T-2861-90
Joyce Wilma Beattie (Plaintiff)
v.
Her Majesty the Queen, as represented by the Minister of Indian Affairs and Northern Development (Defendant)
T-2433-91
Joyce Wilma Beattie (Plaintiff)
v.
Her Majesty the Queen as represented by the Minister of Indian Affairs and Northern Development (Defendant)
T-2268-93
Joyce Wilma Beattie and Bruce Allan Beattie (Plaintiffs)
v.
Her Majesty the Queen (Defendant)
T-2269-93
Joyce Wilma Beattie and Bruce Allan Beattie (Plaintiffs)
v.
Her Majesty the Queen (Defendant)
T-2270-93
Joyce Wilma Beattie and Bruce Allan Beattie (Plaintiffs)
v.
Her Majesty the Queen (Defendant)
T-2432-91
Joyce Wilma Beattie (Plaintiff)
v.
Her Majesty the Queen as represented by the Minister of Indian Affairs and Northern Development (Defendant)
T-2271-93
Joyce Wilma Beattie (Plaintiff)
v.
Her Majesty the Queen (Defendant)
Indexed as: Beattiev. Canada (Minister of Indian Affairs and Northern Development) (T.D.)
Trial Division, Tremblay-Lamer J."Vancouver, May 13, 14; Ottawa, May 30, 1997.
Constitutional law — Aboriginal and Treaty Rights — Actions for reimbursement of tuition, instructional fees, accommodation, travel costs for Aboriginal children not living on reserve — Crown agreeing to pay salaries of teachers to instruct children under Treaty No. 11 — Actions dismissed — Benefits so conferred not extending beyond treaty area — Court must take into account context in which treaty negotiated; words interpreted in sense naturally understood by Indians at time of signing — When treaty executed, Native children receiving free education — Treaty confirming pre-existing situation — Bands' main concern medical attendance, schools at each post — Natives at time of signing not understanding education provision as conferring on them universal right to education — Constitution Act, 1982, s. 35(1) guaranteeing (i) access to free education (ii) confined to area defined in treaty (iii) akin or equivalent to education provided to non-native children in public school system.
Native peoples — Actions for reimbursement of tuition, instructional fees, travel, accommodation costs for Aboriginal children not living on reserve — Crown agreeing to pay teachers' salaries under Treaty No. 11 — Actions dismissed — Principles of treaty interpretation — Treaty benefits not extending beyond treaty area.
These were actions claiming damages for the Crown's refusal to comply with its treaty obligations and commitments. Mrs. Beattie and her two children are Aboriginal persons of Canada pursuant to Constitution Act, 1982, subsection 35(2). Although they are registered band members, they do not live on reserve land, but live near the city of Merritt, British Columbia. The plaintiffs assert rights under the "education provision" in Treaty No. 11 which was signed on July 21, 1921, whereunder the Crown agreed to pay the salaries of teachers to instruct the children in such manner as the government deemed advisable. The actions claimed reimbursement for (i) tuition and accommodation costs for Mrs. Beattie's daughter at a private school; (ii) instruction and examination fees for lifeguard training programs conducted by the city of Merritt and St. John Ambulance; (iii) travel and accommodation costs for her son to attend a senior secondary school in Cranbrook, British Columbia; (iv) program fees and other associated costs for a foreign study program under which her daughter studied in France for one school year; (v) property taxes levied against their residential property as "net school taxes" by the province for the school terms during which one or both children attended the Merritt Senior Secondary School in Cranbrook.
The issue was whether the benefits under the education provision in Treaty No. 11 were confined to the treaty area.
Held, the actions should be dismissed.
The following two principles of treaty interpretation are of primary importance in these circumstances: (1) when considering a treaty, a court must take into account the context in which it was negotiated; and (2) the words must be interpreted in the sense that would naturally have been understood by the Indians at the time of the signing. Applying these principles, the benefits conferred in the education clause in Treaty No. 11 did not extend beyond the boundaries of the treaty area.
At the date on which Treaty No. 11 was executed, Native children already received free education in the schools then established. The education provision in Treaty No. 11 only purported to confirm a pre-existing situation. In interpreting treaties, importance must be given both to the historical context, including the intention of the parties when they executed the treaty, and the evidence relating to facts which occurred shortly before or after the execution of the document. The detailed report which preceded the execution of Treaty No. 11 also indicated that the bands' main concern was to obtain both medical attendance and schools at each post. It was not expected that the children would go to school in a distinct area or a different country. The benefits were negotiated by the bands at each post for the benefit of their respective communities. It was inferred, given the context in which Treaty No. 11 was negotiated, that the schools, as well as the medical attendance were required in the geographical area defined in the treaty. All the other provisions of Treaty No. 11 relate to geographical boundaries as described therein. The logical interpretation of the education provision was that benefit would be provided only within the defined area. It was not conceivable that the Natives, at the time of signing, understood the terms of the education provision as conferring on them a universal right to education, i.e. free schooling outside the defined treaty area or territory.
