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Beardy’s and Okemasis Bands #96 & #97 v. Her Majesty the Queen In Right of Canada (SCT-5001-11) THE TREATY ANNUITIES CLAIM.

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Presentation on theme: "Beardy’s and Okemasis Bands #96 & #97 v. Her Majesty the Queen In Right of Canada (SCT-5001-11) THE TREATY ANNUITIES CLAIM."— Presentation transcript:

1 Beardy’s and Okemasis Bands #96 & #97 v. Her Majesty the Queen In Right of Canada (SCT-5001-11) THE TREATY ANNUITIES CLAIM

2 PRESENTATION OVERVIEW 1) Overview of the factual basis of the claim and significance to other Specific Claims 2) Uncertainty, Delay and Rejection: The Old Specific Claims Process 3) Failure of Alternative Dispute Resolution Process with Office of Treaty Commissioner 4) Specific Claims Tribunal Process 5) Reflections, Commentary and Ongoing Issues

3 Factual Basis of the Claim Treaty 6 (1876) entered into with the various bands and tribes occupying central Saskatchewan and Alberta – First Nations agreed to share 121,000 square miles of prime agricultural land in exchange for certain promises, such as reserve land, hunting and fishing rights, a “present” of $12 to each Indian, payment of $5 to each Indian annually, ammunition and twine, and assistance during times of starvation and pestilence the rapid disappearance of buffalo caused severe hardship for many prairie First Nations – starvation and high mortality rates were common but the government provided inadequate assistance and was intent on cutting costs in 1883 – Dr. Bill Waiser, author of Loyal Till Death, was the Claimant’s expert on the history: “… the government remained convinced that it had done more than enough for the Indians; any extra help beyond that specified in the treaties would promote laziness, if not dependency. In short, the Indians had to take the initiative and bring their reserve lands under crop--or face the consequences. This line of reasoning provoked a somewhat heated response from Agent Dickieson. He warned a senior Ottawa bureaucrat, “it does not do to scan the exact lines of a treaty too closely.” Laird was blunter. He told the minister of the Interior that the government had three choices: “to help the Indians to farm and raise stock, to feed them, or to fight them.” Prominent Cree leaders like Big Bear pressed for better terms of the treaties through peaceful means – 1884 Duck Lake council took place among several First Nations and they set out a list of grievances that were largely ignored by the Crown – instead the Crown responded by deposing Chiefs and stepping up police presence and sought to punish leaders involved in the treaty rights movement

4 Factual Basis of the Claim On March 19, 1885, Louis Riel proclaimed a provisional Métis government in Batoche SK (just across the river from Beardy’s reserve at Duck Lake) – Riel tried in vain to enlist the support of Big Bear and other chiefs but was rebuffed at every turn March 26 – Duck Lake skirmish occurred spontaneously between the NWMP and Métis with the shooting of an unarmed member of the Beardy’s band – several Métis and NWMP were killed Prof. Waiser evidence is that “any First Nations involvement in the rebellion was isolated, sporadic, and not part of a grand Indian-Métis alliance.” While some Indians were involved in the events of the Riel Rebellion and there was loss of life, most of the Cree leaders counselled their members not to take up arms and to remain “loyal”. Evidence is that members some local bands like Beardy’s & Okemasis, One Arrow, and Muskeg Lake were forced under threats from Métis to remain with Métis. In the aftermath of the Rebellion, Prime Minister Macdonald implemented a 15 point memorandum for the Future Management of the Indians The Macdonald administration’s plan to subdue the Plains Cree, and in the process crush the treaty rights movement, was first given expression in early July 1885....Their intent was brutally clear--abject subordination. All guns, ammunition, horses, cattle, carts, wagons, harnesses, and even treaty medals were to be taken from the Cree. Shotguns, once branded on the stock, would be returned to the owners on the understanding that the guns were now the Queen’s property and could be confiscated at any time; those Indians, meanwhile, who were found with a rifle or handgun in the future, were “liable to be shot on sight.” All males, including chiefs and councillors, were also required to register, and their future movements made fully known. Finally, no rations were to be distributed, except to those willing to work for them. “[H]aving revolted,” Reed coolly reasoned, “no doubt they have seen their way clear to earning a livelihood without aid from the Queen.

