the Elders.

[130]

A more basic concern is the role of the witnesses themselves. Each one of

them has been very actively involved in Indian politics and each has been a vigorous

- 79 -

advocate of the current population formula. It is far from desirable to have oral history or

ancient wisdom and knowledge presented by such individuals. It is most likely that what

was originally communicated has become distorted for having passed through the mind of

the current narrator and being subjected to his ideas and opinions. To be meaningful and

of value, the knowledge of the Elders, who hold a unique position in Indian culture and

society, should have been put forward by the Elders themselves and not filtered through a

third party.

[131]

Were the rules of evidence to be strictly applied, the testimony would be

rejected as being hearsay and not saved by some exception, such that the Elders could not

testify. However, because I do not know the availability of the appropriate Elders, I have

decided to bend the rule and admit the testimony. Its weight is another matter.

(7) Interpretation of Reserve Land Clause

[132]

The portion of the treaty land clause which requires interpretation reads in

this way.

And Her Majesty the Queen hereby agrees and

undertakes to lay aside reserves . . . provided 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, . . . .

It was clearly stated that each Indian was to receive 128 acres of land. It is just as clear

that the clause does not state the date which is to be used to identify the Indians who are

to obtain the treaty benefit. In this regard the clause is ambiguous for there are several

possible dates, namely: the date of treaty, the date of first survey or the date of allotment,

- 80 -

these being the three spoken about in this trial. The Crown submits that the correct

interpretation is the date of first survey whereas the plaintiffs argue for the date of

allotment. In my opinion, the latter should prevail.

[133]

In coming to my conclusion I have read and reread and pondered over much

time the very words of the Treaty as a whole and the reserve land clause both in itself and

as a part of the whole. I have looked at the Treaty in its historical context, including what

is known about the circumstances which surrounded its execution. I have also looked at

how the clause was later implemented and land entitlement calculated. All of this was

done bearing in mind the rules applicable to treaty interpretation and the approach

described by now Chief Justice Lamer in R. v. Sioui, supra, at p. 1068 and p. 1069.

In my view, the treaty essentially has to be interpreted

by determining the intention of the parties on the territorial

question at the time it was concluded. It is not sufficient to

note that the treaty is silent on this point. We must also

undertake the task of interpreting the treaty on the territorial

question with the same generous approach toward the

Indians that applied in considering earlier questions. Now as

then, we must do our utmost to act in the spirit of Simon.

The historical context, which has been used to

demonstrate the existence of the treaty, may equally assist us

in interpreting the extent of the rights contained in it. . . .

. . .

. . . Even a generous interpretation of the document, such as

Bisson J.A.’s interpretation, must be realistic and reflect the

intention of both parties, not just that of the Hurons. The

Court must choose from among the various possible

interpretations of the common intention the one which best

reconciles the Hurons’ interests and those of the conqueror.

- 81 -

[134]

What now follows is the reasoning which led me to my stated conclusion. 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. That the benefit was considerable

was recognized by Lieutenant-Governor Archibald who prior to negotiating Treaties No.

1 and No. 2 wrote in a letter of July 22, 1871 as follows:

Nor indeed would it be right, if we look to what we

receive, to measure the benefits we derive from coming into

possession of the magnificent territory we are appropriating

here, by what would be fair to allow for the rocks and

swamps and muskegs of the lake country east of this

province.

[Morris - p. 32]

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.

[135]

On the other hand, the Indians received a benefit which was not

inconsiderable. They were to be assisted in modifying their lifestyle so they could

survive the disappearance of the buffalo and accommodate the influx of the settlers. For

most this involved a change from the nomadic life they had enjoyed to an agrarian one

with which they were not familiar. The assistance was to take several forms. What is

most important is that the Treaty is forward looking in addressing the benefits conferred

upon the Indians. In like manner, the Reserve Lands clause is drawn in the future tense.

There can be no question but that the parties to the Treaty saw this and intended it. The

document would make no sense were it to be read otherwise.

- 82 -

[136]

None of the writings about the treaty negotiations speak of a date for

calculation of land entitlement. Subject to what follows, there equally is no suggestion

the matter was ever raised or discussed. What we do know is that the Crown made it

clear that the Indians were not required to immediately abandon their way of life and

settle on Reserves. They were encouraged to act soon, and were told a surveyor would be

sent the next year, because of growing pressure from settlers seeking land in the West, but

it was for the Indians alone to decide when they would take up their Reserve Lands. No

time frame was set out in the Treaty and none was mentioned in the contemporaneous

writings of Morris. Equally there is no mention in the account of Mr. A.J. McNeill or Lt.

Col. A.G. Irvine who described the negotiations surrounding the Adhesion Agreement of

1889.

[137]

Counsel for the Crown quite correctly point out that there is an exception to

the above. It is contained in the work, Buffalo Days and Nights, and consists of these

words of Erasmus as found at p. 263.

. . .I explained to them that each man, woman and child then

living would be apportioned eighty acres each, according to

the number of Indians then belonging to his tribe.

Erasmus was present throughout the negotiations as an interpreter. Equally important, he

was present at the Indian councils wherein he participated in the discussions and was

therefore privy to the thoughts and understandings of the Indians. Counsel therefore

suggest that his use of the phrase “then living” speaks volumes about what was

understood by the Indians and what was presumably conveyed by the Crown.

- 83 -

[138]

One can read the quoted words as restricting entitlement to then existing

persons. However, I believe another reading is possible and I prefer it. Erasmus was

refuting the belief of Chief Seenum that he was entitled to a particular tract of land. In

doing so, Erasmus pointed out that the land entitlement could not exceed the stipulated

acreage provided for each person. He was speaking of an existing situation and described

what would happen at that time. Put otherwise, he was saying that at that time Chief

Seenum was not entitled to what he wanted, but only 128 acres for each person alive at

that time.

[139]

The statement was correct for the situation which it addressed. I do not

believe it appropriate to take it further or view it as having been intended to address the

future. Were it otherwise, I would have expected the subject to at least have been

addressed in some of the other writings. As well, if the matter was discussed as part of

the negotiations and an understanding reached, one would expect it to have been included

in the Treaty itself.

[140]

Which brings me to the next matter. By the time Treaty No. 6 was

executed, the Crown had acquired considerable knowledge and experience in negotiating

treaties. Even if one looks only at the numbered treaties, there were five which preceded

Treaty No. 6. They built on each other and through that process the Crown must have

been familiar with the aspirations and needs of the Indians as well as its own

requirements. Its negotiators knew what was likely feasible and how that was best

achieved. At the same time, while those negotiators had to work within restrictions, they

also enjoyed a certain latitude. Thus, much of Treaty No. 6 was written in advance but

certain portions were left blank to be filled in when agreement was reached. The land

acreage was one such item.

- 84 -

[141]

When one looks at the treaties which preceded Treaty No. 6, it is evident

that the Crown could be very specific when it considered it necessary. Thus, in the two

Robinson Treaties both the size and location of some twenty reservations were detailed.

In Treaty No. 1 it was the location alone which was specified and Treaty No. 2 followed

suit. Treaty No. 3 and No. 4 are the same as Treaty No. 6. In Treaty No. 5, there was

variety. Some specific locations were set out for certain Bands, but not for other Bands.

In addition, it was stipulated in the treaty itself that certain Reserve Lands would be set

aside within two years. Thus, the Crown was accustomed to setting aside Reserve Lands

at the time of executing a treaty. This approach obviously fixed the date of calculating

the entitlement and the Crown must have known this. It was an approach taken not long

before Treaty No. 6 was executed.

[142]

Furthermore, the treaties contain specific terms in other areas. In Treaty

No. 6 it states exactly when assistance will be provided for the pursuit of agriculture and

the exact duration of that assistance. It specifies when annuity payments will be made. It

specifies that a surveyor will be sent in the next year. Thus detail and exact stipulations

were not foreign to the Crown or its agents and negotiators.

[143]

Given that history I find it difficult to conclude that the Crown intended that

land entitlement be fixed at a particular date or upon the happening of a particular event,

such as a survey. 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. At the same time, there

is nothing to suggest the Indians intended or agreed that land entitlement would be fixed

at a particular date.

[144]

In my opinion, the true situation was this. The Indians were going through

a difficult period and did not know what the future held. They did not know when they

- 85 -

would settle upon a Reservation and were probably hoping that it would be later rather

than sooner. Their immediate concern was that land would be available when needed.

[145]

On the other hand, the Crown was aware of the western migration, but felt

no compulsion or urgency to settle the Indians on Reservations. The tardiness following

execution of several of the treaties attests to this. At the same time, the Crown

anticipated the Indians would in time be assimilated into the new society and did not

anticipate that the overall Indian population would increase to any significant degree.

Both have proven to be wrong, although the second is a fairly recent phenomenon. In the

result, the Crown felt no need to fix a date for determining entitlement.

[146]

Within that setting, 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.

Therefore, I conclude that it was the intention of the parties to Treaty No. 6 that land

entitlement would be calculated as of the date when the treaty obligation was fulfilled. In

my opinion, this is the most reasonable interpretation and the one which best reconciles

the competing interests of the parties.

[147]

When I look to subsequent conduct, and more particularly what is revealed

in the documents, I am not much assisted in my task. The documents do not reveal an

absolutely consistent policy or approach. There is no written document expressly

outlining a specific policy. There are documents which address the question of

calculating entitlement, but there is no completely consistent theme throughout.

- 86 -

[148]

Different officials speak of different approaches. Thus, Mr. Thomas

Borthwick, Indian Agent, in a letter dated April 21, 1908, states that in calculating land

entitlement, the population number to be used is that at the time of treaty and he expressly

excluded natural increase. This approach was endorsed by Mr. Duncan Campbell Scott,

an accountant, and later Superintendent General, and adopted by Mr. W.J. Chisholm,

Inspector of Indian Agencies. One can contrast this with a letter of Mr. A.E. Forget,

Indian Commissioner, dated September 6, 1898, and a memorandum dated September 27,

1910, of Mr. E. Jean, an official in the Department of Indian Affairs, wherein he

calculates entitlement on the basis of the population in 1909.

[149]

It is somewhat different when I look to what was actually done by the

Department of Indian Affairs. As was pointed out by counsel for the Province of

Saskatchewan, 77 Indian Bands have been recognized in Saskatchewan and of those, 72

have received Reserve Land. However, only 23 of those bands have received land on

more than one occasion and those are the ones to look at because the Lac La Ronge

Indian Band has received land on more than one occasion. Of those 23 bands, 20 are

distinguishable for one or another reason. Some had no entitlement when they received

additional lands; some did not receive lands until the modern era; and some received

additional lands for fishing stations or as hay lands and such was not intended to fulfill

Treaty obligations. I consider the foregoing to be basically accurate, although I consider

an additional three bands to be indicators of the approach by the Department of Indian

Affairs.

[150]

Counsel goes on to submit that the three of which he spoke are of little

assistance because their factual circumstances were unique. Two were in a “state of

formation” and the third had a complicated history, including an issue about surrendering

- 87 -

land. While the submissions are factually accurate, I still consider two of the three to be

an indication of the Crown’s position at the time.

[151]

The first was the Cowessess Band which was a party to Treaty No. 4.

There were two surveys with the second occurring in 1884, at a time when the population

had decreased, and the reduced number was used to calculate entitlement. The second

was the Thunderchild Band and as I stated earlier at page 63, I cannot be certain what

happened here. The third is the Yellow Quill Band which adhered to Treaty No. 4. In

this instance there was a second survey in 1899 and a third in 1902 and in each case the

entitlement was based on the population at that time.

[152]

The additional three are the Horse Lake Band, the Peter Ballantyne Band

and the Key/Shoal Lake Band. In each instance additional land was set aside and the

allotment was based on the current population. Finally, there is the situation of the Lac

La Ronge Indian Band itself where additional allotments were based on increasing

populations.

[153]

There then is the testimony about the Indian tradition and what was passed

down through the years. After giving it much thought, I find that I do not have much

confidence in the accuracy of what was presented to me. Therefore, this testimony has

not influenced my conclusion.

[154]

In the end, no single thing provides a definitive answer. The clause itself is

ambiguous. The writings which are contemporaneous to the Treaty provide some insight,

but no clear answer. The historical documents are ambivalent in that they speak of more

than one approach. The actual conduct whereby allotments were made are not numerous,

- 88 -

but they indicate that in at least some instances they were made on the basis of

populations at the date of the subsequent surveys.

[155]

Yet when I consider all of the foregoing as a whole I have no hesitation in

concluding that both the Indians and the Crown had the common intention that a band’s

entitlement to Reserve Lands would be calculated when the Crown’s treaty obligation

was met and fulfilled in its entirety. Thus, if fulfilment extended over a period of time,

the treaty obligation was not met until the end of the process and the extent of that

obligation fell to be determined by reference to the population at the end. To use the

vernacular, a part payment would not suffice. It would not fix or crystallize the whole

entitlement. To the extent that the Crown has not acted in accordance with that

interpretation, there remains an obligation to the Lac La Ronge Indian Band.

[156]

Before leaving this topic I should address some concerns raised by counsel

for the Dominion of Canada. He suggested the stated interpretation would be

unreasonable and would not achieve reconciliation because it leads to absurd results.

[157]

At this juncture I want to return to the Reserve Land clause itself. It

obviously contemplates a request for land originating with the Indians. That starts the

process. Thereafter the Indians, together with a Crown representative, are to select the

lands. Once this has been done, the Crown has a duty to set apart all of the entitlement to

the Indians. Once the Indians have done everything required of them, the Crown has a

duty not to delay the setting apart of the lands.

[158]

From what I have been able to ascertain, the historical practise has been

this. There was agreement as to the size of the entitlement. However, the Crown then

unilaterally, and usually after lengthy delay, set aside a tract of land which was less than

- 89 -

the entitlement. Had they fulfilled their obligation at the time there would have been no

basis for complaint and a major part of this lawsuit would have been avoided. With those

observations I turn to deal with the matters raised.

[159]

The first concern is that the interpretation would extinguish a Band’s claim

where it did not receive its full entitlement on the date of first survey and subsequently

experienced a decline in population. This is a possibility. If the two sides leave the

matter open, then the entitlement could go up or down. However, this would follow upon

a deliberate decision to permit that situation to exist. On the other hand, the fluctuation

could be prevented by the parties mutually agreeing that the entitlement is fixed.

Alternatively, the Crown could crystallize the situation by setting aside the full

entitlement and thereby completing the process.

[160]

The second concern is that there is an inequity in the case of multiple

survey Bands because they have had the use of certain land in the past and no account is

taken of this. In response, I fail to see any inequity. The Band was entitled to the land

and there can be no complaint if it enjoyed the fruits of that to which it was lawfully

entitled. If there was any inequity, it arises because it did not receive its full entitlement

and was precluded from obtaining the benefit of that.

[161]

The third concern is that there would be no distinction between a Band

which received all but one acre of its entitlement on the date of first survey and a Band

with the identical current population which has received no land. Both would have the

same entitlement despite the fact that the one had the use and benefit of its land, whereas

the other did not. First of all, I very much doubt that a shortfall of one acre should extend

an entitlement. However, what is more to the point is that the Band which neglected to

- 90 -

request and obtain its entitlement must bear responsibility for the consequences. It is not

right to visit the one Band’s neglect upon the other which acted diligently and wisely.

[162]

The fourth and final concern is that my interpretation makes it difficult, if

not impossible, to determine when a Band’s entitlement has been satisfied. This is

because there is of necessity a delay between the census, the selection, the survey and the

setting apart of the lands. The sequence of events is accurate, but I do not see it as a

critical problem. If the Crown is asked to fulfill its Treaty land obligation and it

undertakes to do so, that becomes the date on which the population is ascertained. So

long as the parties thereafter carry out their obligations with reasonable dispatch, once the

required land is set aside the entitlement is fully satisfied. If the Indians unreasonably

delay the process, they cannot gain a benefit by doing so. If the Crown unreasonably

delays the process, it may happen that the entitlement will increase. What is reasonable

will always be a question of fact and good faith will avoid all problems. Accordingly the

concerns raised do not cause me to question my interpretation.

[163]

In conclusion, I interpret the Reserve Land clause of Treaty No. 6 such that

when entitlement to land is being calculated the existing population (current population)

at the time of calculation is to be used. As the Adhesion Agreement of 1889 entitles the

Lac La Ronge Indian Band to the benefits of Treaty No. 6, that Band should have its

Reserve Land entitlement calculated in the manner stated.

(8) Interpretation of Ammunition and Twine Clause

[164]

Treaty No. 6 provides that $1,500.00 a year will be spent to acquire

ammunition and twine for the Indians. The Adhesion Agreement of 1889 provides that

- 91 -

those Indians are to obtain a like benefit, but the amount is qualified. The two clauses

read as follows:

It is further agreed between Her Majesty and the said

Indians that the sum of fifteen hundred dollars per annum,

shall be yearly and every year expended by Her Majesty in

the purchase of ammunition and twine for nets for the use of

the said Indians, in manner following, that is to say : —In

the reasonable discretion as regards the distribution thereof,

among the Indians inhabiting the several reserves, or

otherwise included herein, of Her Majesty’s Indian Agent

having the supervision of this treaty ;

[Treaty No. 6]

And we hereby agree to accept the several benefits,

payments and reserves promised to the Indians adhering to

the said treaty at Fort Pitt or Carlton ; with the proviso as

regards the amount to be expended annually for ammunition

and twine, and as respects the amount to be expended for

three years annually in provisions for the use of such Indians

as are settled on reserves and are engaged in cultivating the

soil, to assist them in such cultivation, that the expenditure

on both of these items shall bear the same proportion to the

number of Indians now treated with as the amounts for those

two items as mentioned in Treaty No. 6 bore to the number

of Indians then treated with. . . .

[Adhesion Agreement]

The issue is whether a single $1,500.00 is to be used for the benefit of all the Indians, or

are those Indians who adhered to Treaty in 1889 to receive a separate benefit. I have

concluded that the latter was intended.

- 92 -

[165]

If the clause in the Adhesion Agreement was intended to provide that there

be a sharing in the original benefit, it would have been a very simple task to so state.

Instead, the drafters chose to speak in terms of proportionality and it relates to the

expenditure. In other words, a method was set out whereby the expenditure itself would

be calculated using the sum of $1,500.00 as the benchmark. The clause contemplates a

new and distinct expenditure which will have the effect of providing to the later adherents

an identical benefit as that earlier provided in the Treaty itself.

[166]

A second consideration is that if the original benefit is simply shared, the

value of the benefit is reduced for those who were parties to Treaty No. 6. This would be

unfair to those Indians and I do not believe the Crown could unilaterally effect such a

change to the Treaty. As well, I do not believe that the Crown would deliberately so act

and bring about such a result.

[167]

Accordingly, I hold that the parties to the Adhesion Agreement of 1889 are

entitled to a separate benefit of an expenditure for ammunition and twine. The amount of

that expenditure is to be predicated on $1,500.00 and proportionate to the Indian

populations at the date of execution of the respective documents. The calculation is to

achieve a value which is effective as of 1889.

E. BAND COUNCIL RESOLUTION

[168]

On May 8, 1964, seven councillors of the Lac La Ronge Indian Band

signed the following resolution which had been unanimously passed at a Band council

meeting. At the time the Band had no chief.

- 93 -

Department of Citizenship and Immigration

Indian Affairs Branch

Band Council Resolution

The Council of the Lac La Ronge Band of Indians, in the

Carlton Indian Agency, in the Province of Saskatchewan at a

meeting, held at La Ronge this eightth [sic] day of May A.D.

1964

DO HEREBY RESOLVE:

That We, the Councillors of the Lac La Ronge Band, hereby

agree to accept 63,330 acres as full land entitlement under

Treaty No. 6.

(1)

The land entitlement will be based on 35.24% of the

Band population of 1,404 in 1961; the date we

requested land from the Province of Saskatchewan

and will comprise 63,330 acres.

(2)

(3)

(4)

Mineral rights will be transferred with the land.

Land transferred will reach to the high water mark.

This selection of lands makes up the full and final

land entitlement of the Lac La Ronge Band under

Treaty No. 6.

(Chief)

“Daniel Cook”

(Councillor)

“A. Halkett”

(Councillor)

“John Cook”

(Councillor)

“John Morin”

(Councillor)

“Isaiah Charles”

(Councillor)

“Henry Charles”

(Councillor)

- 94 -

“Angus Merasty”

(Councillor)

[Exhibit P-11, p. 3105]

[169]

The defendants submit that the plaintiffs are bound by the resolution which

constitutes an acknowledgment that the stated acreage completes the Band’s full

entitlement under Treaty No. 6 and constitutes a release to the Crown of any further

obligation as the stipulated acreage in fact has been set aside. The plaintiffs submit that

they are not bound by the resolution as it was passed absent the necessary informed

consent and as well, it came about in consequence of the Crown’s breach of its fiduciary

duty to the Band.

[170]

The Band Council Resolution was the culmination of a series of discussions

which commenced many years earlier. To properly appreciate and assess the resolution it

is necessary to see it in the context of that which preceded it. To this end I go back ten

years to 1954. Since I have concluded that there was an absence of informed consent, I

include in this review certain opinions of Department officials which were never

communicated to the Band councillors.

(1) The Facts

[171]

On February 25, 1954, Mr. L.L. Brown, Superintendent of Reserves and

Trust for the Department of Indian Affairs, sent a memorandum to Mr. J.P.B. Ostrander,

Superintendent - Welfare Services, Department of Citizenship and Immigration, Indian

Affairs Branch. These remarks form a part of that memorandum.

- 95 -

In the second place, it is obviously his

[Superintendent Knapp of the Fort Vermilion Agency]

understanding, and presumably that of the Indians as well,

that on the basis of their Treaty they are entitled to a fixed

amount of land based on their present population. In so far

as I am aware, it has never been definitely determined

whether the land credit set up in a Treaty is to be determined

on the basis of the number of band members at the date of

Treaty, at any time thereafter or at the present date. As I

mentioned to you, I tried to find the answer to this problem

some years ago and was surprised to find that the problem

had never been determined. It seems obvious that it should

be at as soon a date as possible and it is our intention to refer

the matter to our legal advisor to take whatever steps he

considers necessary to have the point determined. . . .

[Exhibit P-9, p. 2643]

The legal opinion referred to was provided on May 20, 1954, and it is less than definitive.

Following are excerpts from that opinion.

From an examination of departmental records and

applicable treaties it is apparent that it was the intention to

set up the reserves as soon as practicable after treaty but for

various reasons in the cases cited by you this hasnot [sic]

been done and the passing of the years has brought about the

difficulties which now confront us, with a further

complication of the transfer by Canada of the natural

resources to the Provinces of Manitoba, Saskatchewan and

Alberta. . . .

On examining your files I find an interesting

observation on the point in question made by Dr. Duncan

Campbell Scott, a former Deputy Superintendent General of

Indian Affairs, to the Deputy Minister of Justice in a letter

dated the 4th of September, 1929. A portion of this letter is

quoted herewith as follows:

- 96 -

“The various treaties provide for so many acres per

capita and the practice of the Department has been to

take the census of the band at the time that the survey

of the required acreage is made. The acreage as

hereinafter stated will be varied at the time of survey

to meet the decrease or increase of the membership at

such time. I do not think accordingly that it would be

proper to insert any limitation of acres in the

Agreement. When these surveys come to be made

the Department will be able to satisfy the Province of

Manitoba as to our strict adherence to treaty

conditions. Clause 8 of the Alberta Agreement, as it

stands, properly safeguards the rights of the Indians

as well as the rights of the Province. . . .”

In a review of the problem there does not appear to be

any possible way to give a firm legal opinion as to the rights

of the Crown in right of Canada to arbitrarily set the

selection date for purposes of determining the area of a

reserve for a band under any of the above treaties.

The established practice of the Crown in right of

Canada was in 1929 set out as above by Dr. Scott and by the

above quoted section of the Natural Resources Agreements,

the Provinces are under obligation from time to time, upon

the request of the Superintendent General of Indian Affairs,

to set aside, out of unoccupied Crown lands thereby

transferred to its administration, such further areas as the

Superintendent General may, in agreement with the

appropriate Minister of the Province, select as necessary to

enable Canada to fulfil its obligations under the treaties with

the Indians of the Province.

[Exhibit P-9, p. 2654]

[172]

During the next year a reluctance to extend the Reserve system became

evident within the Department. On November 18, 1955, Mr. W.C. Bethune, Acting

- 97 -

Superintendent Reserves and Trust, who in time succeeded Mr. L.L. Brown, wrote to Mr.

F. Matters, Regional Supervisor of Indian Affairs. In a rather lengthy letter he outlined

what information should be included in any submission for the creation of a new Reserve.

Those directions were prefaced with these remarks.

You are aware, I believe, that there has existed in the

minds of senior departmental officers doubt as to the wisdom

of extending the Indian Reserve system on the ground that it

is to some extent outmoded and tends to delay integration of

Indians. Undoubtedly, there is some weight to this

argument, but it is recognized that in some areas Reserves

are needed and are likely to serve a useful purpose for years.

Each case will have to be considered on its own merits and

the Deputy Minister is prepared to consider individual

submissions.

[Exhibit P-9, p. 2725]

Yet, somewhat contrariwise, in a letter dated January 31, 1956, Mr. Bethune states “. . .

that the Deputy Minister is very interested in the establishment of new reserves and

additions to existing reserves. . . .” However, he discourages discussions with the

Province or the Indians prior to the Deputy Minister considering any proposal (Ex. P-9, p.

2734).

[173]

By March 23, 1956, Mr. Bethune was Superintendent, Reserves and Trusts.

On that date he wrote to R.F. Battle, Regional Supervisor of Indian Agencies, at Calgary,

Alberta, in regard to the land entitlement of the Slaves of Upper Hay River Band. He

pointed out that on the basis of the 1939 population of 547 Indians, the Band was entitled

to 70,016 acres and by surveys in 1940 and 1941 it was allotted 56,152.20 acres. In order

to extinguish the land claim, he approved the use of the 1955 population of 583 Indians

- 98 -

which resulted in an increased entitlement of 77,624 acres (Ex. P-87, doc. 53). Thus we

have an instance when Mr. Bethune adopted the then existing population as the basis for

calculating land entitlement.

[174]

On January 26, 1957, the La Loche Band requested that a Reserve be

created (Ex. P-10, p. 2762). The Department took the matter under advisement and by

October 29, 1959, the Department was considering the situation of not only the La Loche

Band, but also the Lac La Hache Band, the Stoney Rapids Band, the Fond du Lac Band

and the Lac La Ronge Indian Band (Ex. P-10, p. 2822). At that time, the first four bands

had no Reserve Land whereas the Lac La Ronge Indian Band did have Reserves. In a

letter dated November 10, 1959, Mr. Bethune agreed that entitlement for the northern

bands should be settled, but suggested they concentrate on one group at a time (Ex. P-10,

p. 2826). Then in a letter of December 18, 1959, to the Regional Supervisor,

Saskatchewan, Mr. Bethune addressed the entitlement of the Lac La Ronge Indian Band

and said this.

During the course of the discussion the remaining

land credit of the La Ronge Band was brought up and we

advised Mr. Tunstead that we would go into the matter and

forward the required information to your office. Attached

please find a summary completed by our Land Registry

Section showing the reserves already established with their

acreage.

The reserves were selected in 1909 when the Band

population was 526. On this basis treaty entitlement would

then be 67,328 acres, and they would still be entitled to a

further 23,707 acres. I might add that as no reserves have

been established for the northern Indians the Province, I

- 99 -

believe, would have no objection to establishing entitlement

on the basis of present day population.

[Exhibit P-10, p. 2830]

[175]

However, matters did not move ahead. On February 26, 1960, Mr.

McLeod, the Regional Supervisor, wrote to Mr. Bethune advising that the Indians were

expressing concern about delay as mineral exploration was proceeding in the area. He

concluded with a request for instructions about procedures “. . .bearing in mind that all of

the Bands concerned are illiterate and that all transactions must be done through an

interpreter” (Ex. P-10, p. 2840).

[176]

Then on June 23, 1960, Mr. McLeod reported that he had heard nothing

further from the Northern Indians and that they had “. . .the false idea that Indian

reservations are not necessary as they have the whole northern areas for their own use. . .”

(Ex. P-10, p. 2852). Thus, the Indians no longer appeared to be anxious to settle land

entitlement. By memorandum dated November 7, 1960, sent to Mr. McLeod, Regional

Supervisor, Mr. Bethune suggested a procedure for dealing with the La Loche Band and

urged that the matter be “. . .cleared up as soon as possible, but it must be with the full

concurrence of the Indians” (Ex. P-10, p. 2875). That brings me to the events which

directly led to the Band Council Resolution.

[177]

On December 7, 1960, Mr. R.M. Hall, a solicitor in Prince Albert,

Saskatchewan, wrote to Mr. McLeod, the Regional Supervisor, about the Lac La Ronge

Indian Band’s land entitlement.

We have been consulted on behalf of the Lac La

Ronge Band which at the time of the Treaty in question we

- 100 -

understand was called James Roberts Band. Our clients

advise us that under the Treaty provision was made for

60,000 acres of land for this Band. This was computed on

the basis of one section of land for every five members of

the Band. We understand that of this amount only 6,000

acres has been allocated and we have been requested to take

the necessary steps to have the balance allocated.

We would appreciate it if you would give us what

information you can in regard to this matter.

[Exhibit P-10, p. 2879]

There is nothing which explains how the 60,000 acres were calculated. In any event, Mr.

McLeod responded as follows on December 9, 1960, and on that same date sent a copy of

the Hall letter to Mr. Bethune and requested information as to any entitlement.

I have your letter of December 7th regarding a claim

presented to your firm by the above mentioned band of

Indians concerning some 60,000 acres of land under treaty

provisions.

We are forwarding your letter to our Branch in

Ottawa requesting that a search of the records be made to

ascertain, according to treaty, what additional lands the

James Roberts Band are entitled to.

Enclosed please find a copy of Treaty No. 6 wherein

you will note on Page 18 that James Roberts and William

Charles signed adhesions to Treaty No. 6 at Montreal Lake

on February 11, 1889.

In view of the fact that the province now administers

all lands in Northern Saskatchewan, the question of

additional lands for use of La Ronge Indians would have to

be discussed with the Northern Administrator, Department

- 101 -

of Natural Resources, whose office is located in Prince

Albert.

We have requested Superintendent Neil Wark of the

Carlton Indian Agency to call and discuss this particular

claim with you.

It would appear that Chief James Roberts represented

the Lac La Ronge Indians and Chief William Charles

represented the Indians in the Stanley Mission area when

completing adhesions to Treaty No. 6. These two bands

amalgamated at a later date and are now known and

recognised as the Lac la Ronge and Stanley Band.

Possibly we could arrange to hold a meeting with the

Indians in the La Ronge area during the Christmas week,

when they will be at their homes and all in from trap lines.