Such an interpretation did not render the provision meaningless. It did confer advantages on treaty children. In fact, Constitution Act, 1982, subsection 35(1) constitutionally guarantees them access to free education. The extent of that constitutional safeguard was: (1) access to free education; (2) confined to the area defined in the treaty; (3) akin or equivalent to the education provided to non-Native children in the public school system.
As the education provision in Treaty No. 11 was found not to extend beyond the boundaries of the treaty area, the plaintiffs' claims concerning school taxes also failed.
statutes and regulations judicially considered
Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5], s. 91(24).
Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 35.
Indian Act, R.S.C., 1985, c. I-5.
cases judicially considered
applied:
R v. Badger, [1996] 1 S.C.R. 771; (1996), 133 D.L.R. (4th) 324; [1996] 4 W.W.R. 457; 181 A.R. 321; 37 Alta. L.R. (3d) 153; 105 C.C.C. (3d) 289; [1996] 2 C.N.L.R. 77; 195 N.R. 1; 116 W.A.C. 321; R. v. Sioui, [1990] 1 S.C.R. 1025; (1990), 70 D.L.R. (4th) 427; 56 C.C.C. (3d) 225; [1990] 3 C.N.L.R. 127; 109 N.R. 22; 30 Q.A.C. 287.
referred to:
Ontario (Attorney General) v. Bear Island Foundation, [1991] 2 S.C.R. 570; (1991), 83 D.L.R. (4th) 381; [1991] 3 C.N.L.R. 79; 127 N.R. 147; 46 O.A.C. 396; 20 R.P.R. (2d) 50; R. v. Nikal, [1996] 1 S.C.R. 1013; (1996), 133 D.L.R. (4th) 658; [1996] 5 W.W.R. 305; 74 B.C.A.C. 161; 19 B.C.L.R. (3d) 201; 105 C.C.C. (3d) 481; [1996] 3 C.N.L.R. 178; 35 C.R.R. (2d) 189; 196 N.R. 1; 121 W.A.C. 161; R. v. Van der Peet, [1996] 2 S.C.R. 507; (1996), 80 B.C.A.C. 81; 200 N.R. 1; 130 W.A.C. 81; R. v. N.T.C. Smokehouse Ltd., [1996] 2 S.C.R. 672; (1996), 137 D.L.R. (4th) 528; [1996] 9 W.W.R. 114; 80 B.C.A.C. 269; 23 B.C.L.R. (3d) 114; 109 C.C.C. (3d) 129; [1996] 4 C.N.L.R. 130; 50 C.R. (4th) 181; 200 N.R. 321; 130 W.A.C. 269; R. v. Gladstone, [1996] 2 S.C.R. 723; (1996), 137 D.L.R. (4th) 648; [1996] 9 W.W.R. 149; 79 B.C.A.C. 161; 23 B.C.L.R. (3d) 155; 109 C.C.C. (3d) 193; [1996] 4 C.N.L.R. 65; 50 C.R. (4th) 111; 200 N.R. 189; 129 W.A.C. 161; R. v. Adams, [1996] 3 S.C.R. 101; (1996), 138 D.L.R. (4th) 657; 110 C.C.C. (3d) 97; [1996] 4 C.N.L.R. 1; 202 N.R. 89; R. v. Côté, [1996] 3 R.S.C. 139.
ACTIONS for reimbursement of certain costs associated with the education of Aboriginal persons not living on reserve lands under the education provision of Treaty No. 11. Actions dismissed.
counsel:
John R. Haig, Q.C., for defendant.
appearance:
Joyce Wilma Beattie and Bruce Allan Beattie on their own behalf.
solicitor:
Deputy Attorney General of Canada for defendant.
plaintiffs on their own behalf:
Joyce Wilma Beattie and Bruce Allan Beattie, Vernon, British Columbia.
The following are the reasons for judgment rendered in English by
Tremblay-Lamer J.: This Court is seized with a number of actions wherein the plaintiffs claim damages for the Crown's refusal to comply with its treaty obligations and commitments.