5 Factual Basis of the Claim More than 20 bands were characterized as “disloyal” without any evidence or due process whatsoever – the Crown implemented a number of punitive measures to punish “disloyal bands” including the confiscation of guns, horses, withholding of treaty money, the deposal of Chiefs, the breaking up and amalgamation of bands, and the imposition of a pass system on all bands in northwest Prime Minister Macdonald implemented this “policy” without any legislative authority or even the sanction of the House of Commons – Poundmakerand Big Bear were imprisoned and 8 Indians were hung in North Battleford in the largest mass hanging in Canadian history - Macdonald said “The executions...ought to convince the Red Man that the White Man governs.” Prime Minister Macdonald referred to the uprising as a form of domestic trouble that did not deserve to be elevated to the rank of rebellion. Governor General Lansdowne bristled at the comment, “We cannot now reduce it to the rank of a common riot. If the movement had been at once stamped out by the NWM Police the case would have been different, but we were within a breath of an Indian war.” A somewhat unrepentant Sir John replied in his defence, “We have certainly made it assume large proportions in the public eye. This has been done however for our own purposes, and I think wisely done.”

6 Factual Basis of the Claim Claim for the Crown’s unlawful termination of treaty annuity payments to the members of the Beardy’s and Okemasis Bands in the wake of the 1885 Northwest Rebellion (the “Rebellion”) Annuity payments, and other coercive measures implemented against the members of Treaty 4 & Treaty 6 First Nations unilaterally labeled as “disloyal” by the Crown for alleged participation in the Rebellion Termination of annuity payments forms only part of the coercive measures implemented by the Crown against so-called “disloyal” Bands in the wake of the Rebellion 12 other analogous claims by Treaty 4 & Treaty 6 First Nations with essentially identical fact patterns. Central jurisdictional issue in the claim could have wider impact on other claims related to treaty annuities

7 Central Issue: Nature of the Treaty Right to Annuities Crown’s Position: Right to treaty annuities is essentially personal in nature Losses from termination of annuity payments exclusively individual As such, not a specific claim, not within the jurisdiction of the Tribunal Our Position: Treaty rights are presumptively collective in nature All treaty rights have individual “aspects” – but they remain collective rights Punishment was meted out to and intended to injure the collectives A “band” is a body of Indians for whom reserve lands are held by the Crown or who are entitled to the distribution of annuities This is a specific claim which falls squarely in the jurisdiction of the Tribunal

8 Uncertainty, Delay and Rejection: The Old Specific Claims Process Beardy’s & Okemasis First Nation filed with the Specific Claims Branch (SCB) in December 2001 Three analogous claims filed with the SCB in 2002-2003 SCB rejected the three Claims for negotiation in summer 2008 (7 Years later) SCB confirmed the rejection in December at the request of the Beardy’s & Okemasis First Nation for the purposes of the claim being eligible for filing with the Tribunal

9 “… this claim could not be processed because annuity payments and medals under treaty do not fall within the scope of the Specific Claims Policy. First Nations cannot recover alleged losses relating to payments or other items owed to individuals under the Specific Claims Policy, since any damages would be owed to these individual members as opposed to the First Nation as a whole. Although the claim was returned to the First Nation, the First Nation was also encouraged to contact the Federation of Saskatchewan Indian Nations to explore the possibility of having these important treaty issues addressed in the context of discussions currently being facilitated by the Office of the Treaty Commissioner.”

10 Failure of Alternative Dispute Resolution Process with Office of Treaty Commissioner Minister Strahl appointed Jeremiah Bartram as independent fact finder Purpose was to seek possible resolution of the claim, and reconciliation of the treaty relationship outside of the Specific Claims Process Participation from the wider group of Treaty 4 & 6 claimant First Nations Office of the Treaty Commissioner as neutral fact finder Conducted interviews with elders of the collective annuities First Nations Report of the neutral fact finder released in March 2011.