In this manner we could work out with them the location

they wish to select.

[Exhibit P-10, p. 2880]

Mr. Bethune responded to Mr. McLeod on January 6, 1961.

It is apparent from our current files that the Band in

question have a fairly substantial land entitlement to their

credit. However, to determine the exact acreage of this

credit it will be necessary for us to review several old files

and treaty records which are now with the Public Archives

of Canada.

These files and records will be examined at the

earliest possible date so that you may be supplied with

sufficient information to answer the inquiry from

Cuelenaere, Hall and Schmit.

[Exhibit P-10, p. 2888]

- 102 -

In the meantime, Superintendent Wark and two assistants met with the Band council on

December 28, 1960. The minutes disclose there was discussion about Reserve locations,

but it appears nothing was said about the quantum of the entitlement (Ex. P-10, p. 2883).

[178]

Mr. McLeod next wrote to Mr. Bethune on February 6, 1961. He

specifically inquired about what population was to be used in calculating land entitlement

of the La Loche Band.

Could you inform us please whether the population

figures at the time Treaties were signed, or the population

figures at the present time should be used when calculating

the amount of land due various bands requesting land

settlement pursuant to Treaties 9 and 10. If the effective

date should be the day treaty was signed, could you please

give us the population of the following band on that date:

Portage la Loche No. 13

Fond du Lac No. 5

Stoney Rapids No. 7

Lac la Hache No. 31

Lac la Ronge No. 156

[Exhibit P-10, p. 2899]

Mr. Bethune responded as follows on February 13, 1961.

I believe we should take the position that the reserve

entitlement of Indians should be based on the population of

the bands at the time reserves are set apart for them. As far

as I know, this attitude has not been challenged by any

- 103 -

province, and there is some justification for it. A problem is

created when bands only received a portion of their reserve

entitlement in past years, but it is thought that this situation

can be worked out on a reasonable basis. The Portage la

Loche, Fond du Lac, Stoney Rapids and Lac la Hache Bands

have no reserves so this situation does not arise in those

cases. The Lac la Ronge Band on the other hand has had

some reserves set apart for them, and I think that it would be

just as well to clear up some of the other cases before we

deal with the Lac la Ronge Band.

If the Deputy Minister of Natural Resources agrees to

the setting aside of 16,640 acres for the La Loche Band, then

we can assume that the Province is prepared to set aside

reserves based on the current population.

[Exhibit P-10, p. 2902]

[179]

On March 28, 1961, Mr. J.W. Churchman, Deputy Minister of Natural

Resources Saskatchewan, inquired of Mr. G.F. Davidson, Deputy Minister of Citizenship

and Immigration “. . .whether the population figure to be taken is the population at the

date the treaty was signed or the present time” (Ex. P-10, p. 2910). The response of Mr.

Davidson on April 12, 1961, was as follows:

It is our view that in cases of this kind, where bands

have no reserves, the acreage to which they are entitled must

be calculated on the basis of population at the time reserves

are being selected and set apart. This method is acceptable

to the Provinces of Alberta and British Columbia and has

been used in both areas in very recent years.

[Exhibit P-10, p. 2911]

It will be noted that the answer is qualified as applying only to bands with no reserves.

- 104 -

[180]

Then was born what is known as the Compromise Formula. It is the

creation of Mr. Bethune. A handwritten calculation of the Lac La Ronge Indian Band’s

entitlement, using the formula, is contained in Exhibit P-10, p. 2912. In a letter dated

May 17, 1961, Mr. Bethune sets out for Mr. McLeod, how the land entitlement of the Lac

La Ronge Indian Band is to be calculated.

Reference is made to our letter of January 6, 1961, in

connection with claim advanced by the Lac La Ronge Band

through the law firm of Cuelenaere, Hall & Schmit of Prince

Albert, for additional land in accordance with the terms of

Treaty No. 6.

Following is an outline of land allotments to Lac La

Ronge Indians from 1897 to present time.

The Lac La Ronge Band consisting of the former

James Roberts and Amos Charles (Stanley) Bands, adhered

to Treaty No. 6 on February 11, 1889. By the terms of this

Treaty they were entitled to one square mile for each family

of five. Although the Treaty was signed in 1889, lands for

these Indians were not selected until 1897. The population

of the above two bands in 1897 was 484, which would, in

accordance with the terms of the Treaty, represent an

entitlement of 96.8 square miles or approximately 61,952

acres.

In 1897 an area of 56.5 square miles (36,160 acres)

near Prince Albert on Township 52, Range 1, 27 and 28

W2M, Saskatchewan, were surveyed and set aside for the

Montreal Lake Band and the Lac La Ronge Band. Of the

above area, 9 square miles were for the Montreal Lake Band

and the remainder for the Lac La Ronge Indians. The land

was designated Little Red River Indian Reserve and

confirmed by P.C. 2710 dated January 6, 1900. By Order in

Council P.C. 1297, dated March 31, 1948, the above reserve

- 105 -

was officially divided between Montreal Lake and Lac La

Ronge Indians whereby the Lac La Ronge Band was

confirmed in 32,007.9 acres and their portion of the above

reserve became designated as Little Red River Indian

Reserve No. 106C.

By Provincial Executive Order No. 2144/48, dated

December 3, 1948, an additional area of 6,400 acres was set

aside for the Lac La Ronge Indians. This reserve was

confirmed by P.C. 1419, dated March 21, 1950, and

designated Little Red River Indian Reserve No. 106D.

The Lac La Ronge Indians were using a number of

fishing and trapping areas in the territory of Lake La Ronge.

These lands comprising altogether an area of 5,354 acres

were surveyed in 1909 and confirmed as Indian reserves by

several Orders in Council in 1930. For particulars, see the

Summary hereafter. Following the amalgamation of the two

bands (James Roberts and Amos Charles Bands) into one

band known as Lac La Ronge Band, the above reserves were

by Order in Council P.C. 217, dated January 12, 1951,

confirmed for the use and benefit of the Lac La Ronge Band

of Indians.

Summary: According to the above, the Lac La Ronge

Indians received to date the following lands:

Little Red River

Lac La Ronge

Potato River

Kitsakie

106C

106D

156

32,007.90 acres

6,400.00

1,586.00

1,011.60

204.34

"

156A

156B

156C

157

Sucker River

Stanley

55.40

621.00

- 106 -

Stanley

157A

157B

157C

157D

157E

158

9.40

13.40

"

Old Fort

Four Portages

Fox Point

Little Hills

TOTAL

5.00

140.20

10.30

1,278.00

94.65

158A

158B

324.00

43,761.99 acres

Our feeling is that when the reserve entitlement of a

band is satisfied at the one time it should be based on the

total population of the band at that time, no matter whether it

was at the time of treaty or many years afterwards. Where

partial settlement of land entitlement was reached at several

times the problem becomes somewhat more difficult, and

requires a reasonable attitude on the part of the Indians,

ourselves and the provincial authorities. The Lac La Ronge

Band first received a reserve in 1897 and, based on the

population of the Band at that time, it represented 51.65% of

their total entitlement. In 1909, additional lands were set

aside for their use and, based on the 1909 population, the

additional lands represented 7.95% of the total they would

have been entitled to at that time. In 1948, additional land

was set aside for their use, representing 5.16% of what their

full entitlement would have been based on the 1948

population. It might, on this basis, be argued that the Lac La

Ronge Band has received 64.76% of their total reserve

entitlement. The balance, 35.24%, based on the 1961

population of 1,404, would amount to 63,330 acres.

I think you might explore with the Province, and later

with the Indians, the possibility of settling in full the treaty

entitlement of Lac La Ronge Band on the basis of a further

- 107 -

reserve or reserves totalling 63,330 acres. Until you

ascertain the attitude of the province, I think it would be

inadvisable to take the matter up with the band or the Law

firm writing on their behalf.

[Exhibit P-10, p. 2913]

In fact, Mr. Bethune had come a long way considering that in December, 1959, he had

stated the Band’s entitlement to be only 23,709 acres.

[181]

Once again everything moved slowly. Then, almost a year later, on March

6, 1962, Mr. W.J. Brennan, Acting Regional Supervisor, sent a memorandum to Indian

Affairs Branch setting out the entitlement of the five northern bands. As to the Lac La

Ronge Indian Band he wrote this.

This Band has up to the present time received of their

allotment a total of 43,761.99 acres. This acreage has been

acquired over a period of many years. It is, therefore, not

fully known in this office just what procedure or policy

would be used in determining the amount of land this Band

might still lay claim to. We would refer you to your letter

dated May 17, 1961, a photostat copy of which is attached.

You have here suggested that this band has a balance of

35.24% of their total allotment left. On the basis of the

population mentioned in your letter they would then have a

total of 63,330 acres yet to be taken up. The La Ronge Band

have requested that this allotment be given to them in two

parcels, one parcel at Potato Creek approximately 20 miles

south of the La Ronge settlement and the other portion to be

located immediately south of the Prince Albert National Park

in the area known as the community pasture. Both areas are

to be of equal size or as near as possible. There may be

some objection on the part of the Province to the latter parcel

which would be on the south boundary of the National Park.

- 108 -

[Exhibit P-10, p. 2949]

This letter suggests the Band had been informed of the intended allotment and there had

been some discussion within the Band for there had been a determination that the

allotment would be given in two parcels.

[182]

Mr. J.G. McGilp then took over as Regional Supervisor Saskatchewan. On

August 31, 1962, he sent a memorandum to Indian Affairs Branch saying that it was

imperative that the five northern bands be provided with their land allotment (Ex. P-10, p.

2959). On September 12, 1962, Superintendent Wark of the Carlton Agency requested a

survey of a new reserve area for the Lac La Ronge Indian Band (Ex. P-10, p. 2960). On

September 27, 1962, McGilp requested a survey for several bands including the Lac La

Ronge Indian Band (Ex. P-10, p. 2969).

[183]

By this time the Federal and Provincial governments were engaged in

discussions. Thus on October 26, 1962, Jules D’Astous, Chief, Economic Development

Division for Indian Affairs, advised Mr. McGilp that Saskatchewan was considering the

proposals of Canada and went on to say:

. . .On September 18, Hon. H.G. Kuziak and Mr. J.W.

Churchman were in Ottawa and have discussed with our

Minister and Director the question of the calculation of land

entitlement on the basis of population. It was pointed out

during this meeting that our view is that in cases where

Indian Bands have no Reserves, the acreage to which they

are entitled must be calculated on the basis of population at

the time Reserves are being selected and set apart.

[Exhibit P-10, p. 2970]

- 109 -

Again reference was made to Indian Bands who have no Reserves.

[184]

Then on January 10, 1963, the Honourable Mr. Eiling Kramer, Minister of

Natural Resources, Saskatchewan, provided a memorandum to the provincial cabinet

wherein he reviewed certain legal advice and some of the history of the treaty land

entitlement question in the Province. As to the Lac La Ronge Indian Band he said this.

The Lac la Ronge Band had a population in 1909 of

526 which would have entitled it then to about 67,800 acres.

The band presently has 43,761 acres and is asking for an

additional 63,000 acres to complete the treaty entitlement.

[Exhibit P-10, p. 2976]

[185]

Subsequently, on April 4, 1963, Mr. Kramer wrote to Mr. R.A. Bell,

Minister of Citizenship and Immigration. The letter in its entirety reads as follows:

Over the past year or more there has been intermittent

correspondence between your Deputy Minister and mine

about selection of additional Indian Reserve lands in

Saskatchewan. We were originally asked to set aside for

Canada certain lands selected by the Band at La Loche.

Subsequently it was established that there were several other

Bands in northern Saskatchewan which apparently had never

selected Reserves.

My colleagues and I have given careful thought to the

various considerations attendant to this matter and have

arrived at the following conclusions -

(1)

The Province is prepared to meet its legal obligation

as far as the original treaty is concerned.

- 110 -

(2)

(3)

If the Band concerned would prefer to consider a cash

settlement or possibly some sort of housing program

in lieu of land, the Province is prepared to discuss this

possibility.

In selecting lands the following provisions will apply:

(a)

(b)

The known or estimated population at the date

of the treaty will be used in calculating land

entitlement.

A one-hundred foot public reserve will be

retained by the Province along lakes and

rivers.

(c)

(d)

(e)

Mineral rights will not be transferred to the

Band.

A right-of-way for future roads will be

provided in transfer agreement.

Federal Government will undertake, at its

expense, a monumented survey of the

boundaries, with cut lines and blazed trees

within three years of the date of the

agreement.

(4)

It would be preferable to have all Bands which are

entitled to select lands complete selection at this time.

Upon advice from you that these proposals are

acceptable, we will proceed with the next steps to facilitate

the setting aside of the lands.

[Exhibit P-10, p. 2980]

- 111 -

The proposals were not acceptable in part and the Honourable Mr. Guy Favreau, the new

Minister of Citizenship and Immigration, responded by letter dated May 13, 1963, and

inter alia said this.

. . .I may say that from the information available it is very

doubtful that the Indians are interested in any alternative

settlement, nor is the Department satisfied that a cash

settlement or a housing program would be particularly

beneficial to these Indians at this time. The chances of

recrimination are less if we comply with the terms of the

existing treaties. It is therefore proposed to deal with this

matter on the basis of a land settlement.

. . .

On reading these treaties in their full context, it is

obvious that the selection of land is to take place at some

future date on the basis of one square mile for a family of

five. This has always been interpreted to mean at the time of

the selection. Precedent is in favour of the Indians in this

regard. . . . We have definite figures as to the present

population, but such is not the case with regard to the

population at the time of the signing of the treaties. This

means that the settlement on the basis of the present

population is clean-cut and without the danger of disputes

arising.

[Exhibit P-10, p. 2988]

The provincial cabinet then modified its position as reflected in a memorandum of July

19, 1963, from Mr. Kramer to his Deputy Minister, Mr. J.W. Churchman.

At their meeting on July 16th, Cabinet agreed that the

Minister of Natural Resources, in co-operation with the

Committee on Indian Affairs, was to proceed with

- 112 -

discussions with Hon. Guy Favreau on the Indian Land

question on the basis of:

(a)

(b)

present population or last census figures;

that sufficient access to water be granted but not full

access on all frontage;

(c)

(d)

that mineral rights be transferred with the land;

that road questions be settled by compensation at a

future date when roads are needed;

(e)

that when land on water is requested, the depth of

parcel be at least twice the water frontage.

[Exhibit P-10, p. 2998]

[186]

Yet the Province appears to have continued to distinguish between those

Bands which had received no reserve lands and those which had received some. Thus

one finds the following in the report of October 8, 1963, prepared by Mr. A.H.

MacDonald, Director, Northern Affairs Branch, Department of Natural Resources.

A few of the Indian Bands have not been provided

with reserve land and under the transfer agreement of 1930

the Province is obligated to set aside such lands if and when

requested. There has been considerable correspondence on

this but for various reasons no direct transfer of land has

taken place. There is some difference of opinion on which

population figures to use (whether present or population at

Treaty time) to determine the amount owing to each band.

There is also a difference of opinion on both sides as to

whether Reserves which tend to segregate Indians and

isolate them from others are in tune with the time. The main

reasons given by Indian Affairs are that there is a legal

obligation to set up reserve lands in trust at any rate.

- 113 -

Bands for which no reserves have been established

are as follows:

Fond du Lac

-

present population 367.

Stony Rapids -

Lac la Hache

Lac la Loche

present population 339.

-

present population 201.

present population 122.

As you are aware, Treaties 8 and 10 stipulated 640

acres of land for each five members of a band. The James

Roberts Band at Lac la Ronge claims an additional 23,707

acres to be added to the reserve already established.

The Saskatchewan Government is prepared to make a

settlement in lieu of land in the form of cash or a housing

programme or a school programme or any other type of

programme which might be acceptable to the Indian

population. This suggestion was put forth by the Minister,

Mr. Kramer, and the Deputy, Mr. Churchman, during a

meeting in July with the Hon. Guy Favreau, Minister of

Citizenship and Immigration. Mr. Churchman reports as

follows:

“The Minister seemed to think that the

proposal had some merit and it was his

suggestion that it should be referred to the

new Federal - Provincial Committee which

has recently been set up or is in the process of

being finalized, which will discuss matters

pertaining to Indians, which are of interest to

the Provincial and the Federal authorities.”

[Exhibit P-10, p. 3020]

[187]

In an internal memorandum dated November 26, 1963, Mr. J.W.

Churchman, Deputy Minister advised Mr. MacDonald, Director of Northern Affairs, as

follows:

- 114 -

The government has approved the following criteria

as a basis on which to conduct negotiations with the Indian

Affairs Branch of the Department of Citizenship and

Immigration for meeting out commitments under the treaties

with respect to land for Indian Bands who have not as yet

claimed their land rights.

(1)

(2)

That the amount of land be based on the

present population or the last census figure.

That sufficient access be granted to water but

not full access on all frontage. We don’t grant

this to independent lessees and we think we

have a good case not to tie up the whole front

of a water body with an Indian reserve.

(3)

(4)

That mineral rights be transferred with the

land.

That the road question be settled by

compensation at a future date when the roads

are needed.

(5)

That when land on water is requested that the

depth of the parcel be at least twice the water

frontage.

As you will have noted from the copy of my letter to

Mr. McGilp, it is not possible for me to attend a meeting in

La Loche and I would appreciate if you would represent the

Department at that meeting.

The foregoing is the basis upon which you may

proceed with the negotiations.

[Exhibit P-10, p. 3028]

- 115 -

The memorandum refers to Indian Bands who have not as yet claimed their land rights.

The La Loche Band was one and following negotiations a settlement was achieved based

on that Band’s current population.

[188]

Attention then turned to the Lac La Ronge Indian Band. On March 31,

1964, Mr. J.G. McGilp, Regional Supervisor for Saskatchewan wrote to the Indian

Affairs Branch. He advised them of the La Loche settlement and then went on to say the

following.

I have been informed unofficially by Department of Natural

Resources officials that they would favour an early

allocation of reserve lands to the Fond du Lac, Stony Rapids,

Lac La Hache, and La Ronge Bands if the Indian Affairs

Branch can make arrangements with these bands as we had

at La Loche. I am fully aware of the dangers of exerting any

pressure whatsoever on the Indians and so pressure will be

avoided at all costs. The publicity give to the La Loche

allocation has prompted the La Ronge Band to invite me to a

Band meeting on April 2nd when I expect to receive from

them a request for approximately 60,000 acres of land to

which I believe they are entitled under Treaty No. 6.

[Exhibit P-11, p. 3075]

The next day, April 1, 1964, Mr. S.C. Read, a Field Officer wrote a memorandum to Mr.

McGilp. He outlined the history of the Lac La Ronge Indian Band and suggested that its

land entitlement be calculated using the “Bethune formula”, but using the 1964

population rather than that in 1961. He suggests this to be “only fair and just” taking into

account the delay (Ex. P-11, p. 3077).

- 116 -

[189]

Mr. McGilp and Mr. Wark met with the band council on April 2, 1964.

There was a discussion about land entitlement, but the specifics are not known. On April

6, 1964, Mr. McGilp wrote to Mr. Churchman urging the adoption of the compromise

formula using the 1964 population.

. . .It might, on this basis, be argued that the Lac La Ronge

Band has received 64.76% of their total reserve entitlement.

The balance, 35.24%, would entitle them to an additional

71,680 acres of land, this based on the population in April

1964 of 1,590 members.

In March, 1964, the Band Council invited me to attend a

meeting to be arranged in La Ronge for the purpose of

discussing land entitlement. On April 2nd Superintendent

Wark and I met the Council when the possibility of bringing

their claim before an Indian Claims Commission was raised.

I have advised the Council that before thinking of the

proposed Indian Claims Commission I should like to

approach you on their land entitlement.

The Indians have given me a marked map showing the areas

they would like to see set aside for their use. . . .

[Exhibit P-11, p. 3084]

However, the Province did not agree to the increased allotment. As a result, on April 20,

1964, Mr. McGilp advised the Indian Affairs Branch as follows:

At a meeting in Regina yesterday, Mr. Churchman informed

me that he is prepared to recommend the allocation of

63,330 acres of land to the La Ronge Band to extinguish

their land entitlement under Treaty 6. This was the figure

raised with him in our request of two years ago and he

believes that it only remains to clarify the actual parcel or

parcels of land. I informed him that subject to your approval

- 117 -

and that of the Indians, I accept the figure of 63,330 acres,

based on the band population of 1,404 when the request was

made in 1961.

Mr. Churchman and I then examined the parcels of land

marked on maps by the La Ronge Council on April 2nd,

1964, when I met with them at La Ronge.

Mr. Churchman has suggested that instead of the six separate

sites suggested by the Indians, one or two large parcels

should be chosen. I told Mr. Churchman I shall meet the

Indians again and tell them of his suggestion. I am asking

Superintendent Wark to arrange a meeting with La Ronge

Council members as soon as possible, either in Prince Albert

or La Ronge, so that I can advise them of the province’s

offer of 63,330 acres. I am sure the Indians will accept this

figure. At the meeting we shall also re-examine proposed

site or sites of the new reserve lands. I am fairly confident

that the Indians will be prepared to request two or three sites

instead of the six they suggested on April 2nd.

Tentatively a transfer of lands will be arranged in the next

few months based on these considerations:

(1)

The land entitlement will be based on 35.24%

of the band population of 1,404 as outlined by

us in 1961, and will comprise 63,330 acres.

(2)

(3)

(4)

Mineral rights will be transferred with the

lands.

Lands transferred will reach to the high water

mark.

This selection of lands makes up the full and

final land entitlement of the La Ronge Band

under Treaty No. 6.

[Exhibit P-11, p. 3091]

- 118 -

[190]

On May 8, 1964, the meeting with the band council took place. The

handwritten minutes of that meeting are here reproduced in their entirety.

Meeting held Kitsaki Hall May 8/64. Time 2. P.M.

Present - Mr. McGilp, Mr. Wark, Mr. Read, Mr. Smith, L.M.

Lovell.

Councillors Henry Charles, Abbey Halkett, John Morin,

John Cook, Isaiah Charles, Angus Merasty,

Daniel Cook.

Henry Charles elected Chairman.

Mr. McGilp - explained why scattered area’s picked could

not be excepted [sic].

Amount coming 63,330 acres.

Council all in favor of excepting [sic] the above figure for

settlement, (band resolution signed).

Council decided that a longer period should be had to select

land area’s + three area’s should be taken to satisfy Band

members at Stanley, La Ronge, + Little Red River

Reserve’s.

Band members at La Ronge agree to take their allotment No.

1 west of Egg Lake, number of acres 36 000, approximately.

Band members from L.R.R. Reserve request area north of

Christopher Lake marked on map No. 2 approximately 9,000

acres. (Township 53 range 26). This area chosen so Band

members in future will be able to move south due to decline

in fur + fish.

- 119 -

Band members from L.R.R. Reserve request area on west

side of Bittern Lake marked on map No. 2. Approximately

17.000 acres (Township 57 range 26)

Band members from Stanley request area north of Otter Lake

bridge consisting of 10,000 acres more or less.

No 1. = 36.000

No 2. = 17.000

No 3. = 10.000.

Band resolution to be included in minutes. No firm deal will

be made by Indian Affairs on land allotments before first

approaching the Lac La Ronge Band Council. Indian Affairs

will arrange a meeting with Band Council + Provincial

government. Mr. McGilp is now prepared to take the land

area request to the Provincial government.

Funds for travelling expenses can be obtained previous to

meeting.

Moved by Abbey Halkett meeting ajourn [sic]

John Morin

[Exhibit P-11, p. 3103]

A somewhat different version was subsequently typed up.

The meeting was called to order at 2:00 p.m. by the

chairman.

Mr. McGilp read correspondence from the Deputy Minister

of Natural Resources outlining why some of the land areas

previously selected were not available. The Deputy

Minister, also, suggested that his Department would prefer

them taking it all in one block, if possible.

- 120 -

It seemed apparent that the Province would be prepared to

agree on land entitlement based on 1961 population figures

when request was first made. This would amount to 63,330

acres.

The following resolution was passed unanimously:

“That we, the Councillors of the Lac La Ronge Band, agree

to accept 63,330 acres as full land settlement under Treaty

No. 6.

1.

The land entitlement will be based on 35.24% of the

Band population of 1,404 in 1961; the date we

requested land from the Province of Saskatchewan

will comprise 63,330 acres.

2.

3.

4.

Mineral rights will be transferred with the land.

Land transferred will reach to the high water mark.

This selection of land makes up the full and final land

entitlement of the Lac La Ronge Band under Treaty

No. 6.”

After some discussion the Council decided that they should

ask for three blocks of land in order to satisfy Band members

at Stanley, La Ronge and Little Red River. The following

areas were selected:

1.

Approximately 36,000 acres, West of Egg Lake in the

Sikachu, Sanderson, Morin Lake area.

2.

3.

Approximately 17,000 acres, West of Bittern Lake.

Approximately 10,000 acres, North of Otter Lake

bridge.

Mr. McGilp is now prepared to take the land area request to

the Provincial Government.

- 121 -

No firm deal will be made by Indian Affairs on land

allotments without first approaching the Band Council.

Indian Affairs will arrange a meeting with the Band Council

and Provincial authorities.

The meeting adjourned at 4:00 p.m.

[Exhibit P-11, p. 3102]

In time the stipulated acreage was set apart and the land entitlement of the Lac La Ronge

Indian Band was considered to be satisfied in full.

(2) Authority of The Band Council

[191]

In my opinion, the Band council did not have the requisite authority to

enact the resolution of May 8, 1964, and thereby commit the whole of the Band

membership to the settlement. That being so, the resolution was invalid.

[192]

I commence by quoting the following several sections from an early version

of the Indian Act, R.S.C. 1927, c. 98, in order to compare them with more recent

enactments.

158. If any band has a council of chiefs or councillors, any

ordinary consent required of the band may be granted by a

vote of a majority of such chiefs or councillors, at a council

summoned according to its rules, and held in the presence of

the Superintendent General or his agent.

. . .

- 122 -

176. On a day and at a place, and between the hours

prescribed by the Superintendent General, if the day fixed

for the same is within eight days from the date at which the

councillors were elected, the said councillors shall meet and

elect one of their number to act as chief councillor, and the

councillor so elected shall be the chief councillor.

177. The council shall meet for the despatch of business, at

such place on the reserve and at such times as the agent for

the reserve appoints, but which shall not exceed twelve times

or be less than four times in the year for which it is elected,

and due notice of the time and place of each meeting shall be

given to each councillor by the agent.

178. At such meeting of the council the agent for the

reserve, or his deputy appointed for the purpose with the

consent of the Superintendent General, shall

(a)

(b)

preside, and record the proceedings;

control and regulate all matters of procedure

and form and adjourn the meeting to a time named or

sine die;

(c)

report and certify all by-laws and other acts

and proceedings of the council to the Superintendent

General;

(d)

address the council and explain and advise the

members thereof upon their powers and duties.

2.

No such agent or deputy shall vote on any question to

be decided by the council.

179. Full faith and credence shall be given in all courts and

places whatsoever to any certificate given by such agent or

deputy under the provisions of paragraph (c) of the last

preceding section.

- 123 -

180. Each councillor present shall have a vote on every

question to be decided by the council, and such question

shall be decided by the majority of votes, the chief councillor

voting as a councillor and having also a casting vote, in case

the votes would otherwise be equal.

2.

Four councillors shall be a quorum for the despatch of

any business.

[193]

It will be seen that a general authority to act on behalf of the band was

conferred by s. 158 upon the Band council where such existed. The scheme for

conducting business was paternalistic and largely dominated by the agent of the

Superintendent General. In time the situation changed, although the conduct of business

meetings is still subject to supervision by government representatives.

[194]

In 1951 the above quoted sections were repealed and the Indian Act, S.C.

1951, c. 29, then contained these provisions which continue to the present time.

2.(3) Unless the context otherwise requires or this Act

otherwise provides

(a)

a power conferred upon a band shall be

deemed not to be exercised unless it is exercised

pursuant to the consent of a majority of the electors

of the band, and

(b)

a power conferred upon the council of a band

shall be deemed not to be exercised unless it is

exercised pursuant to the consent of a majority of the

councillors of the band present at a meeting of the

council duly convened.

. . .

- 124 -

79. The Governor in Council may make regulations with

respect to band meetings and council meetings and, without

restricting the generality of the foregoing, may make

regulations with respect to

(a)

(b)

(c)

presiding officers at such meetings,

notice of such meetings,

the duties of any representative of the Minister

at such meetings, and

(d)

the number of persons required at the meeting

to constitute a quorum.

Thus Parliament distinguished between a Band and a Band council and recognized that

the two had different authority and powers. A council could not act for a Band in all

instances which was a change from the earlier situation. Where the consent of a Band, as

opposed to a Band council, was required, it must come from a majority of the electors and

not just the Band councillors. By reason of s. 79, Department Officials still played a

significant role in the conduct of business meetings.

[195]

Another development was that Parliament saw fit to confer specific powers

upon a band council and to that end enacted the following sections.

80. The council of a band may make by-laws not

inconsistent with this Act or with any regulation made by the

Governor in Council or the Minister, for any or all of the

following purposes, namely,

(a)

to provide for the health of residents on the

reserve and to prevent the spreading of contagious

and infectious diseases,

- 125 -

(b)

(c)

(d)

the regulation of traffic,

the observance of law and order,

the prevention of disorderly conduct and

nuisances,

(e)

the protection against and prevention of

trespass by cattle and other domestic animals, the

establishment of pounds, the appointment of pound-

keepers, the regulation of their duties and the

provision for fees and charges for their services,

(f)

the construction and maintenance of water

courses, roads, bridges, ditches, fences and other

local works,

(g)

the dividing the reserve or a portion thereof

into zones and the prohibition of the construction or

maintenance of any class of buildings or the carrying

on of any class of business, trade or calling in any

such zone,

(h)

the regulation of the construction, repair and

use of buildings, whether owned by the band or by

individual members of the band,

(i)

the survey and allotment of reserve lands

among the members of the band and the

establishment of a register of Certificates of

Possession and Certificates of Occupation relating to

allotments and the setting apart of reserve lands for

common use, if authority therefor has been granted

under section sixty,

(j)

the destruction and control of noxious weeds,

the regulation of beekeeping and poultry

(k)

raising,

- 126 -

(l)

the construction and regulation of the use of

public wells, cisterns, reservoirs and other water

supplies,

(m) the control and prohibition of public games,

sports, races, athletic contests and other amusements,

(n)

the regulation of the conduct and activities of

hawkers, peddlers or others who enter the reserve to

buy, sell or otherwise deal in wares or merchandise,

(o)

the preservation, protection and management

of furbearing animals, fish and other game on the

reserve,

(p)

the removal and punishment of persons

trespassing upon the reserve or frequenting the

reserve for prescribed purposes,

(q)

with respect to any matter arising out of or

ancillary to the exercise of powers under this section,

and

(r)

the imposition on summary conviction of a

fine not exceeding one hundred dollars or

imprisonment for a term not exceeding thirty days or

both fine and imprisonment for violation of a by-law

made under this section.