The facts and the proceedings before the Court
Ms. Beattie is the plaintiff in actions T-2861-90, T-2432-91, T-2433-91 and T-2271-93. Mr. and Ms. Beattie are joint plaintiffs in actions T-2268-93, T-2269-93 and T-2270-93.
Mr. and Ms. Beattie reside on Godey Creek Road near the city of Merritt, British Columbia. They are the natural parents and guardians of Nikota Josette Janvier Beattie and T'Seluq François Harris Beattie. Ms. Beattie, her daughter and her son are Indians pursuant to section 91(24) of the Constitution Act, 18671 and are Aboriginal persons of Canada pursuant to subsection 35(2) of the Constitution Act, 1982.2 They are registered as Indians, pursuant to the Indian Act,3 and are members of the Fort Good Hope Indian Band. Although they are registered members of the latter Indian Band, they do not live on the reserve land. Rather, as indicated above, they live near the city of Merritt, British Columbia.
In these actions, the plaintiffs claim rights under the "education provision" in Treaty No. 11 which was signed on July 21, 1921 at Fort Good Hope. That provision reads as follows:
Further, His Majesty agrees to pay the salaries of teachers to instruct the children in such a manner as His Majesty's government may deem advisable.
I. The Actions
A. Claims Concerning Tuition Fees and Other Related Expenses
(a) Court File No. T-2861-90
On or around July 2, 1990, the plaintiff, Joyce Wilma Beattie, requested funding from the Department of Indian Affairs and Northern Development to cover the costs of tuition and accommodation for her daughter, Nikota Josette Janvier Beattie, at Maxwell International Baha'i School, a private school in which the plaintiff wished to register her child. The plaintiff was advised that the only payment the Department was prepared to make towards tuition and accommodation costs for Nikota Beattie was tuition in an amount equal to that payable under the British Columbia Master Tuition Agreement. Notwithstanding the position of the Department, the plaintiff chose to enrol her child at the Maxwell International Baha'i School. The school was advised that the Department was prepared to provide $4,726 as a contribution towards the tuition costs.
Ms. Beattie now claims $7,824, which represents the difference between the total costs of her daughter's schooling at Maxwell International Baha'i School and the amount actually paid by the Department. She claims that these fees were to be paid by the defendant under the terms of the education provision in Treaty No. 11.
(b) Court File No. T-2433-91
On July 15, 1992, the plaintiff's daughter commenced a Royal Life Saving Society Canada Aquatic Lifeguard training program conducted by the city of Merritt. She completed her course on August 12, 1991. The plaintiff advised the defendant of her intention to enrol Nikota in the lifeguard training program. It is argued that, by failing to advise to the contrary, the defendant deemed advisable the manner of instruction offered to Nikota.
The plaintiff paid to the city of Merritt instruction fees in the amount of $81 and examination fees in the amount of $27.50 for her daughter's enrolment in that program. She submits that these fees (the sum of $108.50) were to be paid for by the defendant under the education provision in Treaty No. 11.
(c) Court File No. T-2268-93
Nikota Josette Janvier Beattie commenced on July 24, 1993, and completed on August 22, 1993, a National Lifeguard Service Award training program, conducted by the city of Merritt, British Columbia. She also completed, on August 18, 1993, a Cardio-Pulmonary Resuscitation training course, conducted by the St. John Ambulance at Kamloops, British Columbia. The plaintiffs advised the defendant of their intention to enrol Nikota in these training programs. It is submitted that, by failing to advise to the contrary, the defendant deemed advisable the manner of instruction provided to Nikota.
Mr. and Ms. Beattie paid to the city of Merritt instruction fees in the amount of $254 and to St. John Ambulance instruction fees of $27. The salaries of the lifeguard training teachers were paid by the plaintiffs by way of these instructions fees. It is submitted that, under the terms of the education provision in Treaty No. 11, the fees should have been paid by the defendant. As a consequence, Mr. and Ms. Beattie claim damages in the amount of $281.
(d) Court File No. T-2269-93
From November 28, 1992 to June 29, 1993, the plaintiffs' son, T'Seluq François Harris Beattie, was a full-time student enrolled in grade 12 at Mount Baker Senior Secondary School in Cranbrook, British Columbia. The plaintiffs advised the defendant of their intention to enrol their child at the Mount Baker Senior Secondary School. Here again, the plaintiffs submit that, by failing to advise to the contrary, the defendant deemed advisable the manner of instruction provided by T'Seluq.
