NATIVE PEOPLES |
Beattie v. Canada
A-89-01, A-88-91
2002 FCA 105, Strayer J.A.
14/3/02
10 pp.
Appellant descendant of Indian inhabitants of Northwest Territories who adhered to Treaty number 11 on July 21, 1921--Treaty defining land to which applied, being almost entirely in Northwest Territories--Crown agreeing to provide such assistance as deemed necessary for purpose of following agricultural pursuits--Appellant requesting "agricultural assistance" to establish farm to grow ginseng in southern part of British Columbia--When Minister of Indian Affairs and Northern Development refusing, appellant commenced action for loss of treaty benefits, loss of future economic opportunity--Minister also subsequent-ly refusing to accept full liability for appellant's legal expenses--Appellant commenced second action for declaration defendant liable to fully reimburse her for all legal costs in both actions--Instead of full trial, parties agreeing summary judgment appropriate--Pelletier J. dismissed both actions based on affidavit, documentary evidence--Gave particular attention to guiding principles laid down in R. v. Marshall, [1999] 3 S.C.R. 456--Unable to interpret Treaty reference to agricultural assistance as representing intention of both parties that such assistance would be provided outside of Treaty 11 area so as to provide means to leave Treaty 11 area--Rejected argument that because Treaty of "adhesion", ambiguities should be construed against author in accordance with contra proferentem rule, having regard to principle that contractual interpretation of treaty wording should be avoided-- Appellant also argued refusal of agricultural assistance outside of Treaty 11 area form of discrimination contrary to Charter s. 15--Trial Judge distinguishing Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203 wherein held "aboriginal residence" analogous ground of discrimination prohibited by s. 15, on ground agricultural assistance refused not because of where appellant lived, but because seeking assistance for farm located outside Treaty 11 tract--Also held "agricultural assistance" neither embracing "legal assistance" nor was legal assistance incidental right--Appeal dismissed--Trial Judge applied correct legal principles--Not improperly referring to "attachment" of Indian signatories to land covered by Treaty 11--Usual basis upon which treaty negotiated with given group of Indians would be attachment to area--Trial Judge fully justified in concluding from framework, context of Treaty, that intended to deal with rights which signatory Indians might claim to specific area --Part of policy to be applied to specific geographical area to promote settlement, mining, commercial development-- In that particular area rights of hunting, fishing guaranteed --Treaty concluded by guarantee of peace, justice for particular geographical area--Treaty recited surrender by Indians of Treaty 11 tract but also "said Indian rights, titles and privileges whatsoever to all other lands wherever situated . . . in any other portion of the Dominion of Canada"--Arguably if land outside tract surrendered, then Treaty rights interpreted to apply to such lands as well--But no suggestion ginseng farm situated on such land to which had some ancestral claim--Reference to "all other lands" in Treaty so vague as to be meaningless--No errors in Trial Judge's finding of facts--Also correctly holding no incidental right to legal funding by Crown wherever claim asserted based on treaty.