Digests

Benoit v. Canada

T-2288-92

2002 FCT 243, Campbell J.

7/3/02

110 pp.

R. v. Marshall, [1999] 3 S.C.R. 456 setting out principles for interpretation of treaties--As to general approach to be followed in interpreting particular treaty, words of treaty clause should first be examined to determine facial meaning, noting any patent ambiguities, misunderstandings arising from linguistic, cultural differences; meaning or different meanings arising from wording of treaty right must be considered against treaty's historical, cultural backdrop--Principles applicable herein: (1) oral promises can be treaty terms; (2) must find common intention of parties; (3) treaty interpretation must be based on cogent evidence; (4) in treaty interpretation, Honour of Crown must be maintained-- Plaintiffs claim Treaty Commissioners promised Treaty No. 8 not opening way to imposition of any tax; said promise term of Treaty No. 8; promise treaty right protected by Constitution Act, 1982, s. 35(1)--In 1898, Privy Council appointed commissioners to treaty with Indians north of Treaty No. 6 for extinguishment of their title to land (Treaty 8 area)--On June 20, 1899 Commissioners met with Cree of Lesser Slave Lake, conveyed terms of treaty offered by Government--Treaty No. 8 drafted, put in written form, signed by Commissioners, representatives of Cree following day--Commissioners then travelling to various other locations where Treaty adhered to by different Indian groups through authorized representatives--Treaty 8 ratified by Privy Council in 1900-- Further adhesions taken to Treaty 8 in 1900, ratified in 1901-- Documentary evidence consisting of Treaty Report, historical records, contemporaneous accounts of witnesses--Report of Commissioners for Treaty No. 8 stating "Indians assured no tax would be imposed"--Treaty negotiations conducted under very imperfect physical circumstances--Underscoring need to be cautious about concluding with too much certainty that Aboriginal People perfectly understood everything Commissioners said--Physical circumstances, complexity of legal issues placed greatest responsibility on shoulders of Commissioners to ensure no misunderstanding about what was being offered by them to Aboriginal People being addressed--From Treaty Report, reasonable to infer concern among Aboriginal People in Treaty 8 region about payment of "tax", whatever that term interpreted to mean--Plaintiffs, Canada, Alberta tendered expert opinion to assist in interpretation of record--Among experts, general agreement about Crown's goals, intentions (open area to settlement, peaceful extension of Crown's authority into Treaty 8 area, prevent conflicts between Aboriginal People, non-Aboriginal settlers), but significant divergences of opinion with respect to goals, intentions of Aboriginal people (autonomy versus cultural and economic survival)--During negotiations, difficulties would have occurred because of language translation eg. no Cree word for "tax"--Commissioners' words might not have been completely understood by Aboriginal People being addressed--Analysis of what Aboriginal People would have known about tax at time of treaty negotiations--Plaintiffs submitting Commissioners' response constituting oral promise of tax exemption, incorporated into Treaty as enforceable term--Canada, Alberta alleging no proof of common intention re: tax exemption in understanding between Aboriginal People, Commissioners--Objective to determine whether Commissio-ner's words constituting treaty promise, while adopting sensitive, contextually practical approach--With respect to analysing meaning of words spoken so as to conclude whether they constitute Treaty term, highly technical, grammatical approach involving putting weight on any difference in meaning between phrases "we promised", "we assured them", "we had to solemnly assure them" should be avoided unless evidence such difference actually understood by Aboriginal Peoples concerned--No evidence from witnesses to treaty negotiations, other than those of Commissioners expressed through Treaty Report, on which to find precise concern of Aboriginal People respecting tax--In order to maintain Honour of Crown, must assume Commissioners had no intention to mislead, and words used honestly meant, intended to be relied upon--On basis of law, expert opinion, Mair's contemporaneous account, all statements of commitment made by Commissioners intended to be accepted by Aboriginal People as promises--Tax assurance Treaty promise, and as such Treaty term--In interpreting terms of treaty, Court's obligation to choose from among various possible interpretations of common intention one best reconciling Aboriginal interests, those of Crown--Thus meaning of term must be derived