. . .

82.(1) Without prejudice to the powers conferred by section

eighty, where the Governor in Council declares that a band

has reached an advanced stage of development, the council

of the band may, subject to the approval of the Minister,

make by-laws for any or all of the following purposes,

namely,

(a)

the raising of money by

- 127 -

(i)

the assessment and taxation of interests

in land in the reserve of persons lawfully in

possession thereof, and

(ii) the licencing of businesses, callings,

trades and occupations,

(b)

the appropriation and expenditure of moneys

of the band to defray band expenses,

(c) the appointment of officials to conduct the

business of the council, prescribing their duties and

providing for their remuneration out of any moneys

raised pursuant to paragraph (a),

(d)

the payment of remuneration, in such amount

as may be approved by the Minister, to chiefs and

councillors, out of any moneys raised pursuant to

paragraph (a),

(e)

the imposition of a penalty for non-payment of

taxes imposed pursuant to this section, recoverable on

summary conviction, not exceeding the amount of the

tax or the amount remaining unpaid, and

(f)

with respect to any matter arising out of or

ancillary to the exercise of powers under this section.

(2)

No expenditures shall be made out of moneys raised

pursuant to paragraph (a) of subsection one except under the

authority of a by-law of the council of the band.

Sections 80 and 82 are presently numbered as s. 81 and 83 in the Indian Act, R.S.C.,

1985, c. I-5, and have been since the revision in 1970. There has been no declaration

pursuant to s. 82 in respect to the Lac La Ronge Indian Band.

- 128 -

[196]

The role and authority of a band council was discussed in some depth in

Whitebear Band Council v. Carpenters Provincial Council of Saskatchewan et al., [1982]

3 W.W.R. 554 (Sask. C.A.). Commencing at p. 559, Mr. Justice Cameron said this.

As municipal councils are “creatures” of the

legislatures of the provinces, so Indian band councils are the

“creatures” of the Parliament of Canada. Parliament, in

exercising the exclusive jurisdiction conferred upon it by s.

91(24) of the B.N.A. Act to legislate in relation to “Indians,

and Lands reserved for the Indians”, enacted the Indian Act,

R.S.C. 1970, c. I-6, which provides -- among its extensive

provisions for Indian status, civil rights, assistance, and so

on, and the use and management of Indian reserves -- for the

election of a chief and 12 councillors by and from among the

members of an Indian band resident on an Indian reserve.

These elected officials constitute Indian band councils, who

in general terms are intended by Parliament to provide some

measure -- even if rather rudimentary -- of local government

in relation to life on Indian reserves and to act as something

of an intermediary between the band and the Minister of

Indian Affairs.

More specifically, s. 81 of the Act clothes Indian band

councils with such powers and duties in relation to an Indian

reserve and its inhabitants are usually associated with a rural

municipality and its council: a band council may enact by-

laws for the regulation of traffic, the construction and

maintenance of public works, zoning, the control of public

games and amusements and of hawkers and peddlers, the

regulation of the construction, repair and use of buildings,

and so on. Hence a band council exercises -- by way of

delegation from Parliament -- these and other municipal and

governmental powers in relation to the reserve whose

inhabitants have elected it.

I think it worth noting that the Indian Act

contemplates a measured maturing of self-government on

Indian reserves. Section 69 of the Act empowers the

- 129 -

Governor in Council to “permit” a band to manage and

spend its revenue moneys -- pursuant to regulation by the

Governor in Council -- and by s. 83 the Governor in Council

may declare that a band “has reached an advance stage of

development”, in which event the band council may, with

the approval of the minister, raise money by way of

assessment and taxation of reserve lands and the licensing of

reserve businesses. Until then, the band council derives its

funds principally from the government of Canada.

The Governor in Council has made no declaration

under s. 83 of the Act declaring the Whitebear Band Council

to have reached an advanced stage of development; however,

the Whitebear Band Council is the subject of an order of the

Governor in Council made pursuant to s. 69 of the Act, and

has been empowered to control, manage and expend in

whole or in part its revenue moneys in accordance with the

regulations made pursuant to this section, which require it to

establish, as it has done, an account with a recognized

financial institution, under the authority of three persons,

two of whom are members of the band. The chief and Mr.

Paul, both members of the council, were given this authority.

In addition to their municipal and governmental

function, band councils are also empowered by the Indian

Act to perform an advisory role, and in some cases to

exercise a power of veto with respect to certain activities of

the minister in relation to the reserve, including the spending

of Indian moneys, both capital and revenue, and the use and

possession of reserve lands.

Moreover, in light of the provisions of the single

contribution agreement and some of the terms of the

consolidated contribution agreement, it appears that in

practice Indian band councils from time to time act as agents

of the Minister of Indian Affairs and representatives of the

members of the reserve with respect to the implementation

of certain federal government programs designed for Indian

reserves and their residents -- a complementary role

consistent with their function.

- 130 -

In summary, an Indian band council is an elected

public authority, dependent on Parliament for its existence,

powers and responsibilities, whose essential function it is to

exercise municipal and government power -- delegated to it

by Parliament -- in relation to the Indian reserve whose

inhabitants have elected it; as such, it is to act from time to

time as the agent of the minister and the representative of the

band with respect to the administration and delivery of

certain federal programs for the benefit of Indians on Indian

reserves, and to perform an advisory, and in some cases a

decisive, role in relation to the exercise by the minister of

certain of his statutory authority relative to the reserve.

A similar position was adopted in Paul Band v. The Queen, [1984] 2 W.W.R. 540 (Alta.

C.A.) at p. 549.

Band councils are created under the Indian Act and

derive their authority to operate qua band councils

exclusively from that Act. In the exercise of their powers

they are concerned with the administration of band affairs on

their respective reserves whether under direct authority of

Parliament or as administrative arms of the minister. They

have no other source of power. Band councils are thus

within the exclusive legislative jurisdiction and control of

the Parliament of Canada over “Indians, and lands reserved

for Indians” assigned to it by s. 91(24) of the Constitution

Act, 1867, and such councils are thus immune to provincial

legislation.

[197]

There also is authority for the proposition that a representative action may

be brought on behalf of a Band by a chief or members of the Band. That very thing has

occurred in this case. Approval for the procedure is to be found in Mathias et al. v.

Findlay, [1978] 4 W.W.R. 653 (B.C.S.C.); Custer v. Hudson’s Bay Company

- 131 -

Developments Ltd. et al., [1983] 1 W.W.R. 566 (Sask. C.A.); A-G. Ontario v. Bear Island

Foundation (1985), 15 D.L.R. (4th) 321 (Ont. H.C.); and Oregon Jack Creek Indian Band

v. Canadian National Railway Co. (1989), 56 D.L.R. (4th) 404 (B.C.C.A.).

[198]

As I read s. 2(3) of the Indian Act there is a clear division of power between

the Band and the Band council. This was the situation that existed in 1964. To ascertain

the powers of a Band council one must look to s. 80 (now s. 81) of the Act. That section

enumerates the specific powers of the Band council and if a particular action does not fit

within any of the designated purposes, then it is ultra vires and of no effect. Any power

beyond s. 80, or any residual powers, rest with the Band and not the Band council.

[199]

Nowhere in s. 80, or elsewhere in the Act for that matter, is a Band council

authorized to settle or compromise any treaty land entitlement. That power must rest with

the Band itself and with its individual members. The land entitlement is amongst the

most significant treaty rights which an Indian enjoys. It probably is the most important

one and akin to a birthright. No Indian should be deprived of that entitlement, or even a

portion of it, without an opportunity to speak to the matter.

[200]

It therefore makes good sense that Parliament did not empower the Band

council to alienate or in any way compromise that right. Since the council does not have

the power, it must be vested in the Band and the council is required to act in accordance

with s. 2(3) of the Act and ascertain the wishes of the electors. Accordingly, I hold that

the band council was not empowered to pass the resolution of May 8, 1964. It follows

that the resolution is invalid and of no effect. As the electors of the Band did not

authorize the settlement, neither the Band nor its members are bound by it.

- 132 -

[201]

I note that for a surrender of reserve lands to be effective it is necessary

that, amongst other requirements, it be approved by a majority of the electors of a Band.

See ss. 37 to 41 of the Act. If a surrender of existing Reserve Lands requires that, it

would be strange indeed if the initial right to the Reserve Land could be forfeit by some

less stringent process. I do not believe it can be.

(3) Informed Consent

[202]

Having come to my stated conclusion about the authority of the Band

council, it is not necessary to address the topic of informed consent to the Band council

resolution. However, should I be in error in respect to the council’s authority, I will very

briefly state my conclusion as to whether the councillors were capable of giving an

informed consent to the resolution.

[203]

One of the councillors who signed the resolution was John David Cook and

he testified at the trial. His testimony was informative and a portion of it is worth

reproducing here. What follows is from the trial transcript commencing at p. 623, l. 18

and continuing to p. 627, l. 16:

Q

A

Mr. Cook, I want to start by showing you a band council

resolution that appears in Exhibit P-11 at page 3, 105, it’s dated

May the 8th, 1964. Have you ever seen that band council

resolution?

Yes, I seen that when they had the meeting over in La Ronge,

that was brought up to me then.

Q

A

Q

Okay. So we have showed that to you before --

Yeah.

-- and you recognized it?

- 133 -

A

Q

Yes.

And if I can point out to you, sir, a signature, the second one

from the top on the left-hand side --

A

Q

A

Q

A

Q

Uhum.

-- there is a name that looks like John Cook?

Yes, yes.

And is that your signature?

Yes, that’s the way I sign my name.

Okay. Do you recall the band council meeting where that

resolution was passed?

A

I don’t remember where, but the way the agent used to do, you

see, they had the councillors in La Ronge sign the paper like

this, like when I signed that I don’t know what it was, what this

thing was about.

Q

A

Q

A

Okay. You didn’t know what that was about?

No, no.

Okay. Do you know how much land an acre is?

Well, before I didn’t know, but I talked to one lawyer and I

asked him “what’s an acre” and they told me the footage size

of one acre. That’s later on, and not -- I didn’t know what an

acre was before.

Q

A

Okay. Would that lawyer have been me?

That’s right, we -- I don’t know, about three or four years ago,

hey.

Q

A

Okay. Okay.

I asked a lawyer “what’s an acre” so I know what’s an acre.

That’s all I know.

Q

Okay. Sir, a little further down the page are the words “full

and final settlement”, I believe?

- 134 -

A

Q

Uhum.

Do you see these words: “This selection of land makes up the

full and final land entitlement of the Lac La Ronge band under

treaty number 6"?

A

Q

A

Oh, uhum.

Now can you tell us what that sentence means to you?

I don’t know what the sentence means to me but, as I said

when I was interviewed before, I always thought that we had

plenty of land for the, like the reserves they used to call them,

and Nehemiah Charles used to tell me that we had lots of land

coming, so that’s where -- that’s as far as I know.

Q

A

Q

Okay.

I didn’t even know how much land we had coming.

Okay. Now do you recall anything about the meeting at which

-- the meeting on May the 8th, 1964, do you recall anything

about that meeting?

A

Q

No, not that I remember.

Let me show you -- and, My Lord, I’m showing him two pages

before, handwritten minutes appearing at page 3, 103 in the

same exhibit -- are you able to read that or do you want me to

read it for you?

A

Q

A

Q

You read it for me and then I will -- I’m not that good reader.

Okay. Sir, I’m going to read you some of these minutes, --

Uhum.

-- and you listen carefully, and then I will ask you if that helps

you remember anything else about the meeting, okay?

A

Q

Uhum.

“Mr. McGilp explained why scattered areas picked could not

be accepted. Amount coming 63,330 acres. Council all in

favor of accepting the above figure for settlement. Band

resolution signed. Council decided that a longer period should

- 135 -

be had to select land areas and three areas should be taken to

satisfy band members at Stanley, La Ronge, and Little Red

River reserves. Band members at La Ronge agree to take

these allotments: Number 1 west of Egg Lake, number of acres

36,000 approximately”, and it goes on from there. Does that

help you, at all, remember anything about the meeting?

A

Q

No, no, no.

Okay. Do you recall, when you were on the band council, ever

hearing anything about current population formula?

A

Q

No.

Do you recall ever hearing anything about date of first survey

formula?

A

Q

No.

Do -- the number that appears in the band council resolution

and the minutes is 63,330 acres. Do you know how that

number was arrived at?

A

No.

In my mind it is evident that Mr. Cook did not comprehend the nature and consequences

of the resolution. He did not appreciate what he was doing and was not capable of giving

an informed consent to the resolution which he signed.

[204]

The other six councillors who signed the resolution are now dead. Absent

their appearance at the trial, I cannot conclude that their knowledge of the circumstances

was as sparse as that of Mr. Cook. However, when I review the evidence I am not

persuaded that any attempt was made to inform the Band members, the councillors or

their lawyer about the alternative ways of calculating land entitlement. No information

was provided about negotiations with other bands. There is nothing which indicates that

the method of calculating the acreage to be allotted was explained to the councillors or

anyone else.

- 136 -

[205]

Rather, it seems evident that the government officials engaged in

discussions amongst themselves and eventually came to a position which was acceptable

to both levels of government. They next proceeded to tell the councillors that it was in

their best interests to agree and indicate their agreement by signing the resolution. In

short, events were orchestrated so that the outcome was a foregone conclusion. This is

not to say the officials acted dishonestly or with malice; it was more a matter of

misconstruing their role in the whole process.

[206]

The whole subject of land entitlement was and remains a complex subject.

To become knowledgeable about it would have taken considerable time and effort. Even

had the lawyer been present at the Band council meeting, I doubt he could have given

sound advice unless the entire record had been provided to him and I have no reason to

believe it had ever been made available to him.

[207]

Accordingly, I am satisfied that the consent given by way of the Band

Council Resolution was not an informed consent. It follows that the resolution is

ineffective and not binding upon the plaintiffs.

F. EXTINGUISHMENT OF LAND ENTITLEMENT

BY ORDERS-IN-COUNCIL

[208]

In time land was set aside for the Lac La Ronge Indian Band and the

allocations were approved by four Orders-in-Council dated September 17, 1968,

September 16, 1970, and two dated September 11, 1973. The total allocation was 63,385

acres. The Province of Saskatchewan submits that these Orders-in-Council had the effect

- 137 -

of extinguishing the Treaty land entitlement of the Lac La Ronge Indian Band. Canada

does not join in this submission.

[209]

The first Order-in-Council, which is dated September 17, 1968, provides as

follows:

WHEREAS the Minister of Indian Affairs and

Northern Development reports as follows:

That the Lac la Ronge Band of Indians

residing in the Province of Saskatchewan

joined Treaty No. 6 on February 11, 1889;

That the per capita land entitlement under

Treaty No. 6 is 128 acres;

That in 1897, 1909 and 1948 various parcels

of land were set aside for the Lac la Ronge

Band of Indians as partial settlement of their

treaty land entitlement;

That in 1961 it was determined on the basis of

their population the Lac la Ronge Band was

entitled to an additional 63,330 acres to

extinguish their treaty land entitlement;

That three acres were selected by the Indians

to constitute the 63,330 acres one of which has

now been surveyed and found to contain

32,640 acres;

That this land is now vested in Her Majesty in right

of Canada under Certificate of Title No. 67-PA-

12139, dated September 14, 1967; and

- 138 -

That the Lac la Ronge Band now wish this land to be

set apart for their use and benefit as Morin Lake

Indian Reserve No. 217.

THEREFORE, His Excellency the Governor General

in Council, on the Recommendation of the Minister of

Indian Affairs and Northern Development, pursuant to the

Indian Act, is pleased hereby to set apart as an Indian

Reserve, the lands described in Schedule ‘A’ hereto as

Morin Lake Indian Reserve No. 217 for the use and benefit

of the Lac la Ronge Band of Indians.

[Exhibit P-12, p. 3456]

The other three Orders-in-Council are No. P.C. 1970-1613, dated September 16, 1970;

No. P.C. 1973-2676, dated September 11, 1973; and No. P.C. 1973-2677, dated

September 11, 1973 (Exhibit P-12, p. 3577 and P-13, p. 3792 and p. 3806). All are

worded in a manner similar to the first and two contain the phrase “. . . to extinguish their

treaty land entitlement;” as contained in the Order quoted above. The Province points to

this as extinguishing any future Treaty land entitlement. I find that I do not agree.

[210]

The law is clear that Parliament, prior to April 17, 1982, could by

legislation extinguish a Treaty right. However, for extinguishment to be effective, the

intent of Parliament to effect that object must be clear and plain. See Calder v. Attorney-

General of British Columbia, [1973] S.C.R. 313; R. v. Sparrow, [1990] 1 S.C.R. 1075;

and R. v. Gladstone, [1996] 2 S.C.R. 723. I do not believe the required intent is manifest

in the described Orders-in-Council.

[211]

It is significant that the reference to extinguishment of treaty land

entitlement is contained in the preamble of each document. That preamble simply

- 139 -

summarizes what the Minister reported and what led up to the Order-in-Council. It may

well have been that the Minister believed the entitlement was extinguished and that may

have persuaded the Governor General in Council to enact the Order, but that body did not

speak about extinguishment.

[212]

The operative portion of each Order-in-Council was that portion contained

at the end where it is stipulated that certain lands are set apart as an Indian Reserve. In

that portion, which sets out what the Governor General in Council was actually bringing

about, there is no mention of extinguishing Treaty land entitlement. Had that been the

goal or purpose, surely it would have been so stated. It would have been an extremely

simple matter to move the words of extinguishment to the end of each order or to repeat

those words at the end.

[213]

In Driedger On The Construction of Statues, 3rd ed., (Toronto:

Butterworths, 1994) at p. 259, the following is said about the preamble in legislation.

The primary function of a preamble is to recite the

circumstances and considerations that gave rise to the need

for legislation or the ‘mischief’ the legislation is designed to

cure. However, the recitals constituting a preamble may

mention not only the facts which the legislature thought were

important but also principles or policies which it sought to

implement or goals to which it aspired.

Taking guidance from this and upon reading the Orders-in-Council, I have no hesitation

in concluding that the Governor General in Council did not intend to address the subject

of extinguishing Treaty land entitlement and in fact did not do so.

- 140 -

[214]

In addition, had the Governor General in Council purported to do

otherwise, it would have acted in excess of its authority. There is no question but that

Parliament can delegate authority, but when exercised it must be within that which is

authorized by the enabling legislation. The Indian Act, supra, s. 73(3), states that “the

Governor General in Council may make orders and regulations to carry out the purposes

and provisions of this Act.” In that same section there are several instances where

regulations are authorized. Nowhere is there authorization to extinguish Aboriginal

rights. Considering the nature of those rights and the implications of dealing with them, it

is not difficult to understand why Parliament would retain unto itself full authority, with

its attendant obligations, to deal with those rights.

[215]

For the reasons stated I reject the submission that the Treaty land

entitlement of the Lac La Ronge Indian Band was extinguished by the enactment of the

described Orders-in-Council.

G. RESERVE CREATION

[216]

The plaintiffs claim entitlement to certain lands located at Candle Lake and

within the present townsite of La Ronge, Saskatchewan. It is alleged that these lands

were long ago set aside as Indian Reserves and remain such to the present time. In order

to adjudicate this claim, it is necessary to first determine what is required to bring an

Indian Reserve into existence. My deliberations have focused on the process utilized in

the Prairies for that is the region which falls within the ambit of the numbered treaties and

more particularly Treaty No. 6.

[217]

From my review I hold the view that there is no specific procedure or single

process which alone can create an Indian Reserve. Rather, the components of the process

- 141 -

may well vary from time to time, but in each instance the result will be the same. The

one constant is that the Crown must intend to create an Indian Reserve and take steps to

carry out that intention. Included in the latter will always be a demarcation of the land

and almost invariably consultation in advance with the Indians about the location of the

land. Thus, the question of whether a reserve was created is a factual one and in each

case one must look to the prevailing circumstances to find the answer.

[218]

This accords with the following remarks of Richard Bartlett in his article

The Establishment of Indian Reserves On The Prairies, [1980] 3 C.N.L.R. 3. At p. 7 he

discusses the case of In re Bosworth and Corporation of Gravesend, [1905] 2 K.B. 426

(C.A.) and then writes:

The decision emphasizes the need in determining if land has

been “set apart” as an Indian reserve to be concerned with

the practical and factual distinction or separation of a tract of

land from another rather than the formalities attaching to

such.

[219]

A discussion about Reserve creation should begin with the treaty itself

which here is Treaty No. 6. The relevant portion of that document reads as follows:

And Her Majesty the Queen hereby agrees and undertakes to

lay aside reserves for farming lands, due respect being had to

lands at present cultivated by the said Indians, and other

reserves for the benefit of the said Indians, . . . in manner

following, that is to say: —

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

- 142 -

thereof as to the locality which may be found to be most

suitable for them;

There clearly was a commitment to lay aside Reserves. There equally was a commitment

that a person would be designated to carry out the task and that there would be

consultation. However, much was left unsaid which brought about an undefined and

flexible process.

[220]

Nothing was said about how the suitable person would be selected or how

that person would carry out the work. It is not stated whether the suitable person, once

appointed, would enjoy absolute authority or would be required to obtain approval for the

actual setting apart of a Reserve. In fact, I believe either could occur. While there was to

be consultation, which undoubtedly was to be in good faith, that consultation was to

relate to locality and not to specific lands. In practise it did frequently deal with the

latter, but the Indians did not have an absolute right to select a particular tract of land.

What the treaty did was to create a basic approach within which it was left to the parties

to work out what was required to achieve a mutually satisfactory result.

[221]

Lieutenant Governor Morris said little about how Reserves would be

created, but what he did say suggests that it would be an informal process. In respect to

Treaty No. 3 he said:

. . .I have further to add, that it was found impossible, owing

to the extent of the country treated for, and the want of

knowledge of the circumstances of each band, to define the

reserves to be granted to the Indians. It was therefore agreed

that the reserves should be hereafter selected by officers of

the Government, who should confer with the several bands,

and pay due respect to lands actually cultivated by them. . . .

- 143 -

[Morris - p. 52]

He later spoke about surveyors.

Chief [of Fort Francis] — “It will be as well while we are

here that everything should be understood properly between

us. All of us — those behind us — wish to have their

reserves marked out, which they will point out, when the

time comes. There is not one tribe here who has not laid it

out.”

Commissioner Provencher. . . — “As soon as it is convenient

to the Government to send surveyors to lay out the reserves

they will do so, and they will try to suit every particular band

in this respect.”

Chief — “We do not want anybody to mark out our reserves,

we have already marked them out.”

Commissioner — “There will be another undertaking

between the officers of the Government and the Indians

among themselves for the selection of the land; they will

have enough of good farming land, they may be sure of

that.”

[Morris - p. 70]

[222]

He then writes as follows as part of the negotiations leading up to the

signing of Treaty No. 6.

“I am glad to know that some of you have already

begun to build and to plant; and I would like on behalf of the

Queen to give each band that desires it a home of their own;

I want to act in this matter while it is time. The country is

- 144 -

wide and you are scattered, other people will come in. Now

unless the places where you would like to live are secured

soon there might be difficulty. The white man might come

and settle on the very place where you would like to be.

Now what I and my brother Commissioners would like to do

is this: we wish to give each band who will accept of it a

place where they may live; we wish to give you as much or

more land than you need; we wish to send a man that

surveys the land to mark it off, so you will know it is your

own, and no one will interfere with you. What I would

propose to do is what we have done in other places. For

every family of five a reserve to themselves of one square

mile. Then, as you may not all have made up your minds

where you would like to live, I will tell you how that will be

arranged: we would do as has been done with happiest

results at the North-West Angle. We would send next year a

surveyor to agree with you as to the place you would like.

. . .

“But understand me, once the reserve is set aside, it

could not be sold unless with the consent of the Queen and

the Indians; as long as the Indians wish, it will stand there

for their good; no one can take their homes.

[Morris - pp. 204-205]

He went on to say that the Indians would have some flexibility in their choice, but the

survey would seemingly end this.

“You can have no difficulty in choosing your

reserves; be sure to take a good place so that there will be no

need to change; you would not be held to your choice until it

was surveyed.

[Morris - p. 218]

- 145 -

[223]

In the end only two things mattered. The first was that Reserves be set

apart. The second was that there be an intention that the land set apart be constituted a

Reserve. How that result was achieved is of secondary importance.

[224]

There is no legislation which speaks to the establishment of an Indian

Reserve. However, legislation does provide some assistance in ascertaining what is the

correct process. The oldest statute to which I have reference is The Act providing for the

organisation of the Department of the Secretary of State of Canada, and for the

management of Indian and Ordnance Lands, S.C. 1868, c. 42. The Act did not contain

any provision for Reserve creation, but it did recognize the fact of and presence of

Reserves. Section 6 provided:

All lands reserved for Indians or for any tribe, band or body

of Indians, or held in trust for their benefit, shall be deemed

to be reserved and held for the same purposes as before the

passing of this Act, but subject to its provisions; and no such

lands shall be sold, alienated or leased until they have been

released or surrendered to the Crown for the purposes of this

Act.

[225]

In 1876 the first Indian Act was enacted, being S.C. 1876, c. 18. In s. 3.6

the term “reserve” was defined.

The term “reserve” means any tract or tracts of land set apart

by treaty or otherwise for the use or benefit of or granted to a

particular band of Indians, of which the legal title is in the

Crown, but which is unsurrendered, and includes all the

trees, wood, timber, soil, stone, minerals, metals, or other

valuables thereon or therein.

- 146 -

This continued as the definition in the Indian Act of 1927 (R.S.C. 1927, c. 98) and it

remained unchanged until 1951 when it was abbreviated to read as follows in The Indian

Act, S.C. 1951, c. 29, s. 2(1)(o).

“reserve” means a tract of land, the legal title to which is

vested in His Majesty, that has been set apart by His Majesty

for the use and benefit of a band;

The definitions clearly recognize that Reserves could be created by various means. It

could be “by treaty or otherwise”. What is essential in the definition is that the land be

“set apart”.

[226]

Down through the years the Indian Act has undergone many changes. This

happened in 1880, 1886, 1906, 1927 and 1951. In each instance Parliament increased the

Department’s involvement and control in the affairs within Indian Reserves. Detailed

attention was given to many matters. Despite this careful attention to various matters, it

was obviously felt that there was no need to change the process whereby Reserves came

into existence. Parliament was content with the informal and flexible process which had

been employed in the past and was prepared to have it continue into the future. The

process worked and there was no need to change it.

[227]

While not extensive, there is jurisprudence on the subject. In the case of

The St. Catherines Milling and Lumber Company v. The Queen, On The Information Of

The Attorney General For The Province Of Ontario, (1887) Vol. XIII S.C.R. 577, the

issue was whether title to certain lands rested with the Province of Ontario or the

Dominion of Canada. It was argued that title had been in the Indians of the region and

- 147 -

acquired from them by Canada. The argument was rejected on the basis that the lands

had not been reserved for the Indians. At p. 641, Mr. Justice Henry said this.

A question of importance arises under the

confederation act. By one of the sections of that act all lands

reserved for the Indians were placed under the control of the

Dominion Parliament. We must then inquire what was

reserved for them. There are many ways of reserving real

estate. It may be reserved by will, by deed, by proclamation,

and so on, but it requires an act of some description. As

regards the wild lands inhabited by nomadic tribes of

Indians, by what process is it shown that they were ever

reserved by anybody? They are in the same state as they

were at the conquest. We find that several large tracts of

land were at different times specially reserved for the use of

Indian tribes, and have been held in trust for them by the

Government. When the Indians did not require them they

were sold and the money held for their use. There was

another class. In many of the treaties by which the Indians

gave up their right to portions of the country certain portions

of the territory they were about to transfer were reserved for

them in the treaties themselves. When, therefore, the

Imperial act was passed there was sufficient material for the

operation of the clauses relating to lands “reserved for the

Indians.”

But, I would ask, how can it be said that the lands in

question in this suit were ever reserved? They were always

the property of the crown. The Indians had the right to use

them for hunting purposes, but not as property the title of

which was in them. Thus, then, we have these words in the

statute explained by the knowledge we have of certain lands

being expressly reserved for the Indians.

Reservation cannot be effected by implication; there

must be some act.

- 148 -

The words in the Imperial statute refer only to lands

expressly reserved, and the other wild lands in the country

are not affected by the provision referred to.

There are two things which I consider important about this decision. First the court saw

no need to define the process by which a Reserve is established. Second, there is a clear

statement that there must be a positive act to establish a Reserve.

[228]

Another early decision worthy of mention is Esquimalt and Nanaimo

Railway Co. v. McLellan et al., [1918] 3 W.W.R. 645 (B.C.C.A.). The Province of

British Columbia granted to the Dominion of Canada a tract of land but it did not include

Indian Reserves. Canada then granted the lands to the railway company. McLellan

obtained from the railway company a grant of the surface of a part of the lands and from

the province a lease of the coal under that surface. The lease was granted because the

provincial authorities considered the land to be an Indian Reserve and that it had not

passed to Canada. At trial an index of government reserves was produced and the page

containing the subject lands also had the written words “These reserve are available for

Indian settlements, schools, parks or other public purposes”. The railway company

successfully attacked the validity of the lease both at trial and on appeal.

[229]

After noting that the lands were never used for school purposes, Macdonald

C.J.A. went on to say this at p. 649.

Then, can the inference be drawn that they were

Indian reserves or settlements from the words cited from the

said book? Indian reserves consist of lands conveyed or

assigned to the Crown in right of the Dominion for the use of

the Indians. To say that lands are available for Indian

reserves does not make them Indian reserves within the

- 149 -

construction which I would place upon the language of the

grant when it says that the grant shall not include Indian

reserves or settlements. It is not suggested, and there is no

evidence from which such an inference can be drawn, that

this land was ever used as an Indian reserve or settlement; at

most, if any value is to be attached to said index book as

evidence in the case, the land in question was merely

designated as land fit to be made an Indian reserve or

settlement. It is, however, in my construction of the deed,

not such lands, but de facto Indian reserves or settlements

which are excepted.

I consider this to be authority for the proposition that there must be some manifestation of

an intention to create an Indian Reserve.

[230]

The authority of the federal government to create Indian Reserves was

described by Mr. Justice Mahoney in Town of Hay River v. The Queen (1980), 101

D.L.R. (3d) 184 (F.C.T.D.) at p. 186.

The authority of the Governor in Council under para. 19(d)

of the Territorial Lands Act to “set apart and appropriate

such areas or lands as may be necessary to enable the

Government of Canada to fulfil its obligations under treaties

with the Indians” is not the source of authority to set apart

Crown lands as a reserve in that part of Canada to which the

Act applies, i.e., the Yukon and Northwest Territories. It is,

rather, the authority to create a land-bank for that purpose.