The Ktunaxa Independent School Society located on the St. Mary's Indian reserve near Cranbrook paid all of the applicable tuition fees for T'Seluq's grade 12 instruction to the school during the 1992-1993 school year. The costs of necessary travel and accommodation, however, were paid for by the plaintiffs. It is alleged that they should have been paid by the defendant under the education provision in Treaty No. 11. As a result, Mr. and Ms. Beattie claim damages in the amount of $3,885.60.
(e) Court File No. T-2270-93
From August 18, 1992 to June 25, 1993, Nikota resided in the town of Lesparre, France and was a full-time student enroled in the Education Foundation Foreign Study"High School Year in France. The plaintiffs advised the defendant of their intention to enrol Nikota in the foreign study program for the 1992-1993 school year. While the plaintiffs assert and maintain that the defendant deemed the manner of instruction advisable, the defendant states it never did.
The program fees and other associated costs for the foreign study program totalled $7,855, of which the Shackan-Nooaitch Administration located in Merritt, British Columbia paid $6,160. The balance of $1,695 was paid by the plaintiffs. It is submitted that, under the terms of the education provision in Treaty No. 11, the latter amount should have been paid by the defendant.
B. Claims Concerning School Taxes
(a) Court File No. T-2431-91
Ms. Beattie claims for recovery of school taxes which she had to pay to the province of British Columbia for the 1991-1992 school term, during which both of her children attended the Merritt Senior Secondary School. The salaries of public school teachers are paid by the province of British Columbia from general revenues collected in part from school taxes levied against British Columbia real property owners. Accordingly, the payment of the plaintiff's school taxes for 1991-1992 was to be arranged by the defendant pursuant to the education provision of Treaty No. 11. She therefore claims damages in the amount of $211.34.
(b) Court File No. T-2271-93
Throughout the 1992-1993 school year, the plaintiff's son, T'Seluq François Harris Beattie, was a student in full-time attendance at Mount Baker Senior Secondary School in Cranbrook, British Columbia. That school is an institution of the British Columbia public school system. The salaries of teachers employed by the public school system are paid by the province from general revenues collected in part from school taxes levied against real property located in British Columbia. The province levied school taxes on the plaintiffs in the amount of $202.14 for the year 1992 and $116.70 for the year 1993. The defendant refused to make arrangements for the payment of the school taxes. Ms. Beattie claims damages in the amount of $318.94.
II. The Parties' Submissions
A. Claims Concerning Tuition Fees and Other Related Expenses
(a) The Plaintiffs
In essence, the plaintiffs contend that the education provision in Treaty No. 11 must be construed very broadly. In particular, the plaintiffs submit that the education clause has no necessary connection to the land ceded, does not relate to either land use or legal jurisdiction, and the obligation to pay teachers' salaries is not expressly made payable at any specific location.
Furthermore, pursuant to section 35 of the Constitution Act, 1982, the treaty rights conferred upon the plaintiffs by the education provision in Treaty No. 11 have been recognized and affirmed. Recognition and affirmation require sensitivity and respect for the rights in question. Thus, under the terms of that provision, the defendant had a constitutional obligation vis-à-vis the plaintiffs "to pay the salaries of teachers to instruct the children in such a manner as His Majesty's government may deem advisable".
The Crown's obligations under the education provision are intrinsically limited by the use of the words "in such a manner as His Majesty's government may deem advisable". In this regard, the plaintiffs stress that the defendant's practice, at all levels from pre-school to graduate studies, has been to provide education funding directly to the Indians or indirectly through third party educational institutions or organizations. It is submitted that this method of funding is an appropriate and probably the only practical contemporary application of the defendant's Treaty No. 11 obligations. Put another way, the defendant has elected to vest its discretion with the parents, assuming that they accept such delegation. In the instant case, the plaintiffs did accept the responsibility to choose an advisable manner of instruction. As a result of the foregoing, the plaintiffs submit that the proper interpretation of the Treaty No. 11 entitlement to free education is to hold the Crown liable for payment of all costs, of every nature, that are necessarily and directly incurred by the parent to whom authority has been delegated.
To hold otherwise, they submit, would deprive the provision of any meaningful sense, place the Treaty No. 11 Indians in the same position as non-treaty Indians, and fly in the face of the priority which must be given to the Crown's constitutionally recognized and affirmed treaty obligations.
(b) The Defendant
The defendant first submits that the federal Crown intended, and the Natives understood, that the subject of the education provision in Treaty No. 11 was schooling in the schools then in existence in the treaty area. Although the wording of the provision does not specifically set out the purpose or location of the "instruction", they can properly be inferred by examining both the historical context and the general purpose of the treaty as a whole.
