Case: Attorney General of Ontario, et al. v. Mike Restoule, et al. (SCC File No.: 40024)
Firm: Katie Duke, CFM Lawyers
Status: Pending
West Moberly First Nation (Peace region, British Columbia) is intervening in the Attorney General of Ontario, et al. v. Mike Restoule case pushing for augmentation of treaty annuities.
As a nation with rights under Treaty 8, West Moberly has a strong interest in the outcome of this appeal, as the decision will guide subsequent appellate courts tasked with review of lower court treaty interpretation decisions and the legal principles applicable to the interpretation of historic treaties.
West Moberly has gone to court in the past to protect its constitutionally entrenched Treaty 8 rights, and will go to court again if these rights are under threat. It is currently a plaintiff in a court case that seeks redress for the impacts of resource development in its territory, including two existing dams on the Peace River, the Bennett Dam and the Peace Canyon Dam.
West Moberly is a Treaty 8 Nation. It has leave to intervene in this matter and has filed its factum. It has met the criteria for bringing a novel and unique perspective, which was based on its status as a Treaty 8 Nation with a perspective on the need to consider context at the time of Treaty making and Indigenous law.
In its factum, West Moberly makes two main submissions. First, it argues that the standard of review in relation to treaty interpretation should not treat interpretation as a question of law. This relatively minor seeming point has profound implications for how treaty cases will be litigated going forward. Specifically, if the interpretation of a historical treaty is a question of law, then the interpretation adopted by a Court in a previous case will be presumptively applicable to the circumstances of other Indigenous treaty beneficiaries because of stare decisis. This will be so regardless of whether there are facts unique to the circumstances of the Nation’s choice to sign or adhere to a Treaty.
Second, West Moberly argues that the principles of Treaty interpretation ought to explicitly recognize the importance of Indigenous Law. The case provides an opportunity for the Court to go beyond merely calling for consideration of the Indigenous “perspective” and instead to recognize that it is necessary and appropriate to consider the law of both Treaty partners. If Indigenous law is put on equal footing in Treaty interpretation to settler law this could have a profound range of consequences for Treaty interpretation, including potentially supporting arguments that Indigenous Treaty partners did not intend to cede their land but rather to share it, as the concept of ceding land is unknown in their law.
It is hoped that this intervention will allow counsel much greater freedom to push against the narrow interpretations of historical treaty rights that currently have placed Nations like West Moberly at a significant disadvantage when litigating on issues such as the Site C Dam.
Many First Nations are intervening including Grassy Narrows, the AFN,and the Federation of Sovereign Indigenous Nations. There is no one overarching body organizing strategy among the interveners. Legal counsel for the interveners have, however, been in contact to coordinate strategy and avoid repetition.
