Date: 20011116
Docket: T-2022-89
Neutral citation: 2001 FCT 1249
BETWEEN:
CHIEF VICTOR BUFFALO acting on his own behalf and on behalf of all of the other members of the Samson Indian Nation and Band
- and -
THE SAMSON INDIAN BAND AND NATION,
PLAINTIFFS
AND:
HER MAJESTY THE QUEEN IN RIGHT OF CANADA, THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT and THE MINISTER OF FINANCE
DEFENDANTS
AND:
CHIEF JEROME MORIN acting on his own behalf as well as on behalf of all the MEMBERS OF ENOCH'S BAND OF INDIANS AND THE RESIDENTS THEREOF ON AND OF STONY PLAIN RESERVE NO. 135
INTERVENORS
AND:
EMILY STOYKA and SARA SCHUG
INTERVENORS
REASONS FOR ORDER
TEITELBAUM, J.
[1] This decision relates to an oral application by the Plaintiffs Chief Victor Buffalo and The Samson Indian Band and Nation (hereinafter referred to as Samson) wherein Samson requests that I permit the filing as evidence of Volume 1 and Volume 2, part 1 and part 2 of the Royal Commission Report on Aboriginal Peoples, hereinafter referred to as RCAP, and that the said volumes be marked as an exhibit in the proceedings before me.
[2] The defendant "Crown" objects to the filing of the said volumes of the report.
[3] I believe, to better understand my decision, some background is necessary.
[4] Samson Plaintiff called a Mr. James Youngblood Henderson as an expert witness in these proceedings and requested the Court's permission to file his report as an "experts" report.
[5] The defendant Crown contested the admissibility of Mr. Henderson's Expert Report which had been tendered by Samson Plaintiffs. In my Reasons for Order concerning the admissibility of the Henderson Report dated January 18, 2001, I say of his report, as it relates to the RCAP report,
[4] The second half of the Henderson Report provides a summary, or overview, of the Royal Commission on Aboriginal Peoples [hereinafter "RCAP"], which was established by the federal government and issued a five volume report in November 1996. The Henderson Report details the RCAP's mandate, and provides highlights of select findings, and recommendations.
[5] The Crown opposes the admission into evidence of the Henderson Report on the basis that it is neither relevant nor necessary. In oral submissions, the Crown indicated that the main thrust of its argument is with regard to the aspect of necessity.
...
[7] Samson plaintiffs argue that the Henderson Report will assist the Court by providing historical background and context for the evolution of the treaty process in North America in general, and Treaty 6 in particular, as well as the context of the treaty, aboriginal, and inherent rights which are the basis of the claims and constitutional questions to be determined in this action.
[6] Furthermore, in paragraph 23 of my January 18, 2001 decision I say:
[23] During the course of argument, counsel for Samson plaintiffs referred extensively to the RCAP Report and read selected excerpts. These exerpts, however, serve to underscore both the political and legal nature of the RCAP Report. For example, reference was made to Volume 1 ("Looking Forward, Looking Back"), Chapter 6 ("Displacement and Assimilation"), pp. 173-183. Topics dealt with in this chapter included the differing assumptions and understandings of Europeans and Aboriginals; non-fulfilment by the Crown of treaty rights and promises; restoring the spirit of the treaties; and historical measures of control and assimilation on the part of the Crown through federal legislation such as the Indian Act. The content of these pages, while partly historical in nature, is generally political argument. More political argument may also be found in Volume 2 of the RCAP Report ("Restructuring the Relationship"), chapters 1 ("Treaties") and 2 ("Governance"). Examples of overt legal argument may be found in Volume 1, chapter 9 ("the Indian Act). It is difficult, indeed nearly impossible, to fathom how Samson plaintiffs' proposed expert, Mr. Henderson, could be cross-examined on the content of the RCAP Report as he is not one of its authors. These remarks should not be taken to mean that the RCAP Report has no place whatsoever in this litigation; its place, however, is with counsel in the course of argument.
[7] As is obvious from the January 18, 2001 decision, I ruled that the Henderson Report which dealt, in part, with the RCAP Report was inadmissible.
[8] Samson plaintiffs attempted to take my decision to appeal. The Federal Court of Appeal quashed the appeal on the basis that the Court did not have the jurisdiction to hear the appeal.
[9] Plaintiffs decided to call as a lay witness Dr. J. Peter Meekison. Dr. Meekison was one of the Commissioners of RCAP. He was appointed to the Commission some two years after the work of the Commission had commenced and, if my understanding of his evidence is correct, took part in very few, not more than two, oral hearings.
[10] After Dr. Meekison gave his evidence, Samson plaintiffs presented a verbal application to be permitted to file Volumes 1 and 2, parts 1 and 2, of RCAP's Report as evidence in the proceedings.