Another reason to conclude that the education provision is to be interpreted as providing for such benefits within the treaty area can be found in a careful analysis of the other provisions of the treaty. These provisions all relate to the geographical boundaries as described in the treaty.
At the outcome, the defendant turns to the raison d'être of Treaty No. 11. The focus of the education provision, as with other provisions, was the welfare of the Indian communities. By securing and enhancing the education of the children, the community as a whole would benefit. In other words, such benefits would be received within and would be for the benefit of those within the treaty area.
In light of the above, it is submitted that the plaintiffs, because they do not reside within the treaty area but rather, as indicated above, near the city of Merritt, B.C., are not entitled to any benefit or advantage under the terms of the education provision in Treaty No. 11.
In the alternative, the defendant submits that there has been no breach of the Crown's obligation under the education provision. The education provision in Treaty No. 11 provides the Crown with complete discretion in setting the level of education and therefore the costs that can or must be incurred. It has been the policy of the government throughout all material times to provide all Native children, whether they are treaty children or not, with educational opportunities akin or equivalent to those provided to non-Native children. The defendant submits that, on the facts of the present cases, one can only come to the conclusion that the plaintiffs were at the very least granted the same opportunities as non-Native children in British Columbia.
B. Claims Concerning School Taxes
(a) The Plaintiffs
The plaintiffs essentially refer to their previous submissions. For the above-mentioned reasons, the terms and conditions of the education provision in Treaty No. 11 are to be construed broadly. As a result, the plaintiffs contend they are entitled to the reimbursement of the property taxes levied against their residential property, all of which were imposed as "net school taxes". The treaty children's instruction being covered in full by the education provision, their parents should be allowed to recover "net school taxes" from which the salaries of their teachers were paid.
(b) The Defendant
The defendant reiterates the argument it made with respect to the claims concerning the tuition fees to the effect that the scope of the benefits and advantages under the education provision in Treaty No. 11 does not extend beyond the boundaries of the treaty area.
In the alternative, the defendant submits the following. Education is a public good and whether or not a property owner has children is thus immaterial. School taxes are not a payment by an individual taxpayer for education services specific to their own family, but rather a general community payment for the collective good.
The defendant further argues that the plaintiff did not prove that the amount she paid as "net school taxes" is an amount she actually paid to educate her children during the years in question. The plaintiff's "net school taxes" were intermingled with monies coming from a variety of other sources, and placed into the Consolidated/General Revenue Fund. While it can be said that the monies contained in that fund financed the operation of the Merritt School District for the years in question, one must not forget that the monies contained therein also financed the operation of numerous other school districts. Moreover, even if the plaintiff's contribution towards the Merritt School District could be calculated, the contribution of the plaintiffs would have to be divided by the number of students in the Merritt School District during each year in order to find out the amount paid by the plaintiff for the education of her children.
III. The Issues
In light of the above, I would state the issues before this Court in the present case as follows:
1. Are the benefits under the education provision in Treaty No. 11 confined to the treaty area? and, if not,
2. Did the Crown breach its obligation in the exercise of its discretion under that provision?
IV. Analysis
A. The Law on the Interpretation of Treaties
It should be noted at the outset that the protection offered by section 35 of the Constitution Act, 1982 extends to both Aboriginal and treaty rights. While most of the Supreme Court of Canada case law deals with the application of the constitutional safeguard in the context of Aboriginal rights,4 the recent decision of R. v. Badger5 provides guidance in identifying the principles to be applied in approaching treaty interpretation. Cory J., writing for the majority, summarized the applicable principles as follows:
. . . a treaty represents an exchange of solemn promises between the Crown and the various Indian nations. It is an agreement whose nature is sacred. See R. v. Sioui, [1990] 1 S.C.R. 1025, at p. 1063; Simon v. The Queen, [1985] 2 S.C.R. 387, at p. 401 . . . . the honour of the Crown is always at stake in its dealing with Indian people. Interpretations of treaties and statutory provisions which have an impact upon treaty or aboriginal rights must be approached in a manner which maintains the integrity of the Crown. It is always assumed that the Crown intends to fulfil its promises. No appearance of "sharp dealing" will be sanctioned. See Sparrow, supra , at pp. 1107-8 and 1114; R. v. Taylor (1981), 34 O.R. (2d) 360 (Ont. C.A.), at p. 367 . . . . any ambiguities or doubtful expressions in the wording of the treaty or document must be resolved in favour of the Indians. A corollary to this principle is that any limitations which restrict the rights of Indians under treaties must be narrowly construed. See Nowegijick v. The Queen, [1983] 1 S.C.R. 29, at p. 36; Simon, supra, at p. 402; Sioui, supra, at p. 1035; and Mitchell v. Peguis Indian Band, [1990] 2 S.C.R. 85, at pp. 142-43 . . . . the onus of proving that a treaty or aboriginal right has been extinguished lies upon the Crown. There must be "strict proof of the fact of extinguishment" and evidence of a clear and plain intention on the part of the government to extinguish treaty rights. See Simon, supra, at p. 406; Sioui, supra, at p. 1061; Calder v. Attorney-General of British Columbia, [1973] S.C.R. 313 at p. 404.