11 Key Conclusions of the Neutral Fact Finder Report “Parties do not appear to differ significantly on the historical facts” “Not only are parties in general agreement respecting the facts. From the INAC perspective, the participation or non-participation of First Nations in the Rebellion does not appear to be a significant issue in this claim.” “Core” issues set out in the summary: 1) Collective or individual right?  “core” issue for both parties 2) Did the Crown have the authority to terminate annuities?  “core” issue for both parties 3) Did the Crown “break the treaty”  “core” issue for claimants, “irrelevant” for Crown 4) Compensation model  “core” issue for claimants, “minor” for crown (argued nominal value) Concluding analysis: “It is outside the scope of my inquiry to present recommendations”

12 The Specific Claims Tribunal Process Declaration of Claim and Response July 11, 2011 – Claim filed with Tribunal July 26, 2011 – Crown seeks an Order to extend timeline or dispense with Response July 28, 2011 – Parties appear before Tribunal in Ottawa, Crown motion denied August 19, 2011 – Crown files Response

13 The Specific Claims Tribunal Process Themes of the Tribunal Process Emerging from the Treaty Annuities Claim 1)Claimants cannot rely on their original specific claims submission – different standards apply 2)Constantly expanding area of dispute (departure from scope of Claims Submission) 3)Although judicial efficiency and reconciliation lie at the core of the Tribunal process, this is very much an adversarial process 4)Tribunal strongly encourages parties to develop hearing process and evidentiary record by agreement 5)Although the SCTA states that flexible rules of evidence apply to Tribunal proceedings, the Crown resists reliance on secondary sources and applications disputing admissibility of evidence and expert reports are common 6)Crown reluctant to submit evidence, except through experts

14 Crown’s Response Jurisdictional Arguments: Annuities do not fall under s.14(1) of the Specific Claims Tribunal Act SCTA S.14 States: … a First Nation may file with the Tribunal a claim based on any of the following grounds, for compensation for its losses arising from… Did not comply with the transitional provisions of s.43 of the Act. Substantive Arguments: Crown had the legal authority to terminate annuity payments. Facts did not appear to be in dispute.

15 Crown Application to Strike Claim May 15, 2012: Crown files Application to Strike Claim (ie. claim “on its face” falls outside scope of the SCTA) “Subsection 14(1) of the Specific Claims Tribunal Act, limits Tribunal claims to claims based on the collective losses of a First Nation or a band that by definition consists of a ‘body of Indians’ that hold assets ‘in common’ Treaty annuities are individual entitlements, and consequently the Specific Claims Tribunal has no jurisdiction to adjudicate a claim for failure to pay treaty annuities.” Application was adjourned sine die The Tribunal’s reasons state at paragraph 3 that “The essential facts are not in dispute” … yet.

16 Issues Regarding Documentary Evidence Following the adjournment of the Application to Strike, the parties were directed by the Tribunal at case management to exchange documents with a view of the creation of a Common Book of Documents. Documents provided in the original SCB Submission rejected by the Crown: Primary vs. Secondary sources Issue resolved by agreement to move matter forward, but will be relevant to future claims Common Book of Documents ultimately never resolved between the parties, which was somewhat problematic

17 Expert Reports Thorough expert reports are essential as Claimants will be put to strict proof of the historical basis of their claim At case management, the parties agreed that the Claimant would file three expert reports, and the Crown would file two Duel function of expert reports in this claim from Claimant perspective The Crown’s “strategic” change In this claim (and others) Crown used reply expert reports as sole means of introducing documentary evidence

18 Crown Application Re Report on Legislative History and Scope of SCTA … Shortly after service, Crown brought Application to prevent admission of Report Parties presented written briefs and oral argument before Tribunal at Beardy’s Reserve. Result -- Crown Application succeeded in part; Report redacted by Tribunal to remove legal argument.