The Indian Act defines “reserve” but nowhere deals with the

creation of a reserve. Notwithstanding the words “pursuant

to the Indian Act” in para. (2) of the Order in Council, the

authority to set apart Crown Lands for an Indian reserve in

the Northwest Territories appears to remain based entirely

on the Royal prerogative, not subject to any statutory

limitation. . . .

- 150 -

[231]

Then there is the more recent case of Canadian Pacific Ltd. v. Paul, [1988]

2 S.C.R. 654. In that case the issue was whether the railway company or an Indian Band

controlled land on which a crossing was located. It was held that at one time the land was

Reserve land, but in the particular circumstances that status had changed. As a result, the

railway company was entitled to a permanent injunction. However, in the course of the

judgment by the court these remarks were made at p. 659.

The trial judge found that, while there is no evidence of any

formal allotment of the lands, it appears clear that the lands

so acquired were, on acquisition, allotted de facto to the

Meductic Maliseet Tribe whose members were the ancestors

of those Indians now comprising what is known as the

Woodstock Band.

It appears that the court approved that finding and agreed that no formality was essential

to the creation of a Reserve for these remarks were made at p. 675.

It is clear that by virtue of the 1851 deed the land in question

was vested in the Crown. Shortly thereafter it became an

Indian reserve. The trial judge placed some importance on

the fact that there was no formal allocation of the land as a

reserve prior to Confederation. It seems to us, however, to

be somewhat inconsistent to demand such formality for

allocation as a reserve while at the same time accepting the

lack of a “formal grant” of land to the Woodstock Railway

Company. We are of the view that it can be accepted that

the land in question was part of the Woodstock Reserve

before Confederation.

[232]

A most recent case of interest is R. v. Nikal, [1996] 1 S.C.R. 1013. The

central issue was whether a certain river was part of an Indian Reserve. That has nothing

- 151 -

to do with the case before me, but the judgment is of interest in that it contains comments

about instructions to agents of the Crown. In that instance instructions were given to

Commission O’Reilly and at p. 1039 of the judgment Mr. Justice Cory said the following

in respect to those instructions.

The instructions referred to were also given to Indian

Commissioners in Manitoba, Keewatin and the Northwest

Territories, and they state that the Commissioners are to

ascertain what fishing grounds should be reserved in order

that application might be made to the Department of Marine

and Fisheries to have those areas secured for the use of the

Indians. These instructions reveal that Commissioner

O’Reilly was not given the authority to allot an exclusive

fishery, and that the most he could do was make

recommendations.

[Emphasis in original]

In the end the court held that the Indians had not been granted exclusive fishing rights by

O’Reilly because he was not authorized to make such a grant.

[233]

By analogy, when determining whether a Reserve was established a court

must attempt to ascertain the instructions which preceded the acts of creation. Here one

can look to the general practice of the Crown. On this topic Mr. Justice Cory made these

comments in R v. Nikal, supra, at p. 1029.

In this case much has been said as to the general

practice of the Crown in allocating reserves to native

peoples. Evidence as to a general practice may be

particularly helpful in determining the scope or extent of

- 152 -

native rights. The relevant evidence is sometimes lost and

that which remains must be carefully placed in context so

that its true significance is neither distorted nor lost.

The historical evidence as to the standard practice of

the Crown can be conveniently divided into pre- and post-

Confederation periods.

This evidence, taken from

documents in the public archives, demonstrates that in both

periods there was a clear and specific Crown policy of

refusing to grant, in perpetuity, exclusive rights to fishing

grounds. The Crown would, however, grant exclusive

licences or leases over particular areas for a fixed period of

time. Obviously this practice was far from an absolute

assignment of a fishery right.

[Emphasis in original]

A like approach and result is to be found in the companion case of R v. Lewis, [1996] 1

S.C.R. 921.

[234]

The last Canadian decision to which I make reference is Ross River Dena

Council Band v. Canada, [1998] 3 C.N.L.R. 284 (Y.S.C.). The matter is under appeal to

the Court of Appeal. In that case the issue was whether a tobacco tax was payable. The

answer depended on whether the tobacco products were being sold on land which was an

Indian Reserve. The court answered in the affirmative.

[235]

The facts on that issue were that on November 27, 1962, the Superintendent

of the Yukon Indian Agency asked for the subject land to “be used for the Ross River

Indian Band village site.” The request was granted on January 26, 1965 and appeared to

have been “reserved by notation in departmental records.” At p. 293 of the report Justice

Maddison says this.

- 153 -

The Indian Act never has provided a method of

creating a reserve. It follows that reserves have been

“established in many different ways and several methods

now appear to be recognized as having validly set apart land

for the use and benefit of Indians.”: Jack Woodward, Native

Law, 1996, p. 231. And as La Forest, G.V. said in Natural

Resources and Public Property under the Canadian

Constitution, University of Toronto Press, at p. 121:

In the areas not reserved by the proclamation

[of 1763], reserves were established under

many different types of authorities and

instruments.

In concluding that a reserve had been created Justice Maddison made these observations

commencing at p. 293.

The area reserved on January 26, 1965, was a tract of

land that was (and is) vested in her Majesty. It had been

applied for, for the use and benefit of a band: the Ross River

Band. It was applied for, for a permanent use: a village site.

That constitutes “use and benefit of a band” as in the Indian

Act definition of “reserve”. The active words of the

document reserving the land are as close to the wording of

the statue as all but one of the four admitted Yukon Reserves

for which the Court has been provided the wording. The

public servants who put the setting-aside in process were Her

Majesty’s agents. The only thing in the way of the land

being accepted as a reserve is the public servants’

philosophy of integration which resulted in bureaucratic

pigeonholing. That erects an unwarranted obstacle to the

establishment of reserves which is not required by the

statutory definition, is unfair and unjust to the Indian Band.

- 154 -

[236]

I now turn to American jurisprudence on the subject for it is informative

and helpful. In Minnesota v. Hitchcock 185 U.S. 373 (1902), the court had to decide

whether a parcel of land was an Indian Reserve. In concluding that it was Brewer J. said:

. . .Prior to the treaty of October 2, 1863, the boundaries of

the lands occupied by the Chippewa Indians had been

defined by sundry treaties, and by that treaty a large portion

of the lands thus occupied were ceded by the Indians; that is,

the Indians ceded to the United States all their interest and

right of possession. While there was no formal action in

respect to the remaining tract, the effect was to leave the

Indians in a distinct tract reserved for their occupation, and

in the same act this tract was spoken of as a reservation.

Now, in order to create a reservation, it is not necessary that

there should be a formal cession or a formal act setting apart

a particular tract. It is enough that from what has been done

there results a certain defined tract appropriated to certain

purposes. Here the Indian occupation was confined by the

treaty to a certain specified tract. That became, in effect, an

Indian reservation. . . .

[237]

A similar issue arose in Northern Pacific Railway Company v. Wismer 246

U.S. 283 (1918). In that case lands would vest in the railway company upon the filing of

a plat and this was done on October 4, 1880. The respondent argued that the lands in

dispute had not vested because they were part of the Spokane Indian Reservation when

the plat was filed.

[238]

As to the reservation, it happened that on August 16, 1877, an Indian

Inspector entered into a treaty with the Spokane Tribe. The treaty provided that the

Indians’ title to their traditional lands was extinguished and set out lands which were to

constitute their Reservation. This was reported by the agent and his superiors approved.

The land was formally set aside and reserved by Executive Order of the President on

- 155 -

January 18, 1881, some three months after the filing of the plat. The land was used as a

Reservation until 1910.

[239]

It was held that the Reservation existed prior to the filing of the plat. The

agent had been authorized to negotiate the treaty and his actions were approved no later

than 1878. The Executive Order was not required to create the Reservation, but simply

gave formal sanction to what had been done before.

[240]

In Sac and Fox Tribe Of The Mississippi In Iowa and United States v. Les

Licklider 576 F. 2d. 145 (1978) the court again had to decide whether a Reservation had

been created. The court held that the lands were a de facto Reservation and stated that no

formal act was required to set apart a Reservation. The lands had been occupied by the

Tribe for many years and the Government had treated the lands as a Reservation. As to

the last, the Government had sent an Indian Agent to reside on the Reservation, made

treaty annuity payments there and constructed a boarding school at the location. Thus the

court looked to the intention of the government as disclosed in the surrounding

circumstances. Several other decisions adopt that same approach. See Alaska Pacific

Fisheries v. United States, 248 U.S. 78 (1918); United States v. Walker River Irrigation

District, et al., 104 F. 2d. 334 (1939); Tee-Hit-Ton Indians v. United States, 348 U.S. 272

(1955); and Sokaogon Chippewa Community v. Exxon Corporation, 805 F. Supp. 680

(1992).

[241]

Finally, it is recognized that the plaintiffs attach significant importance to

and place considerable reliance upon the opinions of Professor Bartlett. His ultimate

conclusion about reserve creation is found at the very end of his article, The

Establishment of Indian Reserves On The Prairies, supra.

- 156 -

It is concluded that a reserve is created within the

meaning of the Indian Act upon its being “set apart” in

accordance with the obligation imposed by treaty and the

Natural Resources Transfer Agreement. “Setting apart” is

suggested to consist of the survey and selection of the lands,

following such consultation with the Indians as is required

by treaty. The obtaining of provincial concurrence pursuant

to the Natural Resources Transfer Agreement is also, of

course, required in the establishment of reserves after 1930.

The treaty language, negotiations, and departmental practice

and usage all demand such a conclusion. It recognizes the

judicial concern with the de facto setting apart of land. As

Mr. Justice Clarke declared in the United States Supreme

Court:

. . . [T]o hold that, for want of a formal

approval by the Secretary of the Interior, all of

the conduct of the Government and of the

Indians in making and ratifying and in good

faith carrying out the agreement between

them. . . is without effect, would be to

subordinate the realities of the situation to

mere form.

The quotation is from the case of Northern Pacific Railway v. Wismer, supra, at p. 288. I

substantially agree with Professor Bartlett. We differ in that I would qualify the effect of

the survey to take into account the surrounding circumstances. In many instances, if not

most, the qualification would not effect the outcome.

[242]

In summary, I hold as follows. There is no single method to create a

Reserve. However, there are certain things which are essential. The Crown must make a

deliberate decision to establish a Reserve; there must be consultation with the Indians;

there must be a clear demarcation of the lands; and there must be some manifestation by

the Crown that the lands will constitute an Indian Reserve.

- 157 -

[243]

The position of the plaintiffs is that if there is consultation and demarcation,

whether by survey or reference to the township plan, then a Reserve comes into existence.

In my opinion, that approach is too broad and simplistic. There were times when this

happened and a Reserve did result. There were instances when the surveyor was

instructed to create the Reserve. No further approval was needed. There were other

instances when the instructions were not all inclusive and the Crown did not expressly

give its approval, but by its silence and subsequent attitude the Crown manifested its

acquiescence in the land being constituted a Reserve. Then there were other instances

when the instructions clearly limited the authority. In such a case a survey in itself was

not sufficient.

[244]

It is my conclusion that the land was not “set apart” until the Crown treated

it as such. That could happen in more than one way, including an absence of protest.

[245]

As best I can make out, on the prairies all of the Reserves are the subject of

an Order-in-Council. However, I do not consider such Orders to be an essential part of

the process of establishing a Reserve. There are many instances, including several

involving the Lac La Ronge Indian Band, where Reserves were marked out, accepted as

such by the Crown, and only many years later confirmed by Orders-in-Council.

However, in the interim they were viewed by all as Reserves and accordingly were

validly constituted Reserves. The Orders-in-Council were no more than an administrative

act which confirmed or clarified what already was a reality.

[246]

I recognize that the foregoing is most evident prior to 1893. It has been

argued that subsequently the wording of Orders-in-Council would suggest that it was the

Orders themselves which set apart the Reserve lands. I do not accept this view as it

- 158 -

constitutes a qualitative change in the Orders themselves and I can find no basis for it in

either legislation or judicial pronouncement. Furthermore, in most instances it does not

accord with reality and the ongoing practices.

[247]

With the foregoing in mind, I now turn my attention to the plaintiffs’ claim

that Reserves were created at Candle Lake and La Ronge. Here, as was the situation in

respect to the interpretation of the Treaty, the evidence was copious and I have

considered the whole of it. However, in my review which follows both as to Candle

Lake, and later as to the La Ronge school lands, I have set out only what I consider

necessary to convey to the reader what occurred in each instance. This approach was

adopted after more than one false start and did not avoid a very lengthy document,

although some reduction was achieved.

H. CANDLE LAKE LANDS

[248]

The issue here is whether lands at Candle Lake in Saskatchewan were set

aside as an Indian Reserve for the Lac La Ronge Indian Band. The plaintiffs submit that

this was done in 1931 and as the lands have never been surrendered, the Reserve still

exists today. The defendants submit that while consideration was given to creating a

Reserve in the vicinity of Candle Lake, no lands were actually set aside so as to create a

Reserve.

(1) The Facts

[249]

On March 24, 1927, Order-in-Council P.C. No. 524 set aside a large tract of

land for the Prince Albert National Park. At the same time it withdrew certain other lands

from disposition under the Dominion Lands Act pending an investigation into their

- 159 -

suitability for inclusion in the Park. These included lands around Candle Lake. Almost

immediately concerns were expressed by a number of people about the negative impact

the Park would have on the Indians’ opportunity to hunt and fish. Letters were written by

W.M. Graham, Indian Commissioner at Regina, Saskatchewan, J.D. McLean, Assistant

Deputy and Secretary Department of Indian Affairs, Duncan Campbell Scott, Deputy

Superintendent General of Indian Affairs and Reverend George E. Lloyd, Bishop of

Saskatchewan (Ex. P-4, pp. 1105-1116).

[250]

At about the same time Commissioner W.M. Graham was also pressing to

have additional lands set aside for the Lac La Ronge and Stanley Bands in an area

adjacent to Little Red River Reserve 106A. By letter dated August 2, 1927, Mr. A.F.

MacKenzie, Acting Assistant Deputy and Secretary, Department of Indian Affairs,

instructed Mr. H.W. Fairchild to cruise the lands in the vicinity of Little Red River Indian

Reserve 106A (Ex. P-4, p. 1117). Mr. Fairchild was not a Dominion Lands Surveyor, but

was an engineer employed by the Department of Indian Affairs and did survey work in

respect to Reserves in Western Canada.

[251]

By letter dated February 8, 1928, Mr. Fairchild reported to Mr. McLean on

his cruise and recommended that sixteen sections of land, approved by the Chief and

Headmen, be added to Little Red River Indian Reserve 106A (Ex. P-4, p. 1126). By letter

of that same date, Mr. J.B. Harkin, Commissioner, Canadian National Parks, Department

of the Interior, wrote to Duncan Campbell Scott. He suggested that the Montreal Lake

Reserve be surrendered and replacement lands be set aside contiguous to the Little Red

River Reserve and in the vicinity of Candle Lake.

A suggestion which has been made is to set aside any

areas available contiguous to the Little Red River Reserve

- 160 -

and to add them to that Reserve and in addition to obtain a

reserve on the shores of Candle Lake. This suggestion

appears to me to be a good one as those Indians who wish to

farm could do so on the Little Red River Reserve and those

Indians who wish to live in an area providing good hunting,

trapping and fishing could take up their abode on the Candle

Lake Reserve. I understand that Candle Lake Provides [sic]

excellent fishing and it is situated in one of the best hunting

and trapping districts in Northern Saskatchewan.

[Exhibit P-4, p. 1124]

[252]

On March 30, 1928, Mr. A.F. MacKenzie, for the Assistant Deputy and

Secretary, Department of Indian Affairs, wrote to the Secretary, Department of the

Interior, advising that certain lands had been selected for the Montreal Lake, Lac La

Ronge and Stanley Bands. The legal descriptions of the lands were set out and the letter

concluded with this paragraph.

You are requested to have these lands reserved from

sale or settlement with a view to having them constituted as

an addition to the Montreal Lake Indian reserve No. 106A.

[Exhibit P-4, p. 1134]

It was shortly ascertained that of the lands selected, only eleven sections were available

(Ex. P-4, p. 1153). This information was conveyed to the Secretary, Department of

Indian Affairs, by letter dated May 1, 1928 (Ex. P-4, p. 1156).

[253]

On April 20, 1928, Mr. MacKenzie wrote to the Commissioner of

Dominion Lands, Department of the Interior, requesting that the eleven sections be

reserved from sale or settlement (Ex. P-5, p. 1258). On that same day he instructed Mr.

- 161 -

Fairchild to seek out other suitable lands and, if some were located, to cruise them and

report (Ex. P-5, p. 1259). On August 6, 1928, the Agent of Dominion Lands, at Prince

Albert, Saskatchewan, confirmed that the requested reservation had been effected except

for a quarter section of land which had been homesteaded during the intervening time

(Ex. P-5, p. 1266).

[254]

The Department of Indian Affairs continued its efforts to obtain some of the

Park lands as an addition to Little Red River Indian Reserve 106A. The Department of

the Interior was prepared to see this happen if the Montreal Lake Indian Reserve were

surrendered. As neither the Indians nor the Department of Indian Affairs were agreeable

to the proposed surrender, the Park lands never did become available (Ex. P-5, pp. 1265-

1283; Ex. P-5, pp. 1335-1340). However, on October 18, 1928, Order-in-Council P.C.

1846, cancelled the reservation of the lands which had been reserved pending a

determination of their suitability for inclusion in the Park (Ex. P-5, p. 1334). As a result

the lands around Candle Lake became available. In March of 1929, steps were taken to

post for settlement the lands which had been released from the Park (Ex. P-87, p. 38).

[255]

As appears from correspondence in July and August, 1929, the Amos

Charles and James Roberts Band continued to request that land be surveyed for them

around Little Red River Indian Reserve No. 106A. Commissioner Graham supported the

request (Ex. P-5, p. 1361-1366). Nothing happened for some time, but there was some

activity in respect to other lands.

[256]

By letter dated September 11, 1929, Mr. A.F. MacKenzie sent to the

Commissioner of Dominion Lands at the Department of the Interior a list of Indian

Reserves “. . .which have been selected and surveyed but which have not been

confirmed”. He asked that this be done and the list included Indian Reserve No. 106 at

- 162 -

Montreal Lake and Indian Reserves Nos. 156 to 158B at Lac La Ronge and on the

Churchill River (Ex. P-5, p. 1375). The latter were thirteen in number and had been

surveyed in 1909 by Mr. J. Lestock Reid. The requested Orders-in-Council were made in

January, February and April of 1930 (Ex. P-5, pp. 1483-89; P-5, pp. 1529-32).

[257]

Mr. MacKenzie again wrote to the Commissioner of Dominion Lands on

January 9, 1930. He spoke of the possibility that the National Parks Branch may

relinquish its reservation of certain lands and that it was important that these lands be

added to Indian Reserve 106A. He accordingly requested that some seven townships of

land adjacent to Candle Lake be withheld from sale or settlement.

In connection with additional lands to which the

Indians of the Lac la Ronge bands are entitled under the

terms of Treaty, I have to advise you that it is the intention

of the Department to endeavour to select some or all of these

in the vicinity of Candle Lake and with this in view it is

hoped to send a departmental representative into that district

this year.

I should like to be advised, therefore, if you could,

pending the selection, withhold from sale or settlement all

those lands not already disposed of in Tp. 55, Rgs. 22, 23 &

24, Tp. 56, Rgs. 23 & 24 and the S. 1/2 Tp. 57, Rgs. 22 and

23, as well as unsurveyed Tp. 56, R. 22, all West of the 2nd

Meridian.

[Exhibit P-5, p. 1478]

[258]

The next day, January 10, 1930, Mr. MacKenzie wrote to Commissioner

Graham to advise that the Department was still considering a surrender of the Montreal

Lake Reserve in exchange for land in the vicinity of Candle Lake. He requested Mr.

- 163 -

Graham to obtain information about the suitability of Candle Lake and advised that if the

scheme were considered feasible, a thorough cruise would be made.

It has been under consideration if it would not be

advisable to endeavour to obtain a surrender from the

Indians of the Montreal Lake Indian reserve No. 106, situate

South West of Montreal Lake, for the purpose of exchanging

the reserve for lands in the vicinity of Candle Lake.

. . .

After you have obtained what information you can on

the liklihood [sic] of obtaining such a surrender and the

suitability of the reserve being located at Candle Lake, I

shall be pleased to receive an expression of your opinion on

the proposed exchange. If the scheme is considered feasible,

the Department will of course arrange for a thorough cruise

to be made of the lands adjoining Candle Lake before final

action is taken.

[Exhibit P-5, p. 1480]

Mr. Graham’s response was less than enthusiastic as he believed the lands at Candle Lake

to be inaccessible (Ex. P-5, p. 1481).

[259]

Thereafter, memoranda passed within the Department of the Interior with a

view to ascertaining the status of the Candle Lake lands. Ultimately it was ascertained

that all of the lands, except for one township, had been surveyed and were open for entry

except for certain lands included within timber berths (Ex. P-5, pp. 1490-1496). On

March 12, 1930, Mr. W.W. Stinson, Dominion Lands Administration sent to Mr. H.B.

Perrin, Dominion Lands Branch, a memorandum and sketch and stated:

- 164 -

The Department of Indian Affairs has recently made

application for a reservation to be placed against the vacant

land in the following townships:

. . .

It points out that the Indians of the Lac La Ronge

bands are entitled under the terms of Treaty to additional

land and, under the circumstances, it is desired to make a

selection of land in the vicinity of Candle Lake. The

Department of Indian Affairs expects to have one of its men

visit that district during the coming season. Please see

sketch immediately hereunder which indicates the standing

of the land applied for according to Departmental records.

These townships were formerly reserved for inclusion

in the Prince Albert National Park but were released on the

23rd April last, and the Agent was instructed to post for

settlement purposes the vacant and available lands.

[Exhibit P-5, pp. 1501-2]

On March 20, 1930, Mr. J.W. Martin, Commissioner of Dominion Lands, wrote to the

Agent of Dominion Lands, Prince Albert, Saskatchewan, informing him that the

Department had authorized a reservation in favour of the Department of Indian Affairs in

respect to the lands stipulated by Mr. MacKenzie in his letter of January 9, 1930. The

agent was instructed to make the necessary notation.

I beg to inform you the Department has recently

decided to authorize you to place a reservation in your

records in favour of the Department of Indian Affairs against

the vacant and available land in the above described

townships and parts of townships.

Please note against the land that is at present held

under lease or entry or other disposition that in the event of

- 165 -

the existing disposition being cancelled at a later date the

land is to be reserved for the Indian Department.

In connection with land held under entry you should

not accept an application for inspection from an individual.

If you receive such an application you should notify the

applicant why cancellation proceedings cannot be taken on

his behalf, but you may in such case take proceedings on

behalf of the Department.

[Exhibit P-5, p. 1503]

On that same date, March 20, 1930, the following entry was made in the Dominion Land

Registry with respect to the Candle Lake lands.

Reserved 20 March 1930 Candle Lake Indian Reserve #

OnC

PC

File 5463148.

[Exhibit P-36]

[260]

The Department of the Interior then took steps to identify existing mineral

claims and land dispositions. In a memorandum dated May 13, 1930, Mr. W.S. Gliddon,

Director, Land Patents and Records Division, wrote the following to Mr. J.W. Martin.

Certain lands within the block applied for, as

indicated on the sketch, hereunder, have been disposed of

and certain mineral claims as shown on the blue prints,

beneath, have been located herein.

The Department of Indian Affairs have represented

that it will be satisfactory for its purposes if the lands

available are placed under temporary reservation for the

purposes of that Department, and I beg to recommend that

the necessary action be taken to that end.

- 166 -

[Exhibit P-5, p. 1539]

Steps were also taken to value the school lands within the subject area in order to select

alternate lands for the School Lands Endowment Fund (Ex. P-5, p. 1542; P-6, p. 1545).

[261]

In a letter dated September 18, 1930, Mr. A.F. MacKenzie wrote to Mr.

H.W. Fairchild, instructing him to determine which of the Candle Lake lands would be

suitable for a reserve.

On completion of your work at Janvier, you are

requested to proceed to the Candle Lake District making an

inspection with a view to determining what sections in Tp.

55, Rgs. 22, 23 & 24, Tp. 56, R. 23 & 24, S. 1/2 Tp. 57, R.

22 & 23 and unsurveyed Tp. 56, R. 22, all W. 2. M. would

be most suitable for the purposes of an Indian reserve.

As you are aware there is still considerable acreage

due to the Indians of the Lac la Ronge bands and it is desired

to know if it would be advisable for the Department to select

in the Candle Lake District the lands to which these bands

are entitled.

As the Indians who own the Little Red River Indian

reserve No. 106A are members of these bands, it is

considered desirable that such Indians as you should find it

necessary to employ when making this cruise, should be the

principal or head men of this reserve, and in any event you

should arrange for one of the head men of this reserve to

accompany you.

I am enclosing copies of Sectional Sheets Nos. 269,

319 and 369.

[Exhibit P-6, p. 1561]

- 167 -

In fact, Mr. Fairchild was unable to perform the task assigned. This handwritten notation

appears on the top of the letter of instructions.

Mr. Fairchild did not complete his work at Janvier early

enough in the season to make this inspection.

[262]

The next significant event was that the Natural Resources Transfer

Agreement took effect on October 1, 1930. Just prior to that on September 23, 1930, the

Premier of Saskatchewan, the Honourable J.T.M. Anderson, wrote to the Federal Minister

of the Interior, the Honourable T.G. Murphy, asking for an inventory and analysis of the

lands to be transferred to the Province (Ex. P-6, p. 1563). Presumably as a part of the

project to meet the request, certain undated lists of Indian Reserves were drawn up. The

one list is entitled “Indian Reserves in Saskatchewan Confirmed Between September 1,

1905 and October 1, 1930". Another list is entitled “Indian Reserves Not Confirmed

Prior to October 1, 1930" and contains the “Proposed Candle Lake I.R.”. In respect to

that reserve there is the notation “Temp. Res. pending selection. Further action rests with

Prov.” (Ex. P-6, pp. 1570-88).

[263]

In a letter of December 12, 1930, Major John Barnett, Deputy Minister of

Natural Resources Saskatchewan speaks of a reservation of lands at Candle Lake for the

Department of Indian Affairs and asks Mr. J.W. Martin, to provide “. . .details and

correspondence covering such reservation”. He also noted a number of homesteads had

been entered in the area (Ex. P-6, p. 1627). Shortly after, on January 4, 1931,

Commissioner W.M. Graham wrote to the Secretary, Department of Indian Affairs, about

securing the land at Candle Lake for the Indians.

- 168 -

With further reference to my letter to you dated

November 25th last, in regard to the question of the selection

of lands for the James Roberts and Amos Charles Bands in

the Candle Lake District, I would be glad to know if the

Department have made any progress towards securing the

lands selected. The matter is one of great importance and, in

my opinion, the Department should press for a settlement of

the question at as early a date as possible.

[Exhibit P-6, p. 1697]

[264]

A new consideration then appeared. It was seen that the Candle Lake area

had potential as a summer resort development as well as for homesteading and enquiries

were made. On January 19, 1931, Mr. J.N. Gale, a Melfort lawyer, wrote to the Deputy

Minister of Indian Affairs.

I have been advised by the Minister of Natural

Resources, Saskatchewan, to the effect that your Department

has reserved several miles of land surrounding Candle Lake.

I believe there is a possibility of summer resort

development being made along that Lake some time in the

near future. I would be much obliged if you would advise

whether it is possible for a party to secure the right to a small

portion of the land adjoining the Lake to be used as a site for

a summer cottage.

[Exhibit P-6, p. 1700]

Mr. A.F. MacKenzie, by then Secretary Department of Indian Affairs, responded on

February 4, 1931, as follows:

In reply to your letter of the 19th ultimo, I have to

advise you that the reservation of lands made by this

- 169 -

Department in the vicinity of Candle Lake was made for the

purpose of permitting the Department to select an Indian

reserve at that point. It is impossible to state at the present

time what lands will finally be included in this selection.

However, the Department expects to have the lands which

have been temporarily reserved cruised and reported upon

during the present year, in order to be in a position to

definitely inform the provincial authorities what lands are

actually required for Indian reserve purposes.

[Exhibit P-6, p. 1705]

[265]

By telegram dated March 28, 1931, Major Barnett again requested details

about the Candle Lake reservation from Mr. J.W. Martin (Ex. P-6, p. 1706). He was

advised on April 2, 1931, that the file could not be located (Ex. P-6, p. 1707), but on

April 17, 1931, he was sent a statement of the lands reserved for Candle Lake Indian

Reserve (Ex. P-6, p. 1708). Subsequently a letter was written to the Department of

Natural Resources Saskatchewan on May 18, 1931, in which Mr. H.E. Hume, Deputy

Commissioner, Dominion Lands Administrator, outlined what had transpired in respect to

the Candle Lake lands.

On the 9th January 1930 the Department of Indian

Affairs advised this Department that certain additional lands

were required in connection with the Lac La Ronge Indian

Reserve and requested that said lands be withheld from sale

or settlement and placed in a temporary reserve, pending

further action.

The necessary notation was made in the Departmental

records to the effect that the lands required were temporarily

reserved for the Department of Indian Affairs, and

instructions were issued to the Agent of Dominion Lands at

Prince Albert to have a homestead inspector visit the School

lands which the Department of Indian Affairs desired to

- 170 -

obtain and place a valuation on the same, and select other

Dominion lands of equal value to be exchanged for the

School lands to be surrendered.

At the time the instructions were issued to the Agent

of Dominion Lands at Prince Albert to have the inspection

made, it appears that the inspectors, owing to the pressure of

work, were not in a position to make the inspection, and

consequently, in view of the probable transfer to the

Province of the natural resources, no further action has been

taken up to the present time.

In order, however, that you may be in a position to

deal with this matter, as the natural resources were

transferred to the Province of Saskatchewan as of the 1st

October last, I am now enclosing the following documents: -

1.

Copy of a communication dated 9th January, 1930,

from the Acting Assistant Deputy and Secretary of

the Department of Indian Affairs.

2.

Copy of Departmental communication dated 20th

March, 1930, to the Agent of Dominion Lands at

Prince Albert, requesting an inspection and valuation

of the lands referred to.

3.

4.

5.

Copy of the list of School lands to be surrendered,

together with the standing and the respective areas of

each quarter-section.

Copy of a communication dated 6th June, 1930, to

the Agent of Dominion Lands, furnishing a list of the

School lands to be inspected and valued.

Copy of letter from Agent of Dominion Lands, Prince

Albert, of 3rd July, 1930, to the Department relative

to this matter, together with a copy of Inspector

Whelan’s letter of the 3rd June, 1930, and the reports

which accompanied same.

- 171 -

A copy of this communication is being forwarded to

the Secretary, Department of Indian Affairs, in order that the

said Department may be advised that this matter has now

been referred to the Department of Natural Resources,

Regina, Saskatchewan, to be dealt with.