. . .
Treaty rights can only be amended where it is clear that effect was intended . . . .
. . .
Treaties and statutes relating to Indians should be liberally construed and any uncertainties, ambiguities or doubtful expressions should be resolved in favour of the Indians . . . . when considering a treaty, a court must take into account the context in which the treaties were negotiated, concluded and committed to writing. The treaties, as written documents, recorded an agreement that had already been reached orally and they did not always record the full extent of the oral agreement: see Alexander Morris, The Treaties of Canada with the Indians of Manitoba and the North-West Territories (1880), at pp. 338-42; Sioui, supra, at p. 1068; Report of the Aboriginal Justice Inquiry of Manitoba (1991); Jean Friesen, Grant me Wherewith to Make my Living (1985) . . . . the words in the treaty must not be interpreted in their strict technical sense nor subjected to rigid modern rules of construction. Rather, they must be interpreted in the sense that they would naturally have been understood by the Indians at the time of the signing. This applies, as well, to those words in a treaty which impose a limitation on the right which has been granted. See Nowegijick, supra, at p. 36; Sioui, supra, at pp. 1035-36 and 1044; Sparrow, supra, at p. 1107; and Mitchell, supra, where La Forest J. noted the significant difference that exists between the interpretation of treaties and statutes which pertain to Indians.6
B. Application to the Facts of the Case at Hand
(a) Claims concerning Tuition Fees and Other related Expenses
From the above, I take the two following principles to be of primary importance in the circumstances of the present proceedings. First, when considering a treaty a court must take into account the context in which the treaty was negotiated. Secondly, the words must be interpreted in the sense that would naturally have been understood by the Indians at the time of the signing. Applying these principles to the education clause in Treaty No. 11 and for reasons that I will amplify in the next paragraphs, I have reached the conclusion that the benefits conferred therein do not extend beyond the boundaries of the treaty area.
In the years immediately prior to Treaty No. 11, the Department of Indian Affairs operated schools which followed the public school curriculum in the area. This is apparent from the following passage of the 1918 Annual Report of the Department of Indian Affairs:7
By education, the department endeavours to give the rising generation of Indians such training as will make them loyal citizens of Canada and enable them to compete successfully with their white neighbours.
In the day schools, the course of studies prescribed for the provincial public and separate schools is strictly followed, and, in this way, Indian pupils can be prepared for the entrance examination.
In the residential schools, there is opportunity for a broader education than in the day schools. Particular attention is given to the class-room work, and, in addition, the girls are taught domestic science, sewing, etc., while the boys receive instruction in farming, care of stock, and, in many schools, some useful trade.
Qualified teachers with professional training are employed wherever possible, but, in some cases, qualified teachers cannot be secured, owing to the remoteness of some Indian schools. The Department has in its employ a number of teachers, who, though without professional training, have had a long experience in Indian work, and these prove quite successful.
In the Northwest Territories, the Department operated eight schools, four of which were located within the boundaries of the area defined in the subsequent Treaty No. 11.8 These schools proved to be at least as efficient as the white schools similarly situated.9 Thus, at the date on which Treaty No. 11 was executed, the Native children already received free education in the schools then established. It follows, in my view, that the education provision in the Treaty No. 11 only purported to confirm a pre-existing situation.
This is evident also from the detailed report which preceded the execution of Treaty No. 11. That report, which Commissioner Conroy prepared in contemplation of the treaty-making process, reads thus:10
Practically all the bands dealt with wanted more provision for medical attendance at each post, schools for their children, and supplies for their old and destitute.
I pointed out that they were still able to make their own living, and that Dr. A.L. MacDonald, of the Indian Department, was then with me, and that they could see him, and that he would attend them free if they wished, but that it was impossible for the Government to furnish regular medical attention, when they