The Next Chapter in West Moberly’s Legal Odyssey: a Rights Protection Intervention

It’s been several years since the West Moberly Nation made the difficult decision to move towards a negotiation framework with the provincial government. Chief Roland Wilson and his community chose to pause their Site-C Dam treaty challenge and — with construction of the dam underway in their territory — focus on what could be salvaged and protected outside of the slim chance a court case could stop the project. 

In that time, the Nation has been as active as ever in defending not only their own lands and waters, but standing shoulder to shoulder with other Nations to advance Indigenous rights through the courts. 

On November 7 and 8th, 2023 the matter of Attorney General (Ontario) v. Restoule et al. was heard by the Supreme Court of Canada (SCC). 

West Moberly was there. 

The case deals with the interpretation of the Robinson Treaties in Ontario, and whether the signatory Nations are entitled to increases in their annuity payments. Back when the treaties were signed in 1850, members negotiated annual payments which — at the time — were a reasonably substantial $4. Anyone who has been to the grocery store even in the last year will tell you that $4 ain’t what it used to be. This case is a precedent-setting argument for a long-overdue adjustment for inflation of those annual payments. 

At both trial and at the Ontario Court of Appeal the First Nations were successful in arguing that a review of the annuities was required. Having lost in the lower court, Ontario appealed the decision to the SCC.

So, you can imagine how pleased we were when the West Moberly First Nation applied to RAVEN’s Intervenor Fund to assist in bringing an intervention to the SCC. Not only would we be supporting our good friends, but we’d be able to play a part in bringing financial equity to Nations in a decision that could impact hundreds of thousands of band members across the country. 

This is the magic of our Intervenor Fund. It’s a relatively affordable way to allow Nations to influence game changing cases, shoring up advances in rights without having to bear the full burden of the cost of a lengthy court challenge. We are so grateful to donor support that has allowed us to initiate this fund, with 8 interventions under our belt — and counting. 

B.C. Nation reaches across the country 

In their submissions to the SCC, West Moberly brought forward important considerations regarding Treaty interpretation that should inform all courts moving forward. 

This gets into complex legal concepts, but it’s important stuff to understand so we can track the progress of this case, and all the legal changes that could flow from a victory.

West Moberly addressed two of the issues raised in the appeal:

(a) what is the proper approach to appellate review of questions relating to the interpretation of historic Crown-Indigenous treaties? And

(b) should the principles governing the interpretation of historic treaties explicitly recognize the importance of Indigenous legal orders in discerning the common intention of the treaty partners?

The first, deals with a very technical legal question, but could have big impacts. 

In law, there is something called a Standard of Review. At a very high level, the Standard of Review determines how much an appeal court should defer to the original decision-maker.

In the first scenario, if the decision being made is one based on an interpretation of the facts where more than one answer is possible, the appeal court should defer more to the judgement of the original decision maker. That’s because  — in this case —  it was the Ontario Superior Court who had the benefit of hearing all the evidence and testimony. 

In the second scenario, if the decision is one based on a question of law — in which there can only be one correct answer — the standard of correctness applies, and an appeal court does not need to defer quite so much to the original decision maker. 

Phew. We know it’s wordy and complicated! But frankly, this is something a lot of legal battles are fought over because the result of which Standard of Review applies, can lead to big differences in how a case is decided.

Their intervention was grounded in the argument that, because the Treaties constitute a Nation-to-Nation relationship, their interpretation can’t be considered a simple question of law. Instead, there’s a need to consider the context and facts surrounding the negotiation of a Treaty, including the experiences of each and every Nation signatory. The understanding and interpretation of two different Nation signatories, even of the same Treaty, may not be the same. 

 We know, from learning about how Treaties were negotiated (see Home on Native Land lesson two, “Trick or Treaty” for more on this), what was written in early Treaties isn’t the entirety of the agreement. There were oral negotiations and agreements that form the basis of Indigenous People’s understanding of Treaties that must also be considered. 