[Exhibit P-6, p. 1714]

A copy of the letter was sent to the Secretary, Department of Indian Affairs.

[266]

It will be noted that Mr. Hume speaks of the natural resources as having

been transferred to the Province of Saskatchewan as of October 1. He repeated this

opinion in a letter of July 15, 1931, to a Mr. Roy Lester who had inquired about the

availability of land (Ex. P-6, p. 1724). The Department of Natural Resources

Saskatchewan took a different view and referred Mr. Lester back to the Department of the

Interior where Mr. Hume then told him the matter was being taken up by the Department

of Indian Affairs (Ex. P-6, p. 1743). Mr. Hume then wrote to the Department of Indian

Affairs on August 6, 1931, and asked whether the Candle Lake lands were still required

by the Department (Ex. P-6, p. 1750). Mr. A.F. MacKenzie replied as follows in a letter

dated August 31, 1931.

In reply to your letter of the 26th instant, I have to

advise you that the Department has not yet selected from

those lands which have been temporarily withheld from sale

or settlement in the Candle Lake District, the lands which

may be required there for a permanent reservation. The

Department hopes, however, to make the selection during

the present year. It is desired, therefore, that the temporary

reservation against the lands remain until this selection is

completed.

- 172 -

[Exhibit P-6, p. 1762]

[267]

In the meantime, in response to an inquiry from Commissioner Graham

(Ex. P-6, p. 1716), Mr. MacKenzie wrote to him on June 6, 1931, and advised:

The Department hopes to arrange to have a cruise

made this summer of the lands available between Indian

reserve No. 106A and Candle Lake, to ascertain if lands of a

suitable nature could be obtained for these Indians in that

vicinity.

[Exhibit P-6, p. 1717]

Then on August 27, 1931, he sent this telegram to Mr. Graham.

SELECTION NOT YET MADE Stop THIS

DEPARTMENT THEREFORE DOES NOT CONTROL

HAY IN THIS AREA AND APPLICATION FOR

PERMITS SHOULD BE MADE TO PROVINCIAL

AUTHORITIES.

[Exhibit P-6, p. 1755]

[268]

On August 28, 1931, Commissioner Graham again wrote to Mr. MacKenzie

urging that the requests of the Amos Charles and James Roberts Bands be dealt with as

soon as possible because the unoccupied lands would be taken up quickly now that they

had been turned over to the Province (Ex. P-6, p. 1759). On August 29, 1931, Mr. A.S.

Williams, Acting Deputy Superintendent General of Indian Affairs, sent this

memorandum to a Mr. Buskard, Secretary to the Minister of Indian Affairs.

- 173 -

I return herewith letter which the Honorable the

Minister had received from the Secretary of the Prince

Albert Board of Trade and in which reference is made to the

reservation of certain lands for Indian use in the Candle Lake

district. In the year 1930, on request of this Department, the

Interior Department placed a reservation upon all undisposed

of lands in Tp. 55, Rgs. 22, 23 and 24; Tp. 56, Rgs. 23 and

24; the S. 1/2 of Tp. 57, Rgs. 22 and 23, and unsurveyed Tp.

56, Rgs. 22, all west of the 2nd M. The understanding was

that later this Department would consider making a selection

out of this area, of certain lands for the use of the Indians of

the Montreal Lake Reserve. The matter is still under

consideration, and no selection has as yet been made, and in

fact, there is some doubt as to whether any of these lands

will eventually be acquired for Indian use, as it appears that

the Indians of that district have some objection to removing

to these particular lands.

As a reply to the letter addressed to the Minister, I can

only suggest that the Secretary be informed that these lands

have not actually been set aside, as an Indian Reserve, but

that a temporary reservation has been placed thereon, and

that the matter of selection by this Department is at present

receiving consideration.

[Exhibit P-6, p. 1761]

[269]

On August 31, 1931, Mr. A.F. MacKenzie wrote to the Commissioner of

Dominion Lands as follows:

. . .I have to advise you that the Department has not yet

selected from those lands which have been temporarily

withheld from sale or settlement in the Candle Lake District,

the lands which may be required there for a permanent

reservation. The Department hopes, however, to make the

selection during the present year. It is desired, therefore, that

- 174 -

the temporary reservation against the lands remain until this

selection is completed.

[Exhibit P-6, p. 1762]

On the same date he sent this letter of instruction to Mr. H.W. Fairchild, Surveyor.

If on your return from the work at Chipewyan you

find there will be sufficient funds available from this year’s

appropriation, you are requested to proceed to the Candle

Lake district to make an inspection with a view to

determining what sections in Tp. 55, Rgs. 22, 23 and 24; Tp.

56, Rgs. 23 & 24, S.1/2 Tp. 57, R. 22 & 23 and unsurveyed

Tp. 56, R. 22 all W.2.M. would be most suitable for the

purposes of an Indian reserve.

There are still approximately 52 square miles due to

the Indians of the Lac la Ronge bands, and it is desired to

know if it would be advisable for the Department to select

any or all of this area in the Candle Lake district.

As the Indians who own the Little Red River Indian

reserve No. 106A are members of these bands, it is

considered desirable that you should ascertain if these

Indians would favourably regard the selection of reserve

lands in that vicinity. Such Indians as you should find it

necessary to employ when making this cruise should be the

principal or head men of this reserve, and in any event you

should arrange for one of the head men of this reserve to

accompany you.

I am enclosing copies of Sectional Sheets Nos. 269,

319 and 369 and Tp. plans 55 R 22, 23, 24, Tp. 56 R 23 &

24 Tp. 57 R 22 & 23 all W2nd.

[Exhibit P-6, p. 1763]

- 175 -

[270]

On September 3, 1931, Mr. MacKenzie advised Mr. Graham about the

above. The latter quickly requested that an experienced Inspector look over the lands

prior to a final selection to ensure the Indians didn’t get more useless land and the request

was met (Ex. P-6, pp. 1766, 1769 and 1773). On the same date of September 3, Mr.

MacKenzie, in a further letter, instructed Mr. Fairchild to ascertain from the local

provincial Crown lands agent what lands were covered by timber or other licences (Ex. P-

6, p. 1767). In the end Mr. Fairchild was unable to go to Candle Lake, but Mr.

MacKenzie wrote to Mr. Graham on September 19, 1931 and suggested that the Inspector

proceed with a cruise of the lands.

With further reference to your letters of August 28th

last and September 8th, I have to advise you that as it is

probable that Mr. Fairchild will not be able to proceed to the

Candle Lake district after his return from Fort Chipewyan, it

is requested that you will arrange to have the Inspector to

whom you refer in your letter proceed to that district to make

a cruise of the lands which have been temporarily reserved,

in order to ascertain what lands, if any, should be applied for

as a permanent reserve.

The lands which this Department requested the

Department of the Interior to temporarily withhold from sale

or settlement are all undisposed lands in

Tp. 55, R. 22, 23 and 24

Tp. 56, R. 23 & 24

S 1/2 Tp. 57, R. 22 and 23

unsurveyed Tp. 56, R. 22, all W.2.M.

the object of the Department in having these lands

temporarily withheld from disposal was in order to select as

large an area of suitable lands as possible for the Indians of

the Lac la Ronge bands, who are still entitled to

approximately 52 sq. miles.

- 176 -

As the Indians who own the Little Red River Indian

reserve No. 106A are members of these bands, it is

considered desirable that the Inspector should ascertain if

these Indians would favourably regard the selection of lands

in that vicinity. Such Indians as he should find it necessary

to employ in making the cruise should be the principal or

head men of this reserve, if they are suitable for the work,

and in any event the Inspector should arrange for one of the

head men of the reserve to accompany him.

The Department has recently been unofficially

informed that there is an Indian legend in connection with

Candle Lake, which makes lands in the country adjoining the

lake undesirable in the eyes of the Indians. The Inspector in

making his report is requested to list, in order of preference,

the quarter sections which he may select.

Before proceeding to the district, he should consult

the Agent of Crown Lands in that district and ascertain what

areas in that locality are at present covered by timber or

other licences.

I am enclosing copies of Section 1 sheets Nos. 269,

319 and 369, also Township plans

55, R. 22, 23 and 24

56, R. 23 and 24

57, R. 22 and 23, all W.2.M.

[Exhibit P-6, p. 1777]

[271]

Within the Department of the Interior, Mr. H.E. Hume, Chairman,

Dominion Lands Board, spoke about the Natural Resources Transfer Agreement and its

relationship to Indian Reserves selected, but not confirmed. In a memorandum to a Mr.

Eastman on September 25, 1931, he said the following:

- 177 -

In view of the wording of the various Resources

Agreements with the Western Provinces, it would appear

that lands selected and surveyed for the purpose of an Indian

Reserve but not yet confirmed, continue to be vested in the

Crown and administered by the Government of Canada for

the purposes of Canada.

At the earliest possible date please have prepared a

list for each Province showing lands selected and surveyed

as above, but not yet confirmed as Indian Reserves. These

lists will be submitted to the Deputy Minister for authority to

transmit the same to the respective Provinces, drawing

attention to the provisions of the various Agreements, and

pointing out that the parcels included in the list continue to

be vested in and administered by the Government of Canada.

[Exhibit P-6, p. 1783]

Then in a memorandum dated September 29, 1931, Mr. Hume sought an opinion from

Mr. K. R. Daly, Departmental Solicitor, about the reservation of lands at Candle Lake.

On the 20th March 1930 the Agent of Dominion

Lands, Prince Albert, Saskatchewan, was instructed to place

a reservation in his records in favour of the Department of

Indian Affairs against the vacant and available land in the

above described townships, and parts of townships. He was

also asked to note that the land that is at present held under

lease or entry or other disposition that in the event of the

existing disposition being cancelled at a later date the land

was to be reserved for the Indian Department.

Several enquiries have been received from individuals

asking whether any of the lands so reserved would be made

available for settlement in the near future. The Department

of Indian Affairs advised this office on the 31st ultimo that

they hoped to make a selection from the lands reserved for a

permanent reservation during the present season, but desired

- 178 -

that the temporary reservation against these lands remain

until the selection is completed.

In view of Section 10 of the agreement with the

Province of Saskatchewan will you kindly state whether, in

your opinion, this Department is in a position to take any

further action in connection with this reservation or whether

all correspondence relative thereto should be transferred to

the Saskatchewan Government.

[Exhibit P-6, p. 1786]

This handwritten notation appears at the bottom of the memorandum.

Am of opinion, as no formal reservation has been by [--------

----] Council all correspondence [-------] transferred to

Province.

On the next day, September 30, 1931, Duncan Campbell Scott, Deputy Superintendent

General of Indian Affairs, sent the following memorandum to Mr. Buskard, Private

Secretary to the Minister.

The temporary reservation of the lands which this

Department has had withheld from sale or settlement in

Townships 55, 56 and 57, Ranges 22, 23 and 24, as referred

to in your memorandum of the 22nd instant, was for the

purpose of enabling the Department to make an inspection of

this area with a view to selecting reserves for the Lac la

Ronge Indians and not for the Indians of the Montreal Lake

Reserve. The Lac la Ronge Indians are divided into the

James Roberts Band and the Stanley Band. These Bands

have not been allotted all their lands, and under the

conditions of the Treaty they are still entitled to receive

approximately fifty-two square miles.

- 179 -

Arrangements have been made to have an inspection

of this area made during the coming month and when the

report of this inspection is received, it is hoped that the

Department will be in a position to release from temporary

reservation a considerable portion of the area.

[Exhibit P-6, p. 1787]

[272]

Mr. Hume, by letter dated October 2, 1931 (Ex. P-6, p. 1791) advised Major

Barnett, that the Department of Indian Affairs desired to maintain the reservation at

Candle Lake and sent him copies of inquiries about the availability of that land. He also

stated that the matter was under the control of the Department of Natural Resources

Saskatchewan. It then appeared that the Department of Natural Resources was intending

to open the Candle Lake lands for settlement. (Ex. P-6, p. 1805). Mr. Duncan Campbell

Scott responded by pointing out that the Department of the Interior had agreed to

postpone disposal of the lands until after a selection of an Indian Reserve was made and

he expressed the opinion that the Province should make no disposition until that selection

had been made (Ex. P-6, p. 1806).

[273]

In the meantime, Mr. W. Murison, Inspector of Indian Agencies, in the

company of two headmen of the James Roberts Band, did a cruise of the lands at Candle

Lake and selected 33,401.2 acres. His report of November 4, 1931, to Commissioner

Graham reads as follows:

I beg to report that I left Regina on the afternoon of

October 8th and proceeded to the Candle Lake District for

the purpose of making a selection of lands for the Amos

Charles and James Roberts Bands, in the Ile a la Crosse

Agency. I was met at Prince Albert by the two Headmen of

the James Roberts Band, namely, John Bell and John Morin,

who accompanied me when cruising the land.

- 180 -

Attached hereto you will find a map of the townships

set aside for this purpose, showing the lands selected by me

enclosed in blue markings. This selection was approved by

the Headmen from the James Roberts Band, and they assured

me that the Amos Charles Band would be pleased with it. I

am also attaching a statement showing in detail the sections,

township and ranges of the lands selected.

I called upon the Agent of Crown Lands in Prince

Albert, before proceeding to look the land over, and

ascertained the areas under timber limit. He assured me that

there were no other licenses or permits granted in the

townships set aside. There are a few acres of timber limit on

Sections 1, 2, 12 & 14, in Township 55; Range 23, and a

small limit taking in portions of Sections 29, 30, 20 & 19, in

Township 55, Range 22. These parcels are all very small

and are not very valuable.

There are three trappers who filed on homesteads in

Ranges 22 & 23 before the land was withdrawn from entry.

These are the only homesteaders residing on the lands

selected. I was informed that a few others had made entry

but had not returned to the district after doing so, and had

made no improvements. When cruising the land I saw no

signs of any other residents except the three mentioned.

I may state that the land is all covered with a heavy

growth of bush. The soil is a sandy loam on the portions

selected, but should be fair agricultural land when the bush is

cleared off it. There are very few portions of it which are

stony, but some of the land is muskeg.

When selecting the land I had in mind picking out

lands suitable for farming, grazing, hay, and also to keep the

areas in as compact parcels as possible. The land cannot be

called choice, but it is certainly the best that is available, and

I would recommend that the selection be approved.

- 181 -

I was impressed with the abundance of wild life in the

area which I cruised. Elk, moose, and jumping deer are very

plentiful, and there appears to be a good supply of fish in the

Candle Lake. This location, therefore, with these resources,

should prove a very attractive one for Indians.

[Exhibit P-6, p. 1811]

By letter of the same date, Commissioner Graham informed Mr. MacKenzie of the

selection and sent him Inspector Murison’s report. He concluded his letter with these

remarks.

If this selection is approved, I think the Department

should take prompt action to secure it.

[Exhibit P-6, p. 1809]

[274]

However, there was opposition to the selection. In a letter dated November

6, 1931, Major Barnett wrote to Commissioner Graham as follows:

I regret that, following our conversation, I neglected

to write you further with respecto [sic] to Candle Lake.

Under the Agreement for the Transfer of the Natural

Resources, it is provided that “the Province will from time to

time, upon the request of the Superintendent General of

Indian Affairs, set aside out of the unoccupied Crown lands

hereby transferred to its administration, such further areas as

the Superintendent General may, in agreement with the

appropriate Minister of the Province, select as necessary to

enable Canada to fulfill its obligation under the treaties with

the Indians of the Province.”

The Candle Lake area is one which must fall under

this category, as we are advised by the Interior Department

- 182 -

that it is an area that was transferred to us on the Transfer of

the Resources. Consequently, the point to be determined is

whether our Minister can or should agree to the transfer of

this area to Indian Department under Clause 10 of the

Agreement which I have just quoted. We desire to meet in

the fullest spirit of co-operation the Indian Department, in

order that the provisions of Section 10 of the Agreement of

Transfer may be complied with in spirit as well as in the

letter thereof. At the same time, we feel that, if the Indian

Department secured as an Indian Reserve the townships on

the West side of Candle Lake, access to North Central

Saskatchewan is going to be blocked to a very large degree,

as both the National Park and such Indian Reservation would

stand directly in the path of settlement and the quicker

transportation facilities that would follow upon such

settlement.

We are particularly concerned with that portion which

lies from Candle Lake West. I think, if I remember

correctly, you told me that the Indians for whom you desired

this additional Reservation were on the Montreal Lake

Reserve. It would seem to me that your requirements could

be met by reserving Township 57, Ranges 21 and 22 and

Township 56, Ranges 21 and 22, lying East of Candle Lake,

and on the North half of the Eastern side of this lake. I think

it would be very difficult for our Minister to agree now to

the reservation of the townships lying to the West side of

Candle Lake.

[Exhibit P-6, p. 1827]

On November 10, 1931, Commissioner Graham sent a copy of the letter to Mr.

MacKenzie. It was suggested by Commissioner Graham that the lands east of Candle

Lake were valueless as farm land and pointed out that only one parcel of 13,522 acres

was selected west of the lake. The other two parcels selected were south and east of the

- 183 -

lake (Ex. P-6, p. 1829). Deputy Superintendent General, Duncan Campbell Scott, replied

to Major Barnett by letter dated November 20, 1931.

The Indians of the James Roberts and Amos Charles

bands are still entitled under the terms of Treaty to receive

reserve lands to the extent of approximately 80 sq. miles. As

you are aware, the Department has been selecting a

considerable portion of this area in the vicinity of Candle

Lake, where it is desired to reserve for them an area of

approximately 70 sq. miles, leaving the remaining area due

them to be selected in the Lac la Ronge District.

From the information at hand at present, the lands

required in the Candle Lake District may be generally

described as, - All the unalienated lands in the following

Townships, -

Frac. Tp. 55-22-W.2.M.

Frac. E. 1/2 Tp. 55-23-W.2.M.

All of Tp. 55-24-W.2.M.

A detailed statement enumerating the particular sections is

being prepared and will be forwarded to you in a few days

with a request that the lands be set aside as a reserve for the

above mentioned bands. When an agreement has been

arrived at with your Government as to the actual lands to be

set aside for the purpose of these reserves, the Department

will then be able to cancel its request that the remaining

lands in Tp. 55, Rgs. 22, 23 and 24, Tp. 56, Rgs. 23 and 24,

S.1/2 Tp. 57, Rgs. 22 and 23, as well as unsurveyed Tp. 56,

R. 22, all W.2.M. withheld from lease, entry or other

disposition.

The Department made this request to the Department

of the Interior in official letter dated 9th Jan.1930 and under

date of 20th March of that year, the Commissioner of

Dominion Lands informed this Department that the lands

enumerated above were being so reserved and on the latter

- 184 -

date the Agent of Dominion Lands at Prince Albert was

informed of this reservation.

With reference to your letter of the 6th instant to

Indian Commissioner, W.M. Graham, commenting on the

selection of these lands, I may state that this Department

holds that it is entitled to select any lands within the area

temporarily reserved not previously alienated, in order to

satisfy the conditions of Treaty as provided for in Clause 10

of the Agreement between the Dominion of Canada and the

Province of Saskatchewan on the transfer of the natural

resources, inasmuch as this selection was arranged with the

Department of the Interior prior to the date of the transfer of

the natural resources and can be held to be an arrangement

within the meaning and intent of Clause 2 of the Agreement.

In connection with your comment to Commissioner

Graham with regard to the check that the establishment of

this reservation would cause to settlement and the quicker

development of such settlement, I may point out that the

Department does not propose to apply for this reservation en

bloc but by sections and fractional sections, whereby the

regulation road allowances would be retained by the

Province [illegible] policy of the Department does not

obstruct the construction of railways or surveyed roads

through its reserves, transportation should not be appreciably

affected. You will note that the selection, as proposed,

would leave a width of at least half a Township, in Township

55, between the two blocks of the reserve.

[Exhibit P-6, p. 1835]

[275]

Also on November 20, 1931, Mr. MacKenzie wrote to Commissioner

Graham stating that the James Roberts and Amos Charles Bands were entitled to

approximately 80 square miles of land. It was originally intended to take up 72 square

miles in the vicinity of Candle Lake, but it was perhaps advisable to take up more land in

that area. Having suggested some possibilities, he asked for Graham’s comments, “. . .in

- 185 -

order that a final detailed statement of land required may be prepared and forwarded to

the provincial authorities” (Ex. P-6, p. 1837). In a response dated November 21, 1931,

Mr. Graham advised that he had spoken to Major Barnett about the matter and that the

Department of Natural Resources was not likely to agree to transfer the land selected (Ex.

P-6, p. 1838).

[276]

By letter dated January 12, 1932, Deputy Superintendent General Duncan

Campbell Scott, requested of Major Barnett that the selected lands be transferred to the

Department of Indian Affairs.

I am enclosing a detailed list of lands selected by the

Department in the Candle Lake District for the Indians of the

James Roberts and Amos Charles bands, as referred to in my

letter to you of the 20th November last. I shall be pleased if

you will take the action necessary to have these lands

transferred to this Department for the purposes of the Candle

Lake Indian reserve.

You will note that while these bands are entitled to

receive approximately 80 sq. miles, the area of the lands for

which application is now made is only approximately 75 sq.

miles. It will also be noted that the lands in the northerly 2

1/2 miles in Tp. 55, R. 24 are omitted from this list. The list

also includes certain quarter sections on which homestead

entries have been made, but it is understood that some if not

all of these have been cancelled and it is the wish of the

Department that all the unalienated lands enumerated in the

list be incorporated in the reserve. When assent has been

given to this transfer, the Department will not require to have

the temporary reservation continued on the remaining lands

in Tp. 55, Rgs. 22, 23 and 24; Tp. 56, Rgs. 23 and 24; S. 1/2

Tp. 57, Rgs. 22 and 23; unsurveyed Tp. 56, R. 22, all West

2nd Meridian.

- 186 -

At one time Timber Berth 1212 partially covered Sec.

34, Tp. 55, R. 23, Secs. 19, 20, 29 and 30, Secs. 25, 26, 35,

and 36, Tp. 55, R. 22. It is thought that the existence of this

timber licence, if it is still in good standing, need not affect

the transfer of these lands, as your Department and the

licencee could be protected by a clause reserving the right

for your Department to continue the present licence under

your regulations governing such licence.

[Exhibit P-7, p. 1862]

[277]

The response was long in coming and was a rejection of the request. By

letter dated January 9, 1933, almost a year later to the day, Mr. T.J.M. Anderson, Premier

of Saskatchewan, advised Mr. T.G. Murphy, of the refusal to transfer the land and the

rationale for that decision.

In reply to your letter of December 17th regarding the

selection of land by the Indian Department in the Candle

Lake district, I have had my Departmental officials prepare a

map of the area requested for Indian purposes, which I attach

thereto. The two areas outlined in red are the areas which

the Department of Indian Affairs requested should be

transferred to them under the second part of Clause 10 of the

Natural Resources Transfer Agreement.

Section 10 of the Natural Resources Transfer

Agreement provided of course that the Dominion retained all

Indian Reserves already created and selected prior to the

Transfer Agreement. It also provided that “the Province will

from time to time, upon the request of the Superintendent

General of Indian Affairs, set aside out of the unoccupied

Crown lands hereby transferred to its administration, such

further areas as the said Superintendent General may, in

agreement with the appropriate Minister of the Province,

select as necessary to enable Canada to fulfil its obligations

under the treaties with the Indians of the Province.”

- 187 -

In other words, it is clear that, while the Province

undertakes to transfer such lands to the Indian Department, it

must through the Minister in charge agree with the selection

made. That is to say, it is reserved to the Province to

determine whether the further lands to be transferred to the

Indian Department are such as can be transferred without too

great injury to Provincial interests.

No selection of this particular land was made by the

Indian Department prior to the Transfer of the Resources,

and an inspector from the Indian Department was only sent

in to look over the land at some considerable time after the

Transfer; so that these lands can only come within the

concluding part of Paragraph 10 of the Transfer Agreement,

and the Province must therefore consider its own interests

before the Provincial Minister in charge could possibly agree

with the further transfer being made.

You will see from the attached map that these two

areas are separated from East to West by three rows of

sections, which is going to mean that the land in between

becomes virtually useless and valueless for Provincial

purposes. Schools cannot be established and general

facilities cannot be given to any people who might desire to

settle in this area. In addition to this, within both of the

blocks outlined in red considerable land has already been

disposed of, not only by the Province, but prior to that by the

Dominion during the course of their administration. Within

the area asked for are four valuable timber berths, over

which third parties have been given rights, and for which the

Province is now responsible. We cannot make a transfer of

these areas covered by timber berth licenses in any event. In

addition to this, in the Eastern block there are seven parcels

of land which were disposed of by the Dominion and which

the Province must administer in order to carry out its

obligations to the settlers who have located thereon. The

very fact that they have settled there involves necessities for

schools, roads and other local improvements, and even if

they were selected from the proposed Indian Reserve,

- 188 -

provision would have to be made for additional settlement in

order to provide them with school and other local

improvement facilities.

You will also notice that, in the area enclosed in red

and which the Indian Department asked for, four parcels of

land have been patented and presumably settled. In addition

to this, in accordance with our general water conservation

policy, 13¼ parcels of land have been reserved for park and

water development, and if these are included in an Indian

Reserve, the Province must re-cast all its general policy so

far as its program is concerned.

In the Eastern block, 20 parcels of land have been

disposed of to new settlers and in the Western block 10

parcels of land have been disposed of to new settlers, since

the Province took over the administration, and the area has

now been cut up to such an extent that it would be quite

impossible to create the territory suggested into an Indian

Reserve.

The Indian band for whom the Reserve is desired are

situated much further North than the area selected, and we

do not think it right or proper that further Reservations for

Indian bands should be selected in the areas much nearer to

settlement and much further South than their ordinary and

regular habitat. If further land is required and is owing

under the Indian Treaty to this band, the Province feels very

strongly that selections should be made either in the vicinity

of Montreal Lake or further North still in the vicinity of Lac

la Ronge, where I think the original selection was intended

to be made.

The area of land lying between Candle Lake and the

Southeastern boundary of the National Park is very narrow at

the present time, and, on account of the necessity of

providing schools and local improvement facilities for new

settlers, the Departmental officials are strongly of the

opinion that it is very inadvisable and will work a very

serious detriment to the welfare of the Province if further

- 189 -

Indian Reserves are created in this particular area. There is

also a very strong popular feeling against the creation of

Indian Reserves in the particular area selected. The

Canadian Legion has protested officially, as have individuals

interested.

For all these reasons, I am of the opinion that the area

selected is not one which, as Provincial Minister concerned,

I can agree should be transferred to the Indian Department. I

am of course quite ready to facilitate a selection of land by

the Indian Department in some other area which will not be

so prejudicial to Provincial welfare.

[Exhibit P-7, p. 1902]

[278]

The Department of Indian Affairs then embarked upon a review of its

position. Mr. A.S. Williams, Acting Deputy Superintendent General, was of the opinion

that the Department could not succeed in its claim. However, he referred the question to

the Department of Justice and on September 8, 1933, Mr. W.S. Edwards, Deputy

Minister, provided the opinion that the reservation in favour of the Department of Indian

Affairs required the province to transfer the land required to carry out the arrangement to

create an Indian Reserve. Reliance was placed on s. 2 of The Natural Resources Transfer

Agreement.

I have the honour to return you herewith your file

27132-3 which accompanied your letter of February 20th,

and 27107-4 lately submitted to this Department upon

request. It is noted that before transfer of the natural

resources to the Province of Saskatchewan, the

Commissioner of Dominion Lands had, at the request of

your Department, placed a reservation on the records of

Dominion Lands at Prince Albert in favour of your

Department against the vacant and available lands in

Township 55, in Ranges 22-3-4; Township 56, in Ranges 23-

4; unsurveyed Township 56, in Range 22 and the S. half of

- 190 -

Township 57, in Ranges 22-3, all west of the second

meridian. The letter of March 20, 1930, from the

Commissioner of Dominion Lands to his agent at Prince

Albert, carrying the following paragraph,

“I beg to inform you the Department

has recently decided to authorize you to place

a reservation in your records in favour of the

Department of Indian Affairs against the

vacant and available land in the above

described townships and parts of townships.”

would appear definitely to earmark this land for purposes of

the Department of Indian Affairs, and a copy of this

document was forwarded to the Department of Natural

Resources at Regina on the 18th May, 1931.

While the reservation was in gross in anticipation of a

selection by representatives of the Department of Indian

Affairs of the approximate acreage to which the Indian bands

were entitled, which selection was effected in October 1931,

the blanket effectiveness would not I think be diminished by

reason of the probability of a certain undefined proportion of

the aggregate land being released eventually by the

Department of Indian Affairs.

It appears that the Deputy Minister of Natural

Resources for the Province of Saskatchewan rejects the

selection, as subsequently made by you, on the ground that

exemption under the Natural Resources Agreement with

Saskatchewan by Clause 10, of lands included in Indian

Reserves, and a provision in that clause for setting aside

further areas by the Province to enable Canada to fulfil its

obligations under the treaties with the Indians of the

Province, applied only to lands in the selection of which the

Superintendent General and the appropriate Minister of the

Province agreed. Clause 2 of the Agreement provides that

the Province will carry out any arrangement whereby any

person has become entitled to any interest in Crown lands

against the Crown; in view of the status of the Department of

- 191 -

Indian Affairs in the arrangement with the Commissioner of

Dominion Lands in respect of the lands above mentioned as

a trustee for the Indians, I would suppose that the

arrangement under which the said land was earmarked

would fall within the clause.

Probably there would be difficulty in bringing these

lands within the four corners of Clause 10, as the lands

therein considered might be held to include only lands

definitely confirmed as Indian Reserves and lands selected

and surveyed, but not at the time of the Agreement

confirmed as Indian Reserves, and your file shows that the

lands in question were not selected until after the Agreement

went into effect; as suggested above, however, Clause 2 of

the Agreement does appear applicable to the circumstances.

[Exhibit P-7, p. 1930]

It is noted that no reference is made to clause 19 of the agreement. In any event, Premier

Anderson rejected the opinion and maintained his refusal to transfer the selected lands

(Ex. P-7, p. 1948). Mr. Edwards suggested a reference to the Exchequer Court, but it was

not pursued.

[279]

The matter then died until 1936 when discussions began anew about setting

aside Reserve Lands in the Candle Lake area. In the end, nothing came of them and on

May 6, 1939, Mr. T.E. Crerar, Minister of Indian Affairs, wrote to Mr. W.F. Kerr,

Minister of Natural Resources, abandoning any claim to the Candle Lake lands.

Under date of November 24th, 1938, I received a

letter from the Honourable T.C. Davis outlining the attitude

of the Province toward the proposed Indian Reservation at

Candle Lake. Since that date the matter has been the subject

of personal discussion with you and Mr. Davis on different

occasions. It has also engaged the attention of the officials

- 192 -

of this Department, and particularly those of the Indian

Affairs Branch, for some time.