from proven common intentions established between parties to Treaty--As expert and legal opinion tendered not proving meaning of tax assurance made, no proof of common understanding or intention between Commissioners, Aboriginal People with respect to meaning of tax Treaty term--Plaintiffs led evidence of Aboriginal oral tradition to prove Aboriginal People understood from what Commissioners said that tax exemption promise made--Relied on evidence of three Aboriginal witnesses, transcripts of evidence of elders taken 30 years ago--Only issue of fact proof of belief tax exemption promise made--Criteria for admission of oral evidence set out in Mitchell v. M.N.R., [2001] 1 S.C.R. 911--Other issue weight to be assigned such evidence--Instead of challenging by cross-examination, Canada, Alberta relied on other evidence in trial, including expert evidence, to attempt to contradict accuracy of, and otherwise to reduce weight given to, substance of evidence of oral tradition--In trial, witness not to be judged by sceptic, but by person willing to believe witness telling truth, and to maintain this belief until some important definable reason found for not doing so--If Aboriginal person considered qualified to give evidence of oral tradition, that person entitled to have weight accorded to his evidence--Elder's expertise to pass on oral tradition affirmed by presence of certain markers eg. assertions possesses story, confirms contents received public affirmation, shows self-knowledge of limitations of expertise, reflects truthfulness and confidence, credits sources, story rich in detail--When markers present, statements seriously considered as evidence of oral tradition--Concerns about oral evidence must be made specific to individuals giving evidence --Canada, Alberta not showing that, in some way, witness to oral tradition failed to recount it accurately--In context of having respected elder give account of oral tradition which knows, not leading to direct elder's attention to certain topic --No reason not to accept elder's evidence at face value-- Evidence establishing on balance of probabilities Cree, Dene people believed Commissioners promised tax exemption-- Interpretations of treaties, statutory provisions having impact upon treaty, Aboriginal rights must be approached in manner maintaining integrity of Crown--Also treaties should be liberally construed, ambiguities or doubtful expressions resolved in favour of Aboriginal signatories--Maintaining Honour of Crown in interpreting Treaty term at heart of present case, and determining factor in outcome--Court must choose from among various possible interpretations of common intention one best reconciling Aboriginal interests, those of Crown: R. v. Sioui, [1990] 1 S.C.R. 1025--According to law, in own interests, those of Aboriginal People, Canada required to recognize, fulfill tax assurance as understood by Aboriginal People in 1899--Treaty term must be interpreted to provide to Aboriginal People entitled to benefits of Treaty 8, treaty right not to have any tax imposed upon them at any time for any reason--Only issue herein with respect to federal income tax--Canada arguing Treaty right implicitly extinguished by passage of income tax legislation in 1915-- But, as by definition treaty solemn agreement between Crown, Indians cannot be extinguished without consent of Indians concerned: Sioui--Since no consent given, Treaty right not extinguished--Canada arguing valid legislative objective in passage of taxing legislation to refrain from affording protection from taxation to property held by beneficiaries of Treaty 8 in commercial mainstream--Justification argument not paying sufficient respect to law, commitments made to Treaty 8 People--Minimizing significance of Constitutional protection afforded to treaty right--Crown must justify infringement of treaty right--In this case, Crown required to show: valid legislative objective, Honour of Crown maintained in infringement action taken, right concerned infringed as little as possible, some degree of consultation taking place--None of these requirements met--Promise given by Treaty Commissioner that treaty rights last forever not fulfilled by quietly passing general tax legislation-- Promise Aboriginal People would control any change to terms of Treaty, at very least requiring focussed, completely open consultation with those Aboriginal People affected to reach consensus on change if Canada considering change needed-- No such consultation herein--Application of federal taxation provisions to Indian beneficiaries of Treaty 8 inconsistent with Constitution Act, 1982, s. 35 and therefore, to extent of inconsistency, of no force, effect--Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 35.