As signatories of Treaty 8, which encompasses many Nations across parts of northern B.C., the Northwest Territories, Alberta, and Saskatchewan: West Moberly knows this intimately. 

Next, West Moberly argued that the principles guiding Treaty interpretation ought to explicitly recognize the importance of Indigenous legal orders. Courts currently recognize the principles guiding Treaty interpretation as:

  • Aboriginal treaties constitute a unique type of agreement and attract special principles of interpretation […] 
  • Treaties should be liberally construed and ambiguities or doubtful expressions should be resolved in favour of the aboriginal signatories […] 
  • The goal of treaty interpretation is to choose from among the various possible interpretations of common intention the one which best reconciles the interests of both parties at the time the treaty was signed […] 
  • In searching for the common intention of the parties, the integrity and honour of the Crown is presumed […] 
  • In determining the signatories’ respective understanding and intentions, the court must be sensitive to the unique cultural and linguistic differences between the parties […] 
  • The words of the treaty must be given the sense which they would naturally have held for the parties at the time […] 
  • A technical or contractual interpretation of treaty wording should be avoided […] 
  • While construing the language generously, courts cannot alter the terms of the treaty by exceeding what “is possible on the language” or realistic […] 
  • Treaty rights of aboriginal peoples must not be interpreted in a static or rigid way. They are not frozen at the date of signature. The interpreting court must update treaty rights to provide for their modern exercise. This involves determining what modern practices are reasonably incidental to the core treaty right in its modern context […] (Source: R. v. Marshall, 1999 CanLII 665 (SCC), [1999] 3 SCR 456, <https://canlii.ca/t/1fqkq> at para 78)

However, these principles don’t explicitly recognize Indigenous law. Nor do they require a court to consider Indigenous legal orders. Rather, these principles mean courts can treat the interpretation of Treaties much more like a business contract than a Nation-to-Nation agreement. 

At the heart of it, West Moberly is arguing for the Supreme Court to find that focusing solely on the plain meaning of the text essentially prioritises the Crown’s interpretation and colonial legal orders.

In their factum — a statement of legal argument that intervenors submit to the court —  counsel for West Moberly states:

“Placing Indigenous law on equal footing in the interpretation of historic treaties has the potential to have a powerful impact on how these treaties are understood and applied within the reconciliation framework of s. 35*. In some instances, oral history suggests that it is unlikely Indigenous signatories agreed to surrender title to their traditional territories – only to share it – as this concept did not exist under their own laws and languages.” (Source: SCC 40024_Factum of the Intervener West Moberly First Nations_Suitable for Posting (00890268-3).DOCX (scc-csc.ca))

*s.35 refers to Section 35 of Canada’s constitution, in which the existing aboriginal and treaty rights of Indigenous Peoples are recognized and affirmed. 

This has long been a position of researchers, Indigenous leaders, and communities who carry the memory of Treaty processes through oral storytelling and collective memory. In many cases, Nation signatories were not shown the final written version of Treaties, nor could they read what was not translated to their own languages. Interpreters were thin on the ground, and it was difficult if not impossible to ‘translate’ notions like ownership of land when Nations did not have words — let alone concepts — for the idea of surrendering land in perpetuity. 

This is an exciting area of law to be part of developing, and we are grateful to West Moberly for taking on this honestly thrilling work. Though the language, and precision, of law can be dry, the ensuing changes to Indigenous Peoples’ lives as a result of a successful decision will flood the whole country with new possibilities. 

Depending on how the SCC decides this case — in particular the matters of interpretation and the inclusion of Indigenous legal orders — there will be many impacts on Indigenous Nations. Our Breathing Lands campaign in particular would benefit from a decision that affirms the need to consider Indigenous legal orders when interpreting Treaties. 

While the law moves slowly… we are on the edge of our seats. Stay tuned. 

Video of submissions: 56:16 Supreme Court of Canada – SCC Case Information – Webcast of the Hearing on 2023-11-08 – 40024 (scc-csc.ca)

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