19 … Crown Application Re Annuities Report Day before parties argued the Crown’s first admissibility application before the Tribunal, Claimant advised that there would be a second application to dispute admissibility of the Annuities Report Objections to the reliance on secondary sources… notwithstanding agreement on documentary evidence Written submissions, and oral argument presented by teleconference Crown Application dismissed Ensuing delay in Crown Response report – tentative hearing date moved

20 Oral History Hearing Three elders provided oral history testimony Tribunal’s flexibility regarding hearing venue Benefits of holding the hearing in the community Specialized process to facilitate hearing Will says provided to Crown counsel Will asks provided to Claimant Counsel may lead the witness Translator present Flexibility and elders provided with sufficient time to respond Many of the key features of the process were set out in the Williams Lake Protocol, issued a month later.

21 Experts Evidence Hearing Timing of the hearing in the Tribunal process Week long hearing structured by subject, not party Annuities Expert – Annuities Reply Expert Historical Expert – Historical Reply Expert Legislative History Expert – Lay Witness from SCB (Voir dire) Close of the hearing precipitated issues regarding Common Book of Documents Further disputes resolved by Tribunal which upheld principle that evidence is admissible if it is relevant and authenticity is not disputed – Tribunal will assess what weight, if any, to be applied to the evidence

22 Issues Re: Agreed Statement of Fact At the conclusion of the Expert’s Evidence Hearing parties instructed to prepare Agreed Statement of Fact and Common Book of Documents Facts now clearly in issue, parties only able to agree to superficial content Proposal to draft more detailed Agreed Statement of Fact setting out excerpts of the key historical documents rejected Could have been a tremendous asset to increase efficiency, but as the Crown’s position on the facts evolved, the process became more complicated and the final product did not result in agreement on many key facts (with exception of amount of annuities withheld from Beardy’s & Okemasis)

23 Issues Re: Common Book of Documents Draft provided April 30, 2014 Contents: Primary source historical documents previously exchanged in 2012 and primary source historical documents discovered in the course of drafting memorandum of fact and law. Not reviewed until June 3, 2014; no substantive objections raised Revised list sent week memorandum due, included 9 new documents Joint Book of Documents becomes Claimant Book of Documents day before Memorandum of Fact and Law

24 Issues Re: Common Book of Documents Crown Application to strike documents from Claimants book and passages from Memorandum of Fact and Law relying on impugned documents Crown allegations of case splitting and trial by ambush Important to note these were not responsive submissions Tribunal directed Crown to provide reports to Expert for comment with respect to whether the documents changed his position. Both the documents and excerpts from the Claimant’s Memorandum of Fact and Law provided to the Crown’s Expert for comment. Negotiated compromise, Crown withdrew Application to Strike

25 Crown Response to Memorandum First time in 13 years that the Claimant was presented with the Crown’s arguments regarding liability New arguments raised that were not in the Crown’s Response to the Declaration of Claim nor in the Application to Strike (departure from pleadings) Necessitated a somewhat longer Reply time than originally anticipated (plan accordingly)

26 Reflections for Claimants and Counsel Important to recognize that this is not the Specific Claims Process General idea that you are bound by the four corners of the original claim submission has been somewhat abandoned, potentially strategically, by the Crown. Because you aren’t able to see into the black box at the SCB, and the rejection of a claim for negotiation does not set out full reasons, the claimants are often not aware of the defenses that the Crown will raise, which, once raised, require that a claimant change its tact, and potentially explore new issues. (Examples from BOFN case)

27 Pros and Cons Pros: Justice at Last – Access to justice (maximum 3 year with full hearing within 3 years vs. 13 year average for response under former Specific Claims Policy) A fair and flexible process – Tribunal goes to great lengths to recognize the unique nature of the claims it adjudicates and some aspects of the hearing may be heard in community Emphasis on agreement and consensus between the parties often serves to prevent gridlock Cons More flexible than Federal Court but still adversarial Disconnect between the SCB process and the SCT Process creates some new procedural/ strategic issues for claimants The process remains extremely expensive – cost may be prohibitive for many First Nations

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