May I advise you therefore that a conclusion has been

reached to withdraw the claim we have made to additional

land at Candle Lake, concerning which you protested, and to

leave your Government free to make the land available for

white settlement as suggested in Mr. Davis’ letter above

referred to.

In doing so however I rely on the understanding as

expressed by Mr. Davis that ‘compensating factors can be

provided the Indians where they live’. It is suggested that

this understanding might be implemented by your granting

our request for lands for their immediate use as outlined in

my letter to you under date of April 27th. Also that at some

future time when the question of selection of exclusive

hunting and trapping grounds comes up for consideration

that you will be generous enough to ignore the acreage limits

set down in the treaties.

You are aware that under the treaties the limitation of

640 acres to each family of five is fixed for “farming lands”.

While this might be adequate for the type of land

contemplated by the treaties I think you will agree that it is

not a proper yardstick to use in measuring hunting and

trapping areas, which occupations by their nature demand a

wider range.

These matters must of necessity be left for future

consideration and negotiation, and in the meantime it gives

me pleasure to release the Candle Lake lands to you free

from the claims formerly urged by this Department on behalf

of its Indian wards.

[Exhibit P-7, p. 2141]

Mr. Kerr responded as follows in a letter dated May 18, 1939.

- 193 -

I have for acknowledgment your letter of May 6th last

in which you convey the very gratifying information of the

release of the Candle Lake lands to this Government free

from the claims formerly urged by the Department of Mines

and Resources on behalf of its Indian wards.

I wish to express our appreciation of your action in

this regard and to extend our sincere thanks for the same.

I have noted the understanding as expressed to you by

the Hon. T.C. Davis when the subject matter of these lands

was discussed between you and also the point now raised in

your letter that the limitation of 640 acres to each Indian

family of five, which was fixed for farm lands, might well be

extended to provide for a larger acreage where hunting and

trapping areas are involved.

As you say these matters must of necessity be left for

future consideration and negotiation but I wish to assure you

that we will approach these matters of mutual concern in a

most sympathetic manner, and I do not anticipate that there

will be any difficulty in reaching mutually satisfactory

decisions.

[Exhibit P-7, p. 2144]

[280]

In that same month, the Registrar of Dominion Lands placed in the register

with respect to the Candle Lake lands the notation: “Withdrawn from Reserve by Ottawa

letter of May 6, 1939.” Thus ended the Candle Lake saga.

(2) Candle Lake Lands - A Reserve?

[281]

No Indian Reserve was created at Candle Lake. The Dominion

Government was interested in creating a Reserve; it took steps to create a Reserve; it

- 194 -

intended to create a Reserve; it made a tentative decision to create a Reserve; but it did

not create a Reserve. At the very end it abandoned the project.

[282]

Treaty No. 6 speaks of a deputy. The exact words are these:

That the Chief Superintendent of Indian Affairs shall

depute and send a suitable person to determine and set apart

the reserves for each band, . . . .

Within itself the word “depute” contains the notion of superior and inferior. The former

possesses authority, but passes it on or shares it with the latter. In each instance it is

necessary to ascertain what authority was conveyed to the deputy.

[283]

The Dominion of Canada is one of the parties to Treaty No. 6 and as such

must participate in the creation of an Indian Reserve. As provided in the treaty, this

would be done through its officer, the Chief Superintendent of Indian Affairs. It was that

person who possessed the ultimate authority.

[284]

Following execution of the Treaty, it was the Dominion of Canada which

owned all the land. That being so, it is only reasonable that land could not be alienated

without its approval and concurrence. In respect to Indian Reserves it fell to the Chief

Superintendent to initiate the process of establishing Reserves by deputing a suitable

person. However, it also was his role to decide what authority would be conferred upon

his deputy. Thus, the Chief Superintendent could authorize his deputy to actually create a

Reserve or he could retain the final decision unto himself. The act of deputation does not

of necessity entail a complete abdication of authority. In the historical record there are

- 195 -

examples of both approaches. The Treaty itself does not mandate one approach or the

other.

[285]

It is useful to look at what transpired when several small Reserves were

created for the Lac La Ronge Indian Band in 1909. The process began on July 5, 1909,

with Mr. J.D. McLean, Secretary, Department of the Interior, sending a letter of

instructions to the surveyor, Mr. J. Lestock Reid. The letter stated as follows:

. . .I have to say that as it appears a number of prospectors

are entering the Lac La Ronge District it is desired to lay out

the proposed reserves in that locality as soon as possible. I

have therefore to request you to proceed to Lac La Ronge for

that purpose as soon as you have completed the work in

connection with the surrendered and new reserves of the

Thunderchild, Moosomin and Salteaux Indians.

. . .

These six suggested locations [as described earlier in

the letter] correspond roughly with the present grouping of

the Indian population throughout the district; for they live for

the most part in settlements around the lake and on the

Churchill, at points which they find most favorable for fish

and most convenient to their hunting grounds.

. . .

When you have decided on a location for a reserve and

especially when you have completed the survey of it (and of

all the proposed reserves) please advertise the fact in the

locality by every means in your power and let it be known

that no trespass on an Indian Reserve after it has been

located and surveyed will be allowed.

[Exhibit P-3, p. 623]

- 196 -

[286]

Certain things should be noted. First, there was an urgency about the matter

because non-Indians were entering the area. Secondly, the Department indicated the

locations and this amounted to some restriction on the authority of the surveyor. Thirdly,

the letter expressly directed the surveyor to decide on a location, complete a survey and

then proclaim the subject lands to be an Indian Reserve. Once that was done, the

Department viewed the process as complete. In that instance, authority to actually create

the Reserve was expressly conferred upon Mr. Reid.

[287]

This is borne out by what subsequently took place. On December 30, 1909,

Mr. Reid forwarded to Mr. McLean the plans and field notes of the Indian Reserves he

had surveyed for the Lac La Ronge Indian Band. Mr. McLean forwarded these

documents to the Department of the Interior. There later was a lengthy discussion about

obtaining Orders-in-Council confirming the Reserves. They were not passed until 1930.

In the meantime the Department, the Indians and the world at large treated the tracts of

land as described by survey as Indian Reserves. In short, Mr. J. Lestock Reid did what he

was empowered to do and that was endorsed by the appropriate officer on behalf of the

Dominion Government.

[288]

Let us contrast that with what happened in respect to the Candle Lake lands.

It is beyond dispute that the Department of Indian Affairs thought it desirable and

appropriate to establish an Indian Reserve at Candle Lake. Thus we have Mr. A.F.

McKenzie, Assistant Deputy and Secretary of Indian Affairs, writing as follows to the

Commissioner of Dominion Lands.

In connection with additional lands to which the

Indians of the Lac la Ronge bands are entitled under the

terms of Treaty, I have to advise you that it is the intention

- 197 -

of the Department to endeavour to select some or all of these

in the vicinity of Candle Lake and with this in view it is

hoped to send a departmental representative into that district

this year.

I should like to be advised, therefore, if you could,

pending the selection, withhold from sale or settlement all

those lands not already disposed of in Tp. 55, Rgs. 22, 23 &

24, Tp. 56, Rgs. 23 & 24 and the S. 1/2 Tp. 57, Rgs. 22 and

23, as well as unsurveyed Tp. 56, R. 22, all West of the 2nd

Meridian.

[Exhibit P-5, p. 1478]

In time, on March 20, 1930, the following entry was made in the Dominion Lands

Register in respect to the described lands.

Reserved 20 March 1930 Candle Lake Indian Reserve #

OnC

PC

File 5463148.

[289]

On September 18, 1930, the process moved along when Mr. MacKenzie

wrote to Mr. H. W. Fairchild, an experienced surveyor.

On completion of your work at Janvier, you are

requested to proceed to the Candle Lake District making an

inspection with a view to determining what sections in Tp.

55, Rgs. 22, 23 & 24, Tp. 56, R. 23 & 24, S. 1/2 Tp. 57, R.

22 & 23 and unsurveyed Tp. 56, R. 22, all W. 2. M. would

be most suitable for the purposes of an Indian reserve.

As you are aware there is still considerable acreage

due to the Indians of the Lac la Ronge bands and it is desired

to know if it would be advisable for the Department to select

in the Candle Lake District the lands to which these bands

are entitled.

- 198 -

As the Indians who own the Little Red River Indian

reserve No. 106A are members of these bands, it is

considered desirable that such Indians as you should find it

necessary to employ when making this cruise, should be the

principal or head men of this reserve, and in any event you

should arrange for one of the head men of this reserve to

accompany you.

[Exhibit P-6, p. 1561]

Contrary to the suggestion of counsel for the plaintiffs, this letter does not instruct Mr.

Fairchild to establish an Indian Reserve. The instructions differ dramatically from those

earlier provided to Mr. J. Lestock Reid in 1909. There is no directive to make a selection

or complete a survey, although the latter would largely be unnecessary as the township

plan had been established over most of the land. What Mr. McKenzie was really seeking

was information about suitability of the land so that an informed decision could be made

and the process hopefully moved along. It is also significant that he speaks of the

Department selecting the land. That never changed.

[290]

As it happened, Mr. Fairchild was unable to attend and inertia set in.

However, the project was not abandoned. On February 4, 1931, Mr. McKenzie wrote to

Mr. J. M. Gale as follows:

. . .I have to advise you that the reservation of lands made by

this Department in the vicinity of Candle Lake was made for

the purpose of permitting the Department to select an Indian

reserve at that point. It is impossible to state at the present

time what lands will finally be included in this selection.

However, the Department expects to have the lands which

have been temporarily reserved cruised and reported upon

during the present year, in order to be in a position to

- 199 -

definitely inform the provincial authorities what lands are

actually required for Indian reserve purposes.

[Exhibit P-6, p. 1705]

On June 6, 1931, he wrote to Commissioner Graham as follows:

The Department hopes to arrange to have a cruise

made this summer of the lands available between Indian

reserve No. 106A and Candle Lake, to ascertain if lands of a

suitable nature could be obtained for these Indians in that

vicinity.

[Exhibit P-6, p. 1717]

On August 28, 1931, Commissioner Graham wrote to Mr. McKenzie as follows:

In connection with the lands at Candle Lake, I think it

would be well to have one of our officers go up there and

look at the lands and make a report as to their suitability. . . .

[Exhibit P-6, pp. 1759-60]

In each of the quoted excerpts from the correspondence, reference is made only to

ascertaining suitability. The only mention of selection is in the letter of February 4, 1931,

in which Mr. McKenzie speaks of the Department selecting an Indian Reserve. That is

why he needs information about the suitability of the subject lands.

[291]

That same theme continued in Mr. McKenzie’s new letter of instruction

dated August 31, 1931, sent to Mr. Fairchild.

- 200 -

. . .proceed to the Candle Lake district to make an inspection

with a view to determining what sections in Tp. 55, Rgs. 22,

23 & 24; Tp. 56, Rgs. 23 & 24, S.1/2 Tp. 57, R. 22 & 23 and

unsurveyed Tp. 56, R. 22 all W.2.M. would be most suitable

for the purposes of an Indian reserve.

There are still approximately 52 square miles due to

the Indians of the Lac la Ronge bands and it is desired to

know if it would be advisable for the Department to select

any or all of the area in the Candle Lake district.

[Exhibit P-6, p. 1763]

Again we see reference to suitability and advisability. Again there is reference to the

Department making a selection. It seems clear that Mr. McKenzie was seeking a report

about the lands at Candle Lake in order that the Department could be confident it was

making a good selection.

[292]

As happened before, Mr. Fairchild was unable to perform the assigned task.

However, Commissioner Graham had arranged for Inspector W. Murison to assist Mr.

Fairchild and it was then decided to have Inspector Murison proceed on his own. The

letter of instruction from Mr. McKenzie is dated September 19, 1931, and the significant

portion reads in this way.

With further reference to your letters of August 28th

last and September 8th, I have to advise you that as it is

probable that Mr. Fairchild will not be able to proceed to the

Candle Lake district after his return from Fort Chipewyan, it

is requested that you will arrange to have the Inspector to

whom you refer in your letter proceed to that district to make

a cruise of the lands which have been temporarily reserved,

- 201 -

in order to ascertain what lands, if any, should be applied for

as a permanent reserve.

[Exhibit P-6, p. 1777]

Once again a request was being made for information. No person was being deputed or

in some way being authorized to set aside or create Reserve lands.

[293]

In the same vein, Duncan Campbell Scott, Deputy Superintendent General

of Indian Affairs, wrote to the Minister’s secretary on September 30, 1931.

The temporary reservation of the lands which this

Department has had withheld from sale or settlement in

Townships 55, 56 and 57, Ranges 22, 23 and 24, as referred

to in your memorandum of the 22nd instant, was for the

purpose of enabling the Department to make an inspection of

this area with a view to selecting reserves for the Lac la

Ronge Indians and not for the Indians of the Montreal Lake

Reserve. . . .

Arrangements have been made to have an inspection

of this area made during the coming month and when the

report of this inspection is received, it is hoped that the

Department will be in a position to release from temporary

reservation a considerable portion of the area.

[Exhibit P-6, p. 1787]

It is clear that he contemplates the Department selecting the lands and this accords with

the thoughts of Mr. McKenzie.

[294]

It next happened that on November 4, 1931, Inspector Murison sent his

report to Commissioner Graham. It contained these remarks.

- 202 -

I beg to report that I left Regina on the afternoon of

October 8th and proceeded to the Candle Lake District for

the purpose of making a selection of lands for the Amos

Charles and James Roberts Bands, in the Ile a la Crosse

Agency. I was met at Prince Albert by the two Headmen of

the James Roberts Band, namely, John Bell and John Morin,

who accompanied me when cruising the land.

Attached hereto you will find a map of the townships

set aside for this purpose, showing the lands selected by me

enclosed in blue markings. This selection was approved by

the Headmen from the James Roberts Band, and they assured

me that the Amos Charles Band would be pleased with it. I

am also attaching a statement showing in detail the sections,

township and ranges of the lands selected.

. . .

When selecting the land I had in mind picking out

lands suitable for farming, grazing, hay, and also to keep the

areas in as compact parcels as possible. The land cannot be

called choice, but it is certainly the best that is available, and

I would recommend that the selection be approved.

[Exhibit P-6, p. 1811]

Here is the heart of the plaintiff’s claim to the lands at Candle Lake. They point to the

fact that Inspector Murison met with and consulted with the Indians and then selected the

lands. They say this is what is required by the Treaty and what happened on other

occasions such as in 1909. Therefore, an Indian Reserve was created.

[295]

In my opinion there is a basic fallacy in the reasoning. The letter of

instruction very clearly stipulated that Inspector Murison was “. . .to make a cruise of the

lands. . .in order to ascertain what lands, if any, should be applied for as a permanent

- 203 -

reserve. . . .” The earlier instructions to Mr. Fairchild, on August 31, 1931, had been to

the same effect. In neither instance were any instructions given for lands to be selected

for an Indian Reserve. Inspector Murison was never authorized to perform this task. He

was never deputed. The final selection was retained for the Department. This was

recognized by Commissioner Graham, a seasoned veteran of Indian matters and a strong

advocate for the Indians, for he wrote in his letter of November 4, 1931: “. . . If this

selection is approved, I think the Department should take prompt action to secure it. . . .”

(Exhibit P-6, p. 1809). The use of the word “selection” by Inspector Murison does not

bring about the result advocated. He himself recognizes that the “selection” has to be

approved by the Department.

[296]

However, the Department did take the report of Inspector Murison under

advisement and did act on it. Certain lands at Candle Lake were selected by the

Department with the intention and for the purpose of establishing an Indian Reserve for

the Lac La Ronge Indian Band. Thus we have Deputy Superintendent General, Duncan

Campbell Scott, writing to Major Barnett about this very subject on two occasions. The

first was November 20, 1931.

The Indians of the James Roberts and Amos Charles

bands are still entitled under the terms of Treaty to receive

reserve lands to the extent of approximately 80 sq. miles. As

you are aware, the Department has been selecting a

considerable portion of this area in the vicinity of Candle

Lake, where it is desired to reserve for them an area of

approximately 70 sq. miles, leaving the remaining area due

them to be selected in the Lac la Ronge District.

From the information at hand at present, the lands

required in the Candle Lake District may be generally

described as, - All the unalienated lands in the following

Townships, -

- 204 -

Frac. Tp. 55-22-W.2.M.

Frac. E. 1/2 Tp. 55-23-W.2.M.

All of Tp. 55-24-W.2.M.

A detailed statement enumerating the particular sections is

being prepared and will be forwarded to you in a few days

with a request that the lands be set aside as a reserve for the

above mentioned bands. When an agreement has been

arrived at with your Government as to the actual lands to be

set aside for the purpose of these reserves, the Department

will then be able to cancel its request that the remaining

lands in Tp. 55, Rgs. 22, 23 and 24, Tp. 56, Rgs. 23 and 24,

S.1/2 Tp. 57, Rgs. 22 and 23, as well as unsurveyed Tp. 56,

R. 22 all W.2.M. withheld from lease, entry or other

disposition.

[Exhibit P-6, p. 1835]

The second was January 12, 1932, when a request was made to have specific lands

transferred to the Department.

I am enclosing a detailed list of lands selected by the

Department in the Candle Lake District for the Indians of the

James Roberts and Amos Charles bands, as referred to in my

letter to you of the 20th November last. I shall be pleased if

you will take the action necessary to have these lands

transferred to this Department for the purpose of the Candle

Lake Indian reserve.

[Exhibit P-7, p. 1862]

Major Barnett, on behalf of the Province of Saskatchewan, rejected the request. Finally,

on May 6, 1939, the Department abandoned its claim to the lands.

- 205 -

[297]

As already stated, a selection of land was being made by the Department no

later than November 20, 1931, and it was completed by January 12, 1932. There was an

intention on the part of the Department to set aside the selected lands as an Indian

Reserve. However, that intention was never carried into practice. The underlying

reasons for the failure were both political, and not very admirable, and the result of an

interpretation of the Natural Resources Transfer Agreement, which interpretation I

suggest was wrong. However, the reasons are not the governing factor. What is

determinative is the decision not to proceed.

[298]

In the case of the Candle Lake lands the Dominion Government, acting

through the Department of Indian Affairs, involved itself directly in the creation of an

Indian Reserve. It held unto itself the ultimate authority to establish the Reserve. Until

the Department made an unequivocal decision to designate certain lands as an Indian

Reserve and then took steps to implement the decision, the intended Reserve could not

come into existence. It fell to the Department alone to proclaim the creation of an Indian

Reserve at Candle Lake and it failed to do so. It’s intention in itself was not sufficient.

As the process had not passed beyond that, no Reserve was created.

I. LA RONGE SCHOOL LANDS

[299]

At the beginning of this century an Indian Boarding School was established

on lands located on the shore of Lac La Ronge. It happened that the school burned down,

not once but twice, and the lands were ultimately transferred to Saskatchewan and now

form part of the townsite of La Ronge. The plaintiffs submit that the lands were

originally set aside as an Indian Reserve and remain so because they were never

- 206 -

surrendered. The defendants submit that the Department of Indian Affairs provided the

school and operating funds, but never created an Indian Reserve by doing so.

[300]

As with the Candle Lake lands, the issue here is whether an Indian Reserve

was created. And yet there is something of a difference. In the case of Candle Lake, the

written historical record clearly sets out what transpired and it was necessary only to

determine the effect of the actions taken. In the case of the La Ronge school lands the

historical record is not so clear. Therefore, it is necessary to decide what occurred and

then to determine its effect.

(1) The Facts

[301]

I begin this factual narrative by quoting an anonymous, undated

handwritten memorandum.

The Indians in question come under Treaty 6.

The drill for setting aside an area for school purposes

is: -

(1)

Acquire land and establish it as an Indian

Reserve.

(2)

Have Band pass a resolution setting aside such

land as is necessary for school purposes, for so long

as it is used for that purpose.

Telegram hereunder

[Exhibit P-1, p. 112]

- 207 -

I do not have the telegram “hereunder” and I do not know who was the recipient of the

memorandum. In any event, the plaintiffs submit that this document clearly indicates that

schools were to be established on Reserves and sets out the process to be followed. I

shall later return to this.

[302]

Following is what happened in respect to the residential school. After the

signing of the Adhesion Agreement to Treaty No. 6 in 1889, the Department of Indian

Affairs established a day school at Montreal Lake and another at Little Hills which was

some nine miles from Lac La Ronge. The schools were not very successful because of

the limited talents of the teachers and the poor attendance by the pupils who were

required to move about with their families who lived an unsettled life (Ex. P-2, p. 333 and

Ex. P-2, p. 335). It appears from the 1899 report of Mr. W.J. Chisholm, Inspector of

Indian Agencies, that the Department closed the schools in 1898, but the Church

Missionary Society continued to operate them with “. . .the teachers doing rather a

missionary than an educational work. . . .” (Ex. P-2, p. 401).

[303]

However, down through the years there had been discussion about

schooling for the Indian children. As early as January 25, 1890, Commissioner Hayter

Reed, in a memorandum to Mr. Vankoughnett, the Deputy to the Superintendent General

of Indian Affairs, advised that the Indians at Lac La Ronge wished to have Reserves set

aside in the several places where they were then located rather than in one common

location. Mr. Reed favoured this, but recognized that the missionaries might wish

otherwise. To overcome that problem he suggested a common reserve for mission

purposes, which would presumably include schooling.

- 208 -

The missionaries may probably view the idea of a

Reserve in common with more favour, as more convenient

for their work, but I would suggest that it will answer the

purpose, if we reserve a centrally situated parcel of land for

Mission purposes.

[Exhibit P-1, p. 163]

On February 1, 1890, Mr. Vankoughnett reported to the Minister who appears to have

approved the suggested approach as on March 1, 1890, Mr. Hayter Reed wrote to Rev.

Archdeacon J.A. MacKay as follows:

. . .—When he [the surveyor] goes up there it is proposed

instead of having one large Reserve to allow the Indians

where they desire it to take their allotments where they now

have them around the Lake, and locating a small reservation

(where it was decided to place the large one) for Mission

purposes and such Indians asreally [sic] desire to be at that

part—. . . .”

[Exhibit P-1, p. 168]

Considerable correspondence then took place about where Reserve Lands should actually

be set aside.

[304]

In a report dated October 1, 1891 a Mr. Campbell spoke of the arrangement

for several small reserves and near the end said this about the day school at Little Hills.

I visited the school at Little Hills, but was not very

favourably impressed.

The Teacher Mr. Hunt, one of the Band, no doubt

does his best, but that is as much as can be said in his favour.

- 209 -

The Venerable Archdeacon J.A. MacKay is alive to the

situation, and is awaiting an opportunity to make a change.

[Exhibit P-1, p. 230]

Then in the annual report of November 5, 1895, the possibility of a boarding school was

raised.

The prospect of having a boarding school was then

enquired about. After ascertaining that at least 30 children

and possibly many more could be secured, I explained the

difficulties that lay in the way, such as the great expense that

would be incurred in supplying the building material and

furniture, and the difficulty in engaging a teacher, such as

the Department would like, to accept a position in such a

remote spot.

The Chief says he does not think the children are

getting on so well as they should under the present teacher,

but the Rev. Archdeacon McKay informed me afterwards

that the teacher, who is an Indian, is very painstaking and is

doing well considering the irregular attendance of the

children.

[Exhibit P-1, p. 261]

However, the matter did not move forward.

[305]

In a letter dated January 10, 1898, Archdeacon MacKay described for Mr.

A.E. Forget, the Indian Commissioner, certain problems with the school at Little Hills

(Ex. P-2, p. 333). The Commissioner then sent a copy of the MacKay letter to Mr. J.D.

McLean, Secretary of the Department of Indian Affairs and made these comments.

- 210 -

. . .From this letter it will be seen that there is little hope of

the Church Authorities being able to secure the services of a

more competent teacher than the one now in charge. This

coupled with the small and irregular attendance prevailing at

that School, the question arises whether it is worth while to

keep such a school open.

[Exhibit P-2, p. 335]

By letter dated February 16, 1898, the Secretary informed him that it would not be

advisable to close the school. (Ex. P-2, p. 336).

[306]

Later that same year, in his report of September 8, 1898, Indian Agent H.

Keith raised the school issue.

My own opinion is the School is no good and is only

a bill of expense the way it has been conducted, I asked

some of the Indians why they did not send their children

more regularly, but they say they have to take them off

hunting. . . .

In view of the many Industrial Schools in the country

which have to be kept going, I am afraid to suggest that a

boarding School at either Montreal Lake or Lac La Ronge,

the latter the best point, be established and that the 2 day

schools, which with the Church grant, cost nearly $1000.00 a

year to keep up, as they are doing no good, be closed, I do

not mean boarding school of an expensive kind, let the

Indians furnish the logs and work at the building and supply

so much fish at intervals, grow a large quantity of

vegetables, as they will grow well at Lac La Ronge, keep a

cow or two, all of which would reduce the expense

considerably.

[Exhibit P-2, p. 362]

- 211 -

That brings us back to the report of Mr. W.J. Chisholm, of October 28, 1899, referred to

earlier, in which he stated the Department had closed the schools, but the Church

continued to operate them (Ex. P-2, p. 401).

[307]

Indian’s desire to have a boarding school.

Chief James Roberts and the Councillors of his band

In his next report of September 25, 1900, Inspector Chisholm wrote of the

desired to have an application communicated to the

Department on their behalf for the establishment of a

Boarding School at Lac La Ronge. They maintain that the

Indians of their band are anxious for the education of their

children and yet cannot avail themselves of the benefits of a

day school, since even those who have their houses at Little

Hills remain there but for short intervals during the year.

The subject came up incidentally at a former treaty payment,

but not until the present did it assume the nature of an

application. They maintain further that their children learn

nothing at the day school when they attended. Concerning

this I may refer to the accompanying report which indicates

a very low state of efficiency.

A well equipped Boarding School at this point would

fill a sphere of great usefulness, not only for this band but for

the others adjacent. The school population is large. All

might not attend; but through such a school education would

doubtless reach a large number, whereas through the day

school it reaches none. . . .

[Exhibit P-2, p. 417]

A handwritten notation on the margin of the above suggests that the matter be taken up

with the Rev. Archdeacon J.A. MacKay and the results reported to the Department. As so

often happened, the project advanced very slowly, but advance it did. Construction

- 212 -

appeared imminent by the summer of 1905. In his annual report dated September 22,

1905, Inspector Chisholm advised as follows:

The Lac la Ronge day school was not in session on

either occasion as I passed. It is situated at Little Hills, some

nine miles west of Lac la Ronge. It may, I presume, be taken

for granted that it will be closed as soon as the new Boarding

School is prepared to receive pupils.

[Exhibit P-2, p. 444]

. . .

There is nothing as yet to mark the site of the

proposed boarding school except the clearing from half an

acre of land of the light growth of poplar timber with which

it was covered. But it was expected the saw-mill referred to

in paragraph 3 above would be in operation about the end of

August, and shortly after that the work of building would

begin. The site selected is as healthful and as suitable in

every respect as could be found in the locality.

[Exhibit P-2, p. 445]

[308]

In fact, the school did not get started until 1907. This appears in notes

dated September 9, 1907, by an unknown author. They describe in some detail the

circumstances of the boarding school.

NOTES TAKEN RE THE LAC LA RONGE BOARDING

SCHOOL.

9th September, 1907.

----------------Dimensions of School Building-----------------

- 213 -

Main building,

90 x 26 feet, 2 stories high, shingled.

Kitchen attached to main building 24 x 20 ft.

Store house 70 ft from " 10 x 15 "

Milk " 80 ft " "

Fish " 100 ft "

"

" 12 x 12

" 10 x 12

"

The main building is on a stone foundation. The

school was started on the 1st January, 1907, with an

attendance of 15 pupils, was started in the building being

now used for kitchen, the main building which was begun to

be built (above the foundation) in the first week of

November, 1906, was not sufficiently completed to carry on

the school in it until well on in the summer of this year '07.

At the present time there are 14 boys and 20 girls attending

school. Of that number there are 12 boys and 17 girls

Treaty, and 2 boys and 3 girls non-treaty, taught by a lady-

teacher, Miss A. Cunningham, who holds no certificate, but

has been teaching on a permit in Manitoba; came here on the

20th of last June, prior to that time the school was kept by

Mr. William Bear, who at one time taught in the school kept

on John Smith’s Reserve in the Carlton Agency.

There are no fire escapes on the school building at the

present time, but the intention is to have a balcony on the

front of the building its full length at the base of the upper

story, with doors at each end of it opening into the two

dormitories, and a stair at each end of the balcony leading to

the ground, which will prove a means of safety to the

occupants of the building. The building is well and

substantially built of spruce, it is not yet finished, and will

not be so for some time yet, owing to the scarcity of labor;

but, however, considerable progress is being made with what

is required yet on the building to make it habitable for the

winter.

- 214 -

The staff at the school establishment at present,

consists of the Rev. J. Brown, Principal and Mrs. Brown as

matron. Miss A. Cunningham, teacher, Mr. Wm. Bear also

connected with the religious teaching and conducting of the

school, etc; Samuel Abraham and his wife, who are acting as

fisherman and seamstress respectively for the school.

There is about one acre and a half of land under

cultivation in connection with the school in which a very

fine crop of potatoes is growing as well as cabbage, turnips,

carrots, onions, lettuce and pease [sic].

With reference to expenditure at the school, a report

upon that was sent to the Department of Indian Affairs in

April last for the year ending 31st March, 1907.

There is the following live stock belonging to the

school, viz: -

2 Milch [sic] cows

1 Heifer

1 young bull

2 team horses (Geldings)

These animals were paid for by The Women’s Auxiliary,

who help the School in various ways.

Re the sanitary condition of the school children, and

the school building, etc. vide Doctor H.A. Stewart’s report in

that connection.

The following books are required for the use of this

School, viz: -

Arithmetic,

Geography

History and

Text books such as are being used in the

public schools.

- 215 -

[Exhibit P-2, p. 509]

[309]

Throughout the years during which the boarding school was coming into

existence, there were discussions about setting aside Reserve Lands for the Lac La Ronge

Indian Band. In a letter dated June 6, 1908, Mr. J.D. McLean, Secretary, Department of

Indian Affairs, instructed Inspector Chisholm to take certain action in respect to the

Indians’ request for a Reserve.

This matter originated in a letter from the said Amos

Charles, Chief of the Lac la Ronge Band dated 30th August,

1906, in which he requested that a reserve should be made

out for him and his band at Lac la Ronge. The Department

is prepared to accede to this request and to take the necessary

action to secure the land. I shall be obliged as above

requested if you will go fully into the matter with Mr. Agent

Borthwick, interview the Indians of Lac la Ronge, decide on

the locality of the reserve and its approximate extent and

report fully on the matter.