[11] As reasons for their request, counsel for Samson submits that RCAP came about as a result of the Crown, by way of a Privy Council Order, directing that the Commission of Inquiry investigate and make certain concrete recommendations and report back to Parliament.
[12] Counsel for plaintiff admits that the report contains recommendations with respect to policy to be followed by Parliament but states that that should not determine whether the Report should or should not be admissible as evidence in this trial.
[13] Samson submits that the Court has heard similar evidence in the form of the Penner Report which was marked as an exhibit and which dealt with recommendations (as to policy) on Indian self-government.
[14] The Crown's submission to prevent the production of the first two volumes of the RCAP Report as evidence in this trial is that what ever the parties' rights and duties are towards each other, they existed before and independent of RCAP and that I, as trial judge, must assess what those rights and duties are and assess the Crown's conduct measured against those rights and duties, not measured against RCAP's Report. Counsel for the Crown submits that no new rights came into existence as a result of the RCAP recommendations and whatever submissions the plaintiffs have to make based on RCAP ought to be made in a political forum, not in the trial proceeding before me.
[15] It is my opinion that the work performed by the Commissioners appointed to conduct the inquiry on aboriginal peoples caused extensive research to be performed to arrive at the conclusions that they did. As Dr. Meekison stated in giving his evidence, the Commission's mandate was to recommend to the Government of Canada what the Government of Canada's future policy should be in the Government of Canada's relationship with aboriginal peoples.
[16] I agree with the submission of counsel for the Crown that "while RCAP may be a valuable contribution to the public policy debate relating to aboriginal matters, it is not necessary nor helpful to the Court process".
[17] I have said on numerous occasions during the trial that it is not my function to hold an inquiry. I have said, and I believe it is obvious, that my function is to conduct a trial to determine and decide the issues as I understand them from a reading of the Statement of Claim, from reading the Defence and from the evidence made before me.
[18] I wish to, once again state, that the report of the Royal Commission on Aboriginal Peoples is a "political" work in the sense that its purpose is to recommend to the Government of Canada how it should govern its policies in the Government's relationship with the aboriginal peoples of Canada. I am satisfied that I do not require the report of RCAP to help me legally determine the issues before me.
[19] In my decision dealing with Mr. Henderson's Report I stated that whatever is in the report by RCAP can be referred to by counsel in their final arguments for this case.
[20] With regard to the submission by counsel for Samson relating to the filing of the Penner Report as evidence, that is a very different situation. First, and foremost, the Penner Report was filed by Samson as evidence in the present trial. Defendant Crown did not object to its filing. Second, the Penner Report was prepared by members of Parliament for the Government of Canada. It was not prepared by third party Commissioners.
[21] The objection of the Crown to the filing by "Samson" of Volume 1 and Volume 2, part 1 and part 2, of the RCAP Report "as evidence" is allowed.
"Max M. Teitelbaum"
J. F. C. C.
Calgary, Alberta
November 16, 2001
TRIAL DIVISION
Date: 20011116
Docket: T-2022-89
BETWEEN:
CHIEF VICTOR BUFFALO acting on his own behalf and on behalf of all of the other members of the Samson Indian Nation and Band
- and -
THE SAMSON INDIAN BAND AND NATION,
PLAINTIFFS
AND:
HER MAJESTY THE QUEEN IN RIGHT OF CANADA, THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT and THE MINISTER OF FINANCE
DEFENDANTS
AND:
CHIEF JEROME MORIN acting on his own behalf as well as on behalf of all the MEMBERS OF ENOCH'S BAND OF INDIANS AND THE RESIDENTS THEREOF ON AND OF STONY PLAIN RESERVE NO. 135
INTERVENORS
AND:
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2022-89
STYLE OF CAUSE: Chief Victor Buffalo et al. v. Her Majesty the Queen et al.
PLACE OF HEARING: CALGARY, Alberta
DATE OF HEARING: November 1, 2001
REASONS FOR ORDER : TEITELBAUM, J.
DATED: November 16, 2001
APPEARANCES:
Mr. James O'Reilly
Mr. Ed Molstad
Mr. Peter Hutchins
Ms. C. Scathelin FOR PLAINTIFF SAMSON
T-2022-89
Ms. Claudia McKinnon FOR PLAINTIFF ERMINESKIN
T-1254-92
Mr. Allan Macleod, Q.C.
Mr. Clarke Hunter
Ms. Brenda Armitage FOR HER MAJESTY THE QUEEN
- 2 -
SOLICITORS OF RECORD:
O'Reilly & Associés
Montréal, Québec
Parlee McLaws
Calgary, Alberta
Hutchins, Soroka & Dionne
Montréal, Québec FOR PLAINTIFF SAMSON
T-2022-89
Blake, Cassels & Graydon FOR PLAINTIFF
Calgary, Alberta ERMINESKIN
T-1254-92
Mr. Morris Rosenberg FOR HER MAJESTY THE
Deputy Attorney General of Canada QUEEN