[Exhibit P-2, p. 584]

[310]

On December 27, 1908, Inspector Chisholm reported that he had met with

the Indians at Lac La Ronge and Stanley and that they requested “. . .that the remainder of

the lands to which they are entitled be located in several small reserves. . . .” (Ex. P-2, p.

599). Both he and Agent Borthwick supported the request. Mr. Duncan Campbell Scott,

who was then an accountant with the Department of Indian Affairs, did the same in a

memorandum dated January 11, 1909, to the Deputy Superintendent General (Ex. P-2, p.

602). On January 20, 1909, Secretary McLean wrote to the Secretary, Department of the

Interior and advised him that the Department of Indian Affairs intended to survey

Reserves for the Lac La Ronge Indian Band at six sites around Lac La Ronge. He stated

- 216 -

that he “. . .shall be obliged if you will be good enough to have a note made of the

localities and take such steps as may be necessary to insure that no grants of land, or of

timber, or any other rights are made until the said surveys have been executed” (Ex. P-2,

p. 604).

[311]

The Department of the Interior had concerns about mineral claims in the

area which were not to be included within any lands set aside as Indian Reserves. On

May 11, 1909, a blueprint was sent to the Secretary, Department of Indian Affairs. It

showed the locations of mineral claims around Lac La Ronge. It also showed a “C. of

Eng. Mission” on the west side of Lac La Ronge near the mouth of the Montreal River

(Ex. P-3, p. 621). On July 5, 1909, Secretary McLean instructed Mr. J. Lestock Reid,

D.L.S., to survey the desired Indian Reserves.

Referring to the recent instructions to you to proceed

to survey the surrendered portions of the Key Reserve. I

have to say that as it appears a number of prospectors are

entering the Lac La Ronge district it is desired to lay out the

proposed reserves in that locality as soon as possible. I have

therefore to request you to proceed to Lac La Ronge for that

purpose as soon as you have completed the work in

connection with the surrendered and new reserves of the

Thunderchild, Moosomin and Saulteaux Indians.

Before proceeding to the said district please interview

Mr. Inspector W.J. Chisholm who has reported at length on

the reserves required at Lac La Ronge. These are indicated

as follows:

[The locations are described.]

These six suggested locations correspond roughly

with the present grouping of the Indian population

throughout the district; for they live for the most part in

- 217 -

settlements around the lake and on the Churchill, at points

which they find most favourable for fish and most

convenient to their hunting grounds.

Enclosed herewith is a blue print copy of a plan

showing the mining locations at Lac La Ronge that have

been dealt with by the Dept. of the Interior. That Dept. is

very decided in its instructions that these mining locations

are not to be interfered with or encroached upon by the

proposed Indian Reserves, you will please guide yourself

accordingly.

Since the preparation of the said plan and before you

will arrive at Lac La Ronge undoubtedly other mining

locations will have been located. These also should not be

encroached upon as it will be very difficult to remove any

previous mining claim or portion of one if it should be

included in an Indian Reserve.

When you have decided on a location for a reserve

and especially when you have completed the survey of it

(and of all the proposed reserves) please advertise the fact in

the locality by every means in your power and let it be

known that no trespass on an Indian Reserve after it has been

located and surveyed will be allowed.

[Exhibit P-3, p. 623]

No mention was made of the Indian boarding school or the lands on which it was situated.

[312]

Some two weeks later Archdeacon MacKay wrote to Secretary McLean

requesting that Mr. Reid survey the school site.

I am informed that Mr. Lestock Reid is ready to

proceed shortly to Lac la Ronge to [illegible] out reserves

under instructions from your Department I would

- 218 -

respectfully request that the land on which the Indian

Boarding School is situated may be surveyed by Mr. Reid.

[illegible] claim for the School about half a mile frontage on

Lac la Ronge and about a quarter of a mile back.

I would also request that the School be allowed a

small Timber Reserve on the Big Stone Lake, anything from

half a mile to one square mile. . . .

[Exhibit P-3, p. 626]

Counsel for the plaintiffs suggests the illegible word is “Its” whereas counsel for

Saskatchewan suggests it is “We”. I simply cannot make it out. In any event, by letter of

July 29, 1909, Mr. J. Lestock Reid was instructed to do the survey of the school lands, but

nothing was to be done in respect of the timber reserve.

Referring to your proposed surveys of Indian reserves

at Lac La Ronge I beg to inform you that in accordance with

the representations made by Ven. Archdeacon J.A. MacKay

it has been decided to allot to the Indian boarding school at

Lac La Ronge a tract of land having a frontage on the Lake

of about half a mile with a depth of about a quarter of a mile.

I have to request you tobe [sic] good enough to consult with

Mr. MacKay who is probably now at Battleford, or with the

Principal in charge of the school, and to survey the said tract

of land in the usual manner. The general instructions

regarding surveys for this Department with which you are

familiar will cover this case.

Mr. MacKay also requested that a timber limit be also

surveyed for the school but the Department has decided that

no action be taken in this direction for the present.

[Exhibit P-3, p. 629]

- 219 -

On August 6, 1909, Secretary McLean advised Archdeacon MacKay as follows:

Replying to your letter of the 21st ult. I beg to say

that the Department has instructed its surveyor, Mr. J.

Lestock Reid, D.L.S., to allot to the Lac la Ronge Indian

Boarding School a tract of land as requested by you and

asked him to consult with you or with the Principal.

[Exhibit P-3, p. 630]

[313]

Mr. J. Lestock Reid reported to Secretary McLean by letters dated

December 30, 1909, and January 17, 1910. They respectively read:

I am sending in to the Department today the plans and

field notes of the following Indian Reserves: -

(1)

(2)

(3)

(4)

Indian Reserve No. 156

"

" 156A

" 156B

" 156C

Indian School Lands at Lac la Ronge.

[Exhibit P-3, p. 639]

Am sending in to the Department the following plans

and field notes, being portion of my last season’s work.

(1.) Stanley Indian Reserve, No. 157.

(2.) Indian Reserve No. 157 A.

(3.) Indian Reserve No. 157 B.

(4.) Indian Reserve No. 157 C.

(5.) Indian Reserve No. 157 D.

(6.) Indian Reserve No. 157 E.

(7.) Indian Reserve No. 158.

- 220 -

(8.) Indian Reserve No. 158 A.

(9.) Indian Reserve No. 158 B.

(10, Indian Reserve No. 158 C.

[Exhibit P-3, p. 678]

Thus he surveyed thirteen parcels of land described as Indian Reserves and one parcel

described as school lands.

[314]

On March 4, 1910, Secretary McLean wrote two letters to Mr. P.G. Keyes,

Secretary, Department of the Interior. In the first he enclosed plans of the thirteen Indian

Reserves surveyed by Mr. J. Lestock Reid in the area of Lac La Ronge. He also enclosed

a “Key Plan” which showed the approximate locations of the Reserves and the Indian

School land (Ex. P-3, p. 682 and Ex. P-20, p. 6210). The letter concluded with the

request that the Reserves be confirmed at an early date by an Order-in-Council. The

second letter reads as follows:

I beg to enclose you a copy of the plan of the

Industrial School lands at Lac La Ronge, Sask, surveyed by

J. Lestock Reid, D.L.S., of this Department last season.

I shall feel obliged if you will have the necessary

Order in Council transferring these lands to this Department

passed at an early date.

[Exhibit P-3, p. 684]

As it happened, it was decided by the Department of the Interior to hold the lands under

reservation until the Dominion Lands survey system was extended to Lac La Ronge (Ex.

P-3, p. 761). In the end, the Orders-in-Council confirming the reserves were not passed

until 1929-30.

- 221 -

[315]

The Annual Report of the Department of Indian Affairs for the year ending

March 31, 1910, discusses Boarding and Industrial Schools across Canada. In the part

dealing with the Boarding School at Lac La Ronge as prepared by the Principal, Rev.

M.B. Edwards, the school is described as being located on land which is “. . .mission

property, and belongs to the Church of England. . .” (Ex. D-10, p. 465).

[316]

Nothing of significance happened for the next twenty years. The

Department provided funding and the school appears to have carried out the role for

which it was established. Then in 1920 the La Ronge settlement was surveyed into lots.

The land on which the school was located was within Lot 12, which contained 76 acres.

This was larger than the 70.1 acres surveyed by Mr. J. Lestock Reid, but nothing turns on

this. In that same year two further things occurred. First, the Church of England claimed

ownership of Lot 12 and Lot 9, the latter being used to grow hay and vegetables used by

the school (Ex. P-4, p. 910 and Ex. P-4, p. 914). Secondly, with the financial assistance

of the Department, a new Boarding School was being constructed as the other had burned

down.

[317]

As a result of the Church’s claim, the Controller of the Department of the

Interior, Mr. N.O. Cote, wrote to Mr. J.D. McLean, now Assistant Deputy and Secretary,

Department of Indian Affairs, on September 12, 1923, and inquired whether the “Indian

School Lands No. A” described in the plan of 1910 corresponded to the Lot 12 claimed

by the Church. He also inquired whether the Department objected to the sale of the land

to the Church or did it want the land transferred to the control of the Department (Ex. P-4,

p. 970). On September 19, 1923, Mr. A.F. MacKenzie wrote to Mr. McLean as follows:

- 222 -

In reply to your letter of the 12th instant, I have to

inform you that the above mentioned lot (Lot 12 La Ronge)

embraces the land surveyed by J. Lestock Reid, D.L.S., and

applied for in Departmental letter of the 4th March 1910. It

is the desire of this Department that this lot be transferred to

the control of this Department for the purposes of the Indian

boarding school and hospital, as the above mentioned

buildings have been erected on this lot by the Department.

[Exhibit P-4, p. 971]

[318]

Further inquiries were made and they culminated in this letter of October

22, 1923, by Archdeacon J.A. MacKay.

Referring to the enclosed letter from the Department

of the Interior addressed to you forwarded to me by Mrs.

Malaher I have to explain that the Church of England has no

claim to the lots therein mentioned. The large lot of 76 acres

has a frontage of half a mile on Lac la Ronge. It was

surveyed at my request as a School Reserve when I was

building the original Boarding school, and it belongs to the

Indian Department with all the school buildings. The

smaller lot, 8 acres, was cleared for purposes of cultivation

while I was in charge of the school, and I had a special grant

from the Indian Department for the purpose. The whole

thing, school buildings and land, belongs to the Indian

Department. When we handed over the school to the

M.S.C.B. we, that is the Diocese, had no property to hand

over. All that we handed over was the control. If Mr. Hives

has made affidavits or statutory declarations in support of the

claims of the Church of England, he has done so on his own

responsibility or under instructions from the M.S.C.B. The

Church has no claim and has no object in entering a claim

for the land. The Government has built the school and the

Government is supporting the school, and the whole property

belongs to the Indian Department of the Government.

- 223 -

[Emphasis in original]

[Exhibit P-4, p. 973]

By letter dated May 20, 1924, the Bishop of Saskatchewan, Rev. G.E. Lloyd, relinquished

the Church’s claim to the La Ronge lands (Ex. P-4, p. 994). Both Lot 9 and Lot 12 were

“. . .transferred to the control of the Department of Indian Affairs for the purpose of the

Indian Boarding School and Hospital at La Ronge, Saskatchewan” by Order-in-Council

P.C. 619 of May 4, 1925 (Ex. P-4, p. 1005).

[319]

In time the Church of England obtained title to a part of Lot 12 on which

stood its church and mission house. By Order-in-Council P.C. 21, dated January 3, 1947,

28.4 acres were transferred to the Province of Saskatchewan (Ex. P-8, p. 2344). Almost

immediately after, on February 2, the boarding school burned down for the second time.

By Order-in-Council P.C. 6002, dated December 13, 1950, the balance of the lands were

transferred to the Province (Ex. P-9, p. 2529).

(2) La Ronge School Lands - A Reserve?

[320]

I have concluded that the school lands were not established as an Indian

Reserve and this is for reasons similar to those respecting the Candle Lake lands. Neither

the documentary record nor the viva voce evidence, whether viewed separately or in

conjunction with each other, support the conclusion that a Reserve was created. In fact,

they suggest the contrary. While the Dominion Government established a school, it took

no steps to establish a Reserve. Unlike the Candle Lake lands, the evidence does not

even suggest an intention to establish a Reserve on the part of the Dominion Government.

- 224 -

[321]

Once more the discussion must commence with Treaty No. 6 and this

particular provision.

And further, Her Majesty agrees to maintain schools

for instruction in such reserves hereby made, as to her

Government of the Dominion of Canada may seem

advisable, whenever the Indians of the reserve shall desire it;

It is argued on behalf of the plaintiffs that the Treaty obligation of the Crown was to

maintain schools and to do so on Reserves. They point to the telegram earlier set out as

demonstrating the correctness of this argument. Thus, they say that you could not have

an Indian school without it being on a Reserve and therefore if you have an Indian school

the land on which it is situate, of necessity, must be an Indian Reserve. I accept neither

the proffered interpretation of the Treaty nor the logic of the reasoning that the presence

of a school mandates a conclusion that the land is an Indian Reserve.

[322]

The Treaty provision stipulates several things including these.

(1)

(2)

(3)

The Crown will maintain schools.

The schools will be located in reserves.

There are two qualifications in respect of (2) above:

(a)

(b)

the Indians of the reserve shall desire it, and

the Crown must deem it advisable.

- 225 -

Thus, if the conditions are met, then the Crown must provide a school in the Indian

Reserve. To my mind, that is the situation contemplated by the telegram. If events

transpired as contemplated by Treaty or as described in the telegram, then it would follow

that the school lands were Reserve lands.

[323]

However, Treaty No. 6 and the provision quoted do not preclude the

Dominion of Canada from establishing schools off of or away from Reserve lands for the

benefit of Indian children. Should a school not be desired by the Indians, but be deemed

advisable by the Crown, then the school could not be constructed on Reserve land, but it

could be constructed elsewhere. Conversely, if the Indians desired a school on their

Reserve, but the Crown did not deem it advisable on that Reserve, it could be constructed

elsewhere. In short, the Treaty created an obligation. The Crown had a duty to fulfill that

obligation. Yet the Crown did not always have to act within the parameters of what was

contemplated by the Treaty provision. This being so, it could maintain a school

elsewhere than on Reserve land and that is the very thing it did at La Ronge,

Saskatchewan.

[324]

It is useful to look at the circumstances and events which preceded the

construction of the boarding school in 1907. Initially, around 1900, the Department

established two day schools; one at Montreal Lake and one at Little Hills. These schools

were operated by the Department with the assistance of the Anglican Church. In fact, the

Church Missionary Society appears to have taken over the schools in 1898 (Exhibit P-2,

p. 401). It has not been suggested that these schools were on Indian Reserves, but I

cannot be certain about this. What is certain is that the Department could be flexible

about schooling and did work with the Church in providing schooling. Thus it is not

strange that in later years there is co-operation with Archdeacon MacKay.

- 226 -

[325]

A somewhat unique situation existed in the La Ronge area. The Indians did

not want a single large Reserve, but desired several small ones. Ultimately thirteen were

established. Furthermore, there were Bands, other than the Lac La Ronge Indian Band,

situated in the general area and they also required schooling. It was not feasible to

construct and maintain schools on all the reserves. Some other approach had to be found.

[326]

The problem was recognized as early as 1890 when Commissioner Hayter

Reed made these observations in a memorandum dated July 25, 1890.

The missionaries may probably view the idea of a

Reserve in common with more favour, as more convenient

for their work, but I would suggest that it will answer the

purpose, if we reserve a centrally situated parcel of land, for

Mission purposes.

[Exhibit P-1, p. 163]

Then on March 1, 1890, he wrote to Archdeacon McKay as follows:

. . .When he [the surveyor] goes up there it is proposed

instead of having one large Reserve to allow the Indians

where they desire it to take their allotments where they now

have them around the Lake, and locating a small reservation

(where it was decided to place the large one) for Mission

purposes and such Indians asreally [sic] desire to be at that

part. . . .

[Exhibit P-1, p. 168]

[327]

These quoted pieces of correspondence are not without difficulty. The two

documents from which they are extracted are speaking about Indian Reserves and when

- 227 -

the noun “Reserves” is used, as above, in the upper case, reference is obviously being

made to an Indian Reserve. It is not so clear when the verb, “reserve” or the noun

“reservation” is used. One might wonder why the word “reservation” appears rather than

“Reserve” if the writer had in mind an Indian Reserve. The word reservation in its

generic meaning would be appropriate and correct if it was intended to simply reserve

land for mission purposes. This appears to be what was contemplated in the first writing.

However, things become murky when one looks to the second writing which seems to

speak of a second purpose; that is, for “. . . such Indians as really desire to be at that part.”

In the end I do not know the answer, although I tend to the view that it was contemplated

that land would be set aside for Mission purposes and not as an Indian Reserve.

[328]

In my opinion, that is what actually happened, although it took some fifteen

years. In his report of September 22, 1905, (Ex. P-2, p. 444) Inspector Chisholm speaks

of the pending boarding school. He states that the site has been selected, but is yet

unmarked, and some clearing has been done. In any event by September 7, 1907, the

boarding school was operational.

[329]

The year of commencement is important. Throughout the years, beginning

in 1889 to 1900, there had been discussions about establishing Reserves at Lac La Ronge.

Yet nothing concrete happened until June 6, 1908, when Secretary McLean wrote to

Inspector Chisholm advising the Department was prepared to accede to the Indians

request for a Reserve and instructing him to inquire into the matter, decide on a locality

and the extent of the reserve and report fully (Exhibit P-2, p. 584). Inspector Chisholm

reported back on December 27, 1908. Instructions to conduct surveys in the Lac La

Ronge area were sent to Mr. J. Lestock Reid on July 5, 1909.

- 228 -

[330]

What is significant is that this last date is almost four years after the site

was selected for the boarding school and almost two years after the school was

operational. At that time the school was not on Reserve lands. This clearly demonstrates

that the Department could and would maintain schools other than on Reserve land. It also

shows that the procedure outlined in the telegram earlier quoted was not mandatory, but

that the Department could operate in a very different way.

[331]

I next turn to the very letters of instruction, which are two in number, in an

attempt to ascertain the Department’s intention. It must be remembered that we are here

dealing with a different Treaty provision and one which does not speak of someone being

deputed. In reality the power rests with the Department and it is for the Department to

decide what and how things will be done.

[332]

The first letter of instruction is dated July 5, 1909, and is addressed to Mr.

J. Lestock Reid. The letter instructs him to survey Indian Reserves for the Lac La Ronge

Indian Band and then to let it be known that trespass on a reserve will not be allowed.

When you have decided on a location for a reserve

and especially when you have completed the survey of it

(and of all the proposed reserves) please advertise the fact in

the locality by every means in your power and let it be

known that no trespass on an Indian Reserve after it has been

located and surveyed will be allowed.

[Exhibit P-3, p. 623]

- 229 -

In this letter absolutely no mention is made of the school lands. This strongly suggests

there was no intention on the part of the Department to establish the school lands as a

Reserve.

[333]

The second letter of instruction is dated July 29, 1909, and while it is

reproduced earlier, I do so again for ease of reference and because of its importance.

Referring to your proposed surveys of Indian reserves

at Lac La Ronge I beg to inform you that in accordance with

the representations made by Ven. Archdeacon J.A. MacKay

it has been decided to allot to the Indian boarding school at

Lac La Ronge a tract of land having a frontage on the Lake

of about half a mile with a depth of about a quarter of a mile.

I have to request you tobe [sic] good enough to consult with

Mr. MacKay who is probably now at Battleford, or with the

Principal in charge of the school, and to survey the said tract

of land in the usual manner. The general instructions

regarding surveys for this Department with which you are

familiar will cover this case.

[Exhibit P-3, p. 629]

Several things should be noted about this letter. To begin, it was written at the behest of

Archdeacon McKay. It was not initiated by the Department. Next, the earlier letter

expressly spoke of Indian Reserves whereas this letter is devoid of that terminology. In

addition, the letter speaks of allotting land to the Indian boarding school and not to an

Indian Band. Finally, there is no mention of consultation with the Indians which is a

Treaty requirement. Rather, consultation is to be with Archdeacon McKay or the

Principal. This is understandable if the land is for the school and not the Band. When I

weigh all of this it seems clear that the Department had no intention to create an Indian

Reserve contiguous to the school.

- 230 -

[334]

I find confirmation of this in what followed. The two reports of Mr. J.

Lestock Reid, dated November 30, 1909, and January 19, 1910, state as follows and I

again reproduce them because of their importance.

I am sending in to the Department today the plans and

field notes of the following Indian Reserves: -

(1)

(2)

(3)

(4)

Indian Reserve No. 156

"

" 156A

" 156B

" 156C

Indian School Lands at Lac la Ronge.

[Exhibit P-3, p. 639]

Am sending in to the Department the following plans

and field notes, being portion of my last season’s work.

(1.) Stanley Indian Reserve, No. 157.

(2.) Indian Reserve No. 157 A.

(3.) Indian Reserve No. 157 B.

(4.) Indian Reserve No. 157 C.

(5.) Indian Reserve No. 157 D.

(6.) Indian Reserve No. 157 E.

(7.) Indian Reserve No. 158.

(8.) Indian Reserve No. 158 A.

(9.) Indian Reserve No. 158 B.

(10.) Indian Reserve No. 158 C.

[Exhibit P-3, p. 678]

Mr. Reid obviously had read the letters of instruction as assigning two different tasks, the

one distinct from the other. He himself distinguished between Indian Reserves and

- 231 -

Indian School Lands. This was a man experienced in surveys and the creation of Indian

Reserves and he did not give the designation of Indian Reserve or a number to the school

lands.

[335]

Later, on March 4, 1910, Secretary McLean treated the plan prepared by

Mr. Reid in two different ways. On that date he wrote a letter to Mr. Keyes of the

Department of the Interior, enclosing the plans for the thirteen reserves, and requesting

that they be confirmed by Orders-in-Council. In a second and separate letter he

forwarded the plan of the school and requested an Order-in-Council transferring the lands

to the Department (Exhibit P-3, p. 632 and Exhibit P-3, p. 684). These acts clearly

establish the intent of the Department as to certain lands. It intended to establish them as

Reserves. As to other lands, they were for a school. While the Department was prepared

to accommodate Archdeacon McKay, it was never the intention to establish the boarding

school lands as an Indian Reserve.

[336]

In his letter of October 22, 1923, Archdeacon McKay, who was present

throughout, says the same thing.

. . .It [the boarding school] was surveyed at my request as a

School Reserve when I was building the original Boarding

School, and it belongs to the Indian Department with all the

school buildings.

[Emphasis in original]

[Exhibit P-4, p. 973]

I realize the purpose of the letter was to refute the suggestion that the Church of England

owned the land. However, knowing the involvement of Archdeacon McKay with the Lac

La Ronge Indian Band, I cannot believe he would not have stated the land was an Indian

- 232 -

Reserve were that the case. He was there from the beginning and surely would have

known the distinction.

[337]

It still remains to discuss the viva voce testimony of Senator James Miles

Venne and Daniel Babiuk along with the field notes of Mr. J. Lestock Reid. I deem this

necessary because it is here that one can find a suggestion that the school lands were

established as an Indian Reserve.

[338]

Senator Venne was born April 14, 1918. He is a former chief of the Lac La

Ronge Indian Band and presently is a Senator for that Band as well as the Federation of

Saskatchewan Indian Nations and the Prince Albert Band Council. He is the first person

named in the style of cause in this action.

[339]

The Senator attended the residential school at La Ronge from 1928 to 1936.

He testified as follows about the school and the surrounding area and in particular he said

this about survey markers.

Q

A

Okay. Now did you ever hear any stories from the elders about

how the school lands were selected? Did you ever hear any

stories about that?

Just once. I -- there was Okimuhkan --

THE COURT: I’m sorry.

A

Chief, Okimuhkan, Chief. But I could have said it in Cree

exactly what this man said, but there was a chief and there was

a minister, Archdeacon McKay, that went to see that place

where they want a school to be built like, hey, it was all heavy

timber, yeah, they didn’t mention the Chief, there was a chief

in Cree, hey, and the priest, Archdeacon McKay.

Q

And did the Chief and Archdeacon McKay pick out the land,

then, is that what you are saying?

- 233 -

A

Q

That’s what I heard, yeah, from this man, yeah.

Okay. Now do you know if that land was ever surveyed or

marked off on the ground in any fashion?

A

It was -- the only thing was many years after that we seen those

markers there for Indian reserves, the same markers, they are

bronze, hey, bronze metal. They were round, flat, and about

that long, hey, and on it:

“Dominion of Canada Land Surveys, seven years

imprisonment for removal”

And IR and a number, hey, for the reserve. Those were the real

markers --

Q

A

Okay?

-- and they were, they were school lands.

Q

A

Q

A

Q

Did you --

When we were in school we saw them, hey.

And these were markers for the school lands themselves?

Yeah, yeah.

Now did -- have you ever seen markers for some of the other

La Ronge band Indian reserves?

A

Yes, the same kind.

They are the same kind?

Same kind, yeah.

Q

A

. . .

Q

Now do you know if those reserve markers, or IR markers, are

still there?

A

Q

Not one except that on solid bedrock, hey, just a little piece

there.

There is still a little stub in the rock?

234

A

Q

A

Samuel Charles, Reverend Samuel Charles, found that hey.

Uhum?

I asked him to look for it, he said he was working for the

government then, standby crew, and that’s when he looked,

and he found that marker.

Q

A

Q

A

Q

Okay.

That’s the one I showed you, hey.

Yes.

Yeah, yeah.

Now do you recall approximately when those IR markers were

removed?

A

Well when -- after the CCF, the CCF government got in power,

hey, 1940's, shortly thereafter. I don’t know how I’m going to

put this, but there was a five-year policy from the federal

government, I’m not sure, but assimilation of all Indians in

Canada. I don’t know what that means either. But anyways,

shortly after that, Indian Affairs went around, and one of the

council over there, and took the medals, chief’s medals, a

medallion, and also the parchment where the treaties are

written down, all those. Right today there is about four bands

that still got those medals and whatnot.

Q

A

Q

A

Uhum.

The others, all gone.

Okay. So--

Since 19, early 1940's, after this government got into power.

[Trial transcript: pp. 481-485]

I do not question either the veracity or the recollection of Senator Venne. I accept he saw

survey markers as stated. What remains is to decide what conclusion should be drawn

from the markers when considered within the whole of the evidence.

235

[340]

When he submitted his reports, Mr. J. Lestock Reid, sent along his field

notes and plans and therein lies a problem for there are two sets of notes. In the first set,

which is unsigned, the corners of the school lands are shown as being marked with posts

bearing the inscription “IR” which would designate “Indian Reserve”. The second set of

notes, which is dated November 25, 1910, and bears the certification of Mr. Reid, shows

the corners of the school lands as being marked with posts bearing the inscription “MR”

which would designate “Mission Reserve”. The plan of the school lands submitted with

the first set of notes shows three corners marked “MR” and one marked “IR”. The plans

in the survey records of the Department of Indian Affairs shows the four corners marked

“MR”.

[341]

Mr. Daniel Babiuk, a retired surveyor, was qualified as an expert to give

opinion evidence about surveying. In the course of his testimony he spoke about the

notes and plans described above. He stated positively that the set of notes bearing the

certification were the official notes and the ones that a person should rely upon. As to the

other set of notes, he could not be certain but opined that they were working field notes.

He could not explain the discrepancies, but he accepted that the four corner posts may

have borne the inscription IR because that was what Mr. Reid had in his possession at the

time. Were such designations erroneous, it may well have happened that Mr. Reid was

requested to correct his notes. This happened from time to time. He also pointed out that

the notes and plan of the school lands did not describe corner monuments which one

would expect at the corners of an Indian Reserve.

[342]

When I consider the whole of this evidence, I am satisfied that Mr. Reid

installed corner posts bearing the inscription IR. That accords with the testimony of

Senator Venne and the unsigned field notes. Equally, I am satisfied that he used those

236

posts simply because they were at hand. The presence of the posts is not conclusive proof

that the school lands were established as an Indian Reserve. Even if Mr. Reid believed he

was surveying an Indian Reserve, it does not necessarily become such.

[343]

Rather, one must look to all the circumstances and particularly the intention

of the Department and how that intent is manifested in its instructions and subsequent

conduct. Assuming “IR” inscriptions were installed, it was done in error and later

corrected by Mr. Reid himself. This is consistent with the fact that following the surveys

the school lands were always treated differently than the lands designated as Indian

Reserves. In the end, I am more than satisfied that no Indian Reserve was created in

respect to the school lands.

J. FIDUCIARY RELATIONSHIP

[344]

There is a fiduciary relationship between Canada and Indian peoples. This

is beyond dispute and does not warrant a lengthy discussion. I simply refer to what I

believe are the two elemental authorities. In Guerin v. The Queen, [1984] 2 S.C.R. 335,

the subject matter was a surrender of Indian lands for lease to a golf club. At p. 376 Mr.

Justice Dickson (later Chief Justice) said this.

In my view, the nature of Indian title and the

framework of the statutory scheme established for disposing

of Indian land places upon the Crown an equitable

obligation, enforceable by the courts, to deal with the land

for the benefit of the Indians. This obligation does not

amount to a trust in the private law sense. It is rather a

fiduciary duty. If, however, the Crown breaches this

fiduciary duty it will be liable to the Indians in the same way

and to the same extent as if such a trust were in effect.

237

The fiduciary relationship between the Crown and the

Indians has its roots in the concept of aboriginal, native or

Indian title. The fact that Indian Bands have a certain

interest in lands does not, however, in itself give rise to a

fiduciary relationship between the Indians and the Crown.

The conclusion that the Crown is a fiduciary depends upon

the further proposition that the Indian interest in the land is

inalienable except upon surrender to the Crown.

An Indian Band is prohibited from directly

transferring its interest to a third party. Any sale or lease of

land can only be carried out after a surrender has taken

place, with the Crown then acting on the Band’s behalf. The

Crown first took this responsibility upon itself in the Royal

Proclamation of 1763. It is still recognized in the surrender

provisions of the Indian Act. The surrender requirement, and

the responsibility it entails, are the source of a distinct

fiduciary obligation owed by the Crown to the Indians. In

order to explore the character of this obligation, however, it

is first necessary to consider the basis of aboriginal title and

the nature of the interest in land which it represents.

While the Court was concerned with a surrender of lands, I believe the judgment has

wider application and extends to situations involving Crown management of lands and

assets in general. This appears to be supported by subsequent decisions. See Kruger v.

The Queen (1985), 17 D.L.R. (4th) 591 (F.C.A.); Canadian Pacific Ltd. v. Paul, [1988] 2

S.C.R. 654 (S.C.C.) and Mitchell v. Peguis Indian Band, [1990] 2 S.C.R. 85 (S.C.C.).

[345]

The second case is R. v. Sparrow, [1990] 1 S.C.R. 1075 in which the Court

was concerned with the interference of an aboriginal fishing right. At p. 1108, Chief

Justice Dickson said this.

In Guerin, supra, the Musqueam Band surrendered

reserve lands to the Crown for lease to a golf club. The

238

terms obtained by the Crown were much less favourable than

those approved by the Band at the surrender meeting. This

Court found that the Crown owed a fiduciary obligation to

the Indians with respect to the lands. The sui generis nature

of Indian title, and the historic powers and responsibility

assumed by the Crown constituted the source of such a

fiduciary obligation. In our opinion, Guerin, together with

R. v. Taylor and Williams (1981), 34 O.R. (2d) 360, ground a

general guiding principle for s. 35(1). That is, the

Government has the responsibility to act in a fiduciary

capacity with respect to aboriginal peoples. The relationship

between the Government and aboriginals is trustlike, rather

than adversarial, and contemporary recognition and

affirmation of aboriginal rights must be defined in light of

this historic relationship.

Then at p. 1110 he continued with these comments.

Section 35(1) suggests that while regulation affecting

aboriginal rights is not precluded, such regulation must be

enacted according to a valid objective. Our history has

shown, unfortunately all too well, that Canada’s aboriginal

peoples are justified in worrying about government

objectives that may be superficially neutral but which

constitute de facto threats to the existence of aboriginal

rights and interests.

By giving aboriginal rights

constitutional status and priority, Parliament and the

provinces have sanctioned challenges to social and economic

policy objectives embodied in legislation to the extent that

aboriginal rights are affected. Implicit in this constitutional

scheme is the obligation of the legislature to satisfy the test

of justification. The way in which a legislative objective is

to be attained must uphold the honour of the Crown and

must be in keeping with the unique contemporary

relationship, grounded in history and policy, between the

Crown and Canada’s aboriginal peoples. The extent of

legislative or regulatory impact on an existing aboriginal

239

right may be scrutinized so as to ensure recognition and

affirmation.

The constitutional recognition afforded by the

provision therefore gives a measure of control over

government conduct and a strong check on legislative power.

While it does not promise immunity from government

regulation in a society that, in the twentieth century, is

increasingly more complex, interdependent and

sophisticated, and where exhaustible resources need

protection and management, it does hold the Crown to a

substantive promise. The government is required to bear the

burden of justifying any legislation that has some negative

effect on any aboriginal right protected under s. 35(1).

[346]

Thus the Court moved from Crown accountability in respect to property and

its management to aboriginal rights and their preservation. From my reading of the

Sparrow judgment, it seems clear that the Court recognized a fiduciary relationship in

respect to aboriginal rights. This is borne out by the following remarks in Quebec

(Attorney General) v. Canada (National Energy Board), [1994] 1 S.C.R. 159 (S.C.C.) at

p. 185 where Mr. Justice Iacobucci said this on behalf of the Court.

This Court, in R. v. Sparrow, supra, recognized the

interrelationship between the recognition and affirmation of

aboriginal rights constitutionally enshrined in s. 35(1) of the

Constitution Act, 1982, and the fiduciary relationship which

has historically existed between the Crown and aboriginal

peoples. It is this relationship that indicates that the exercise

of sovereign power may be limited or restrained when it

amounts to an unjustifiable interference with aboriginal

rights. In this appeal, the appellants argue that the decision

of the Board to grant the licences will have a negative impact

on their aboriginal rights, and that the Board was therefore

required to meet the test of justification as set out in

Sparrow.

240

Further discussion to a like effect can be found in R. v. Badger, [1996] 1 S.C.R. 771

(S.C.C.); R. v. Van der Peet, [1996] 2 S.C.R. 507 (S.C.C.); R. v. Gladstone, [1996] 2

S.C.R. 723 (S.C.C.); R. v. Adams, [1996] 3 S.C.R. 101 (S.C.C.); R. v. Côtè, [1996] 3

S.C.R. 139 (S.C.C.); and Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010

(S.C.C.).

[347]

Two final things are noted. The categories of fiduciary relationships are

never closed and the obligation arises in those relationships which usually possess three

general characteristics.

(1)

(2)

(3)

The fiduciary has scope for the exercise of some discretion or

power.

The fiduciary can unilaterally exercise that power or discretion so as

to affect the beneficiary’s legal or practical interests.

The beneficiary is peculiarly vulnerable to or at the mercy of the

fiduciary holding the discretion or power.

See Frame v. Smith, [1987] 2 S.C.R. 99 (S.C.C.) at p. 134 and p. 136.

[348]

The plaintiffs submit that Canada failed in its fiduciary obligation in respect

to the Band Council Resolution of May 8, 1964, and in withdrawing its claim to the lands

at Candle Lake. As to the first, I hold the view that Canada had an obligation in 1964 to

ensure that the Lac La Ronge Indian Band did not wrongly or imprudently extinguish its

241

Treaty land entitlement and in carrying out that obligation it had a duty to fully inform the

Band about the various possible approaches. While different, I consider this situation to

be analogous to that in Guerin v. The Queen, supra. As well, while the facts are entirely

different, the requirement to make full disclosure is comparable to that discussed in

Baskerville v. Thurgood, [1992] 5 W.W.R. 193 (Sask. C.A.). This was not done and so

there was a breach of the duty. However, it has already been decided that the Band

Council Resolution was invalid because there was no informed consent. The resolution

having been set aside for that reason, there is no need to place reliance on the fiduciary

duty itself. It becomes integrated into the subject of informed consent.

[349]

I see the situation at Candle Lake to be different. Here one is addressing

Reserve creation and one looks to Treaty No. 6 itself to determine the rights and

obligations of the Band and Canada. There is no justification for speaking about a

fiduciary relationship and obligation in conjunction with or super-imposed upon the

Treaty obligation to set apart Reserve Lands. It is sufficient to ascertain whether or not

there has been compliance with that specific Treaty obligation and to proceed from there.

[350]

It must be remembered that Canada has an exclusive role in creating Indian

Reserves. It has the ultimate right to select the lands. While there must be consultation

with the Indians and while it is expected that the Crown will act with honour, the right of

selection is otherwise unfettered. I have found that in respect to the lands at Candle Lake

the Crown made a selection, but it was not unqualified or definitive. Rather, it was

contingent upon obtaining the land from Saskatchewan, and when that did not occur, for

whatever reason, Canada was entitled to terminate the project.

[351]

Having done that, it had not fulfilled its Treaty obligation to set aside

Reserve lands. However, that being so one should not speak of damages for breach of

242

some fiduciary duty, but rather of the obligation to fulfill the Treaty promise. In

accordance with that approach Canada subsequently created additional Reserves.

[352]

Mention has been made of the fact that the Candle Lake lands have proven

to be valuable because of resort development and there is a suggestion that somehow this

impacts on the question of Canada’s fiduciary duty. I do not see this. There is no

question that development has occurred and this was foreseen to some extent at the time

when the lands were being considered. However, had the lands been set aside as a

Reserve there is no assurance that development would have occurred. It thus becomes a

highly speculative conclusion that there has been some loss sustained as a result of not

getting the specific lands at Candle Lake, but other land instead.

[353]

One also must not lose sight of s. 10 of the Natural Resources Transfer Act.

That section imposes upon Saskatchewan a constitutional obligation to provide land to

Canada to fulfill Treaty land entitlement. At the same time, however, it grants to

Saskatchewan a constitutional right to have a say as to what lands will be provided. On

the evidence presented, there is no basis upon which I can conclude that Saskatchewan

would ever have acquiesced to Canada’s request for the lands at Candle Lake. As a

result, Canada did not enjoy a power which it could unilaterally exercise.

[354]

There are two possible scenarios. The one is that which is last described

where the subject lands had passed to Saskatchewan. In such a case a fiduciary

relationship does not arise for all the characteristics are not present. Canada does not

possess an exclusive power or discretion. The other scenario is where the land did not

pass to Saskatchewan, but remained with Canada. In that instance Canada had the power

or discretion to create a Reserve, but that was conferred by Treaty and it was open to

Canada to decline to set aside certain lands, for whatever reason. Such a decision may

243

disappoint or distress a Band, but that does not constitute a breach of a fiduciary duty. It

simply is a breach of a Treaty promise or obligation or a failure to fulfill same and it is

that which remains to be done. Here one does not have anything akin to improvident

management of Indian property or encroachment upon aboriginal rights. Rather, one has

a failure to carry out a promise and the appropriate remedy is enforcement of the promise.

[355]

Accordingly, in the circumstances I conclude that while there was a breach

of the Crown’s fiduciary obligation in respect to the Band Council Resolution, there is no

need for this Court to respond to it having declared the resolution invalid. In respect to

the lands at Candle Lake, I conclude that there was no breach of a fiduciary duty. Were I

to have concluded otherwise, I would have held that the appropriate remedy was for

Canada to set aside alternate lands as Indian Reserves.

K. ESTOPPEL

[356]

The Province of Saskatchewan submits that it no longer has an obligation to

provide land to enable the Dominion of Canada to meet any further Treaty land

entitlement of the Lac La Ronge Indian Band. This submission is grounded in the fact

that Canada made representations that the 63,385 acres set aside for that Band would

complete its land entitlement and on that understanding the land was provided by the

Province. I do not agree with the submission.

[357]

This submission has its genesis in the Natural Resources Transfer

Agreement which was the device whereby the Dominion of Canada transferred to the

Province of Saskatchewan its title to unoccupied Crown lands and resources within the

Province. The agreement came into effect on October 1, 1930, and has the force of law

by reason of s. 1 of the Constitution Act, 1930, 20-21 George V, c. 26 (U.K.). Thus it is

244

not simply a contract, but a constitutional document. Section 10 of the agreement

provides:

All lands included in Indian Reserves within the Province,

including those selected and surveyed but not yet confirmed,

as well as those confirmed, shall continue to be vested in the

Crown and administered by the Government of Canada for

the purposes of Canada, and the Province will from time to

time, upon the request of the Superintendent of General

Indian Affairs, set aside, out of the unoccupied Crown lands

hereby transferred to its administration, such further areas as

the Superintendent General may, in agreement with the

appropriate Minister of the Province, select as necessary to

enable Canada to fulfil its obligations under the Treaties with

the Indians of the Province, and such areas shall thereafter be

administered by Canada in the same way in all respects as if

they had never passed to the Province under the provisions

hereof.

[358]

There is no dispute about the facts. Both prior to and following the Band

Council Resolution of May 8, 1964, there were discussions between the Federal and

Provincial Governments about the latter providing land to fulfill the Treaty land

entitlement of the Lac La Ronge Indian Band. Throughout those discussions, and most

particularly after execution of the Band Council Resolution, assurances were given that

the land entitlement claim of that Band was fully and finally settled. In a letter dated

October 23, 1972, the Minister of Justice informed the Minister of Natural Resources that

a settlement had been achieved and that “. . . this completes the Band’s Treaty land

entitlement” (Ex. P-13, p. 3682). It was on that assurance that the Province transferred

the 63,385 acres to Canada.

245

[359]

The Province now says that the correspondence leading up to the transfer

constitutes a contract releasing it from any further obligations under s. 10 of the Natural

Resources Transfer Agreement in respect to the Lac La Ronge Indian Band.

Alternatively, it says that having given the stated assurance, Canada is now estopped from

going contrary to it by seeking more land.

[360]

In my opinion, there is one answer to both submissions. Section 10 of the

Natural Resources Transfer Agreement is a statutory mandate which has the added

dimension of being a constitutional provision. Neither can be set aside simply through

the actions of public servants, even at the Cabinet level, no matter how well intentioned

they may be. To hold otherwise would be tantamount to permitting amendment by

private agreement. As well, the representations by Canada cannot give rise to estoppel

such as to suspend or terminate the operation of valid legislation. See Sivakumar v.

Canada (Minister of Citizenship and Immigration) et al. (1996), 106 F.T.R. 136 at p. 139;

Husky Oil Ltd. v. Minister of National Revenue (Customs and Excise) (1991), 44 F.T.R.

18 at p. 23; and Johnson v. Ramsay Fishing Company Ltd. et al. (1988), 15 F.T.R. 106 at

p. 121. See also Liability of the Crown, by Peter W. Hogg, 2nd ed., (Toronto: Carswell,

1989), wherein the author speaks of the Crown being subject to estoppel. He then goes

on at p. 190 to say this:

No representation by a Crown servant can give a

government or its officials the power to do something which

the law does not allow. For example, when a payment is

made out of the consolidated revenue fund without

legislative appropriation, the recipient is not permitted to

raise an estoppel as a defence to an action by the Crown to

recover the illegal payment. Nor can an estoppel be raised

where the effect would to allow the government to dispense

with the requirements of a statute; the statute must be

246

complied with, notwithstanding any representation to the

contrary. . . .

[361]

Accordingly, unless lawfully amended, s. 10 remains in full force without

any limitations. The authority of Canada to request land is unchanged as is

Saskatchewan’s obligation to provide land. The Province remains bound by the section

and must abide its requirements.

[362]

Counsel for the plaintiffs submit that the rights of the Band cannot be

effected or abrogated through an arrangement between the two levels of government

absent the Band’s participation. There is no need for me to address this submission in

order to dispose of the issue and I therefore decline to do so.

L. QUANTIFICATION OF PLAINTIFFS’ CLAIMS

[363]

It was agreed amongst counsel, and approved by the Court, that this trial

proceed in two stages. Initially liability is to be determined and then at a later date the

trial will continue in order to determine whether the plaintiffs are entitled to any further

lands or monetary compensation for ammunition and twine. Accordingly, the second part

of the trial stands adjourned sine die. Any party may seek to have it commence by

making a request to the Registrar who shall fix a date in consultation with counsel. If

necessary, application may be made to the court for directions.

M. CONCLUSION

[364]

In the result, judgment will issue in favour of the plaintiffs stipulating the

following:

247

(1)

(2)

that in calculating Treaty land entitlement under Treaty No. 6, the

population figure to be employed is that at the time when the land is

set apart or what is commonly called the current population;

that in calculating entitlement for ammunition and twine under the

adhesion to Treaty No. 6, one uses a base amount of $1,500.00 and

adjusts that proportionate to the population of those entering into

the adhesion to those who entered into the Treaty itself;

(3)

(4)

(5)

(6)

(7)

that the Band Council Resolution of May 8, 1964, is declared

invalid and of no effect whatsoever;

that any land entitlement of the Lac La Ronge Indian Band has not

been extinguished by any Order-in-Council;

that no lands at Candle Lake, Saskatchewan, were set apart as an

Indian Reserve;

that no school lands within what is now the townsite of La Ronge,

Saskatchewan were set apart as an Indian Reserve;

that Canada did not breach a fiduciary duty owed to the plaintiffs in

respect to the lands at Candle Lake, Saskatchewan;

248

(8)

(9)

that Canada is not estopped from obtaining additional lands from

Saskatchewan for the purpose of fulfilling its Treaty obligation to

set apart Reserve Lands for the Lac La Ronge Indian Band;

that the matter of determining whether the Lac La Ronge Indian

Band is entitled to further Reserve Lands or monetary compensation

is adjourned sine die to be brought back on by any party;

(10) that the matter of costs is reserved and may be spoken to on a date

set by the Registrar in consultation with counsel.

J.

249

APPENDIX “A”

THE TREATIES AT FORTS CARLTON AND PITT,

NUMBER SIX.

ARTICLES OF A TREATY made and concluded near Carlton, on the twenty-third day

of August, and on the twenty-eighth day of said month, respectively, and

near Fort Pitt on the ninth day of September, in the year of Our Lord one thousand

eight hundred and seventy-six, between Her Most Gracious Majesty the Queen of

Great Britain and Ireland, by her Commissioners, the Honorable Alexander

Morris, Lieutenant-Governor of the Province of Manitoba and the North-West

Territories, and the Honorable James McKay and the Honorable William Joseph

Christie, of the one part, and the Plain and the Wood Cree Tribes of Indians, and

the other Tribes of Indians, inhabitants of the country within the limits hereinafter

defined and described, by their Chiefs, chosen and named as hereinafter

mentioned, of the other part.

Whereas the Indians inhabiting the said country have, pursuant to an appointment

made by the said Commissioners, been convened at meetings at Fort Carlton, Fort Pitt

and Battle River, to deliberate upon certain matters of interest to Her Most Gracious

Majesty, of the one part, and the said Indians of the other ;

And whereas the said Indians have been notified and informed by Her Majesty’s

said Commissioners that it is the desire of Her Majesty to open up for settlement,

immigration and such other purposes as to Her Majesty may seem meet, a tract of

country, bounded and described as hereinafter mentioned, and to obtain the consent

thereto of her Indian subjects inhabiting the said tract, and to make a treaty and arrange

250

with them, so that there may be peace and good will between them and Her Majesty, and

that they may know and be assured of what allowance they are to count upon and receive

from Her Majesty’s bounty and benevolence ;

And whereas the Indians of the said tract, duly convened in council as aforesaid,

and being requested by Her Majesty’s Commissioners to name certain Chiefs and head

men, who should be authorized, on their behalf, to conduct such negotiations and sign any

treaty to be founded thereon, and to become responsible to Her Majesty for the faithful

performance by their respective bands of such obligations as shall be assumed by them,

the said Indians have thereupon named for that purpose, that is to say:— representing the

Indians who make the treaty at Carlton, the several Chiefs and Councillors who have

subscribed hereto, and representing the Indians who make the treaty at Fort Pitt, the

several Chiefs and Councillors who have subscribed hereto ;

And thereupon, in open council, the different bands having presented their Chiefs

to the said Commissioners as the Chiefs and head men, for the purposes aforesaid, of the

respective bands of Indians inhabiting the district hereinafter described ;

And whereas the said Commissioners then and there received and acknowledged

the persons so represented, as Chiefs and head men, for the purposes aforesaid, of the

respective bands of Indians inhabiting the said district hereinafter described ;

And whereas the said Commissioners have proceeded to negotiate a treaty with the

said Indians, and the same has been finally agreed upon and concluded as follows, that is

to say :

251

The Plain and Wood Cree Tribes of Indians, and all other the Indians inhabiting

the district hereinafter described and defined, do hereby cede, release, surrender and yield

up to the Government of the Dominion of Canada for Her Majesty the Queen and her

successors forever, all their rights, titles and privileges whatsoever, to the lands included

within the following limits, that is to say :

Commencing at the mouth of the river emptying into the north-west angle of

Cumberland Lake, thence westerly up the said river to the source, thence on a straight line

in a westerly direction to the head of Green Lake, thence northerly to the elbow in the

Beaver River, thence down the said river northerly to a point twenty miles from the said

elbow ; thence in a westerly direction, keeping on a line generally parallel with the said

Beaver River (above the elbow), and about twenty miles distance therefrom, to the source

of the said river ; thence northerly to the north-easterly point of the south shore of Red

Deer Lake, continuing westerly along the said shore to the western limit thereof, and

thence due west to the Athabaska River, thence up the said river, against the stream, to

the Jasper House, in the Rocky Mountains ; thence on a course south-eastwardly,

following the easterly range of the Mountains, to the source of the main branch of the Red

Deer River ; thence down the said river, with the stream, to the junction therewith of the

outlet of the river, being the outlet of the Buffalo Lake ; thence due east twenty miles ;

thence on a straight line south-eastwardly to the mouth of the said Red Deer River on the

South Branch of the Saskatchewan River ; thence eastwardly and northwardly, following

on the boundaries of the tracts conceded by the several Treaties numbered Four and Five,

to the place of beginning ;

And also all their rights, titles and privileges whatsoever, to all other lands,

wherever situated, in the North-West Territories, or in any other Province or portion of

Her Majesty’s Dominions, situated and being within the Dominion of Canada ;

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The tract comprised within the lines above described, embracing an area of one

hundred and twenty-one thousand square miles, be the same more or less ;

To have and to hold the same to Her Majesty the Queen and her successors

forever ;

And Her Majesty the Queen hereby agrees and undertakes to lay aside reserves for

farming lands, due respect being had to lands at present cultivated by the said Indians,

and other reserves for the benefit of the said Indians, to be administered and dealt with for

them by Her Majesty’s Government of the Dominion of Canada, provided 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, in manner following, that is to say :—

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 ;

Provided, however, that Her Majesty reserves the right to deal with any settlers

within the bounds of any lands reserved for any band as she shall deem fit, and also that

the aforesaid reserves of land or any interest therein may be sold or otherwise disposed of

by Her Majesty’s Government for the use and benefit of the said Indians entitled thereto,

with their consent first had and obtained ; and with a view to show the satisfaction of Her

Majesty with the behavior and good conduct of her Indians, she hereby, through her

Commissioners, makes them a present of twelve dollars for each man, woman and child

belonging to the bands here represented, in extinguishment of all claims heretofore

preferred ;

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And further, Her Majesty agrees to maintain schools for instruction in such

reserves hereby made, as to her Government of the Dominion of Canada may seem

advisable, whenever the Indians of the reserve shall desire it ;

Her Majesty further agrees with her said Indians that within the boundary of

Indian reserves, until otherwise determined by her Government of the Dominion of

Canada, no intoxicating liquor shall be allowed to be introduced or sold, and all laws now

in force or hereafter to be enacted to preserve her Indian subjects inhabiting the reserves

or living elsewhere within her North-West Territories from the evil influence of the use of

intoxicating liquors, shall be strictly enforced ;

Her Majesty further agrees with her said Indians that they, the said Indians, shall

have right to pursue their avocations of hunting and fishing throughout the tract

surrendered as hereinbefore described, subject to such regulations as may from time to

time be made by her Government of her Dominion of Canada, and saving and excepting

such tracts as may from time to time be required or taken up for settlement, mining,

lumbering or other purposes by her said Government of the Dominion of Canada, or by

any of the subjects thereof, duly authorized therefor, by the said Government ;

It is further agreed between Her Majesty and her said Indians, that such sections of

the reserves above indicated as may at any time be required for public works or buildings

of what nature soever, may be appropriated for that purpose by Her Majesty’s

Government of the Dominion of Canada, due compensation being made for the value of

any improvements thereon ;

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And further, that Her Majesty’s Commissioners shall, as soon as possible after the

execution of this treaty, cause to be taken, an accurate census of all the Indians inhabiting

the tract above described, distributing them in families, and shall in every year ensuing

the date hereof, at some period in each year, to be duly notified to the Indians, and at a

place or places to be appointed for that purpose, within the territories ceded, pay to each

Indian person the sum of five dollars per head yearly ;

It is further agreed between Her Majesty and the said Indians that the sum of

fifteen hundred dollars per annum, shall be yearly and every year expended by Her

Majesty in the purchase of ammunition and twine for nets for the use of the said Indians,

in manner following, that is to say :— In the reasonable discretion as regards the

distribution thereof, among the Indians inhabiting the several reserves, or otherwise

included herein, of Her Majesty’s Indian Agent having the supervision of this treaty ;

It is further agreed between Her Majesty and the said Indians that the following

articles shall be supplied to any band of the said Indians who are now cultivating the soil,

or who shall hereafter commence to cultivate the land, that is to say :— Four hoes for

every family actually cultivating, also two spades per family as aforesaid ; one plough for

every three families as aforesaid, one harrow for every three families as aforesaid ; two

scythes, and one whetstone and two hayforks and two reaping-hooks for every family as

aforesaid ; and also two axes, and also one cross-cut saw, and also one hand-saw, one pit-

saw, the necessary files, one grindstone and one auger for each band ; and also for each

Chief, for the use of his band, one chest of ordinary carpenter’s tools ; also for each band,

enough of wheat, barley, potatoes and oats to plant the land actually broken up for

cultivation by such band ; also for each band, four oxen, one bull and six cows, also one

boar and two sows, and one handmill when any band shall raise sufficient grain

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therefor ; all the aforesaid articles to be given once for all for the encouragement of the

practice of agriculture among the Indians ;

It is further agreed between Her Majesty and the said Indians, that each Chief, duly

recognized as such, shall receive an annual salary of twenty-five dollars per annum ; and

each subordinate officer, not exceeding four for each band, shall receive fifteen dollars

per annum ; and each such Chief and subordinate officer as aforesaid, shall also receive,

once every three years, a suitable suit of clothing, and each Chief shall receive, in

recognition of the closing of the treaty, a suitable flag and medal, and also, as soon as

convenient, one horse, harness and waggon ;

That in the event hereafter of the Indians comprised within this treaty being

overtaken by any pestilence, or by a general famine, the Queen, on being satisfied and

certified thereof by her Indian Agent or Agents, will grant to the Indians assistance of

such character and to such extent as her Chief Superintendent of Indian Affairs shall

deem necessary and sufficient to relieve the Indians from the calamity that shall have

befallen them ;

That during the next three years, after two or more of the reserves hereby agreed to

be set apart to the Indians, shall have been agreed upon and surveyed, there shall be

granted to the Indians included under the Chiefs adhering to the treaty at Carlton, each

spring, the sum of one thousand dollars to be expended for them by Her Majesty’s Indian

Agents, in the purchase of provisions for the use of such of the band as are actually

settled on the reserves and are engaged in cultivating the soil, to assist them in such

cultivation ;

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That a medicine chest shall be kept at the house of each Indian Agent for the use

and benefit of the Indians, at the discretion of such Agent ;

That with regard to the Indians included under the Chiefs adhering to the treaty at

Fort Pitt, and to those under Chiefs within the treaty limits who may hereafter give their

adhesion hereto (exclusively, however, of the Indians of the Carlton Region) there shall,

during three years, after two or more reserves shall have been agreed upon and surveyed,

be distributed each spring among the bands cultivating the soil on such reserves, by Her

Majesty’s Chief Indian Agent for this treaty in his discretion, a sum not exceeding one

thousand dollars, in the purchase of provisions for the use of such members of the band as

are actually settled on the reserves and engaged in the cultivation of the soil, to assist and

encourage them in such cultivation ;

That, in lieu of waggons, if they desire it, and declare their option to that effect,

there shall be given to each of the Chiefs adhering hereto, at Fort Pitt or elsewhere

hereafter (exclusively of those in the Carlton District) in recognition of this treaty, so

soon as the same can be conveniently transported, two carts, with iron bushings and

tires ;

And the undersigned Chiefs, on their behalf, and on behalf of all other Indians

inhabiting the tract within ceded, do hereby solemnly promise and engage to strictly

observe this treaty, and also to conduct and behave themselves as good and loyal subjects

of Her Majesty the Queen ;

They promise and engage that they will in all respects obey and abide by the law,

and they will maintain peace and good order between each other, and also between

themselves and other tribes of Indians, and between themselves and others of Her

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Majesty’s subjects, whether Indians or whites, now inhabiting or hereafter to inhabit any

part of the said ceded tracts, and that they will not molest the person or property of any

inhabitant of such ceded tracts, or the property of Her Majesty the Queen, or interfere

with or trouble any person passing or travelling through the said tracts or any part

thereof ; and that they will aid and assist the officers of Her Majesty in bringing to justice

and punishment any Indian offending against the stipulations of this treaty, or infringing

the laws in force in the country so ceded.

In witness whereof, Her Majesty’s said Commissioners and the said Indian Chiefs

have hereunto subscribed and set their hands, at or near Fort Carlton, on the day and year

aforesaid, and near Fort Pitt on the day above aforesaid.

. . .

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APPENDIX “B”

No. 265.

We the undersigned Chiefs and Headmen, on behalf of ourselves and the other

members of the Wood Cree Tribe of Indians, having had explained to us the terms of the

treaty made and concluded near Carlton, on the 23rd day of August and on 28th day of

said month respectively, and near Fort Pitt on the 9th day of September, 1876, between

Her Majesty the Queen, by the Commissioners duly appointed to negotiate the said treaty,

and the Plain and Wood Cree and other Tribes of Indians inhabiting the country within

the limits defined in said treaty, but not having been present at the councils at which the

articles of the said treaty were agreed upon, do now hereby for ourselves and the Bands

which we represent, in consideration of the provisions of the said treaty being extended to

us and the Bands which we represent, transfer, surrender, and relinquish to Her Majesty

the Queen, Her heirs and successors, to and for the use of the Government of the

Dominion of Canada, all our right, title and interest whatsoever which we and the said

Bands which we represent hold and enjoy, or have held and enjoyed, of, in and to the

territory included within the following limits : All and singular that portion or tract of

land being the north part of the Land District of Prince Albert, as shown on the maps

published by the Honourable the Minister of the Interior, dated at Ottawa on the 31st day

of August, 1885 ; the same tract being north of the northerly limit of Treaty No. 6, North-

West Territory, containing 11,066 square miles, be the same more or less, and more

particularly described as follows : Commencing at a point being the north-west corner of

projected Township No. 70, Range 10, west of the Third Initial Meridian ; thence easterly

along the northern boundaries of projected Townships Nos. 70 to the north-east corner of

projected Township No. 70, Range 13, west of the Second Initial Meridian ; thence

southerly following the east boundary of said 13th Range of projected Townships to the

northern limits of Treaty No. 6 into the projected Township No. 60 ; thence westerly

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following the northerly limit of Treaty No. 6 to the south-eastern shore of Green Lake,

being at the north-easterly part of projected Township No. 58, Range 10, west of the

Third Initial Meridian ; thence following the westerly shore of Green Lake to the main

inlet thereof known as Beaver River ; thence up the right bank of Beaver River to its

intersection with the west boundary of projected Township No. 62, Range 10, west of the

Third Initial Meridian ; thence northerly following the west boundary of projected

townships of Range 10, west of the Third Initial Meridian, to the point of commencement.

Also, all our right, title and interest whatsoever to all other lands wherever

situated, whether within the limits of any other treaty heretofore made, or hereafter to be

made with Indians, and whether the said lands are situated in the North-West Territories

or elsewhere in Her Majesty’s Dominions, to have and to hold the same unto and for the

use of Her Majesty the Queen. Her heirs and successors forever.

And we hereby agree to accept the several benefits, payments and reserves

promised to the Indians adhering to the said treaty at Fort Pitt or Carlton ; with the

proviso as regards the amount to be expended annually for ammunition and twine, and as

respects the amount to be expended for three years annually in provisions for the use of

such Indians as are settled on reserves and are engaged in cultivating the soil, to assist

them in such cultivation, that the expenditure on both of these items shall bear the same

proportion to the number of Indians now treated with as the amounts for those two items

as mentioned in Treaty No. 6 bore to the number of Indians then treated with. And we

solemnly engage to abide by, carry out and fulfil all the stipulations, obligations and

conditions therein contained on the part of the Chiefs and Indians therein named to be

observed and performed, and we agree in all things to conform to the articles of the said

treaty, as if we ourselves and the Bands which we represent had been originally

contracting parties thereto and had been present at the council held near Fort Pitt or near

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Carlton and had there attached our signatures to the said treaty.

IN WITNESS WHEREOF, Her Majesty’s special Commissioners and the Chiefs

and Councillors of the Bands hereby giving their adhesion to the said treaty have

hereunto subscribed and set their hands at Montreal Lake this eleventh day of February,

in the year of Our Lord one thousand eight hundred and eighty-nine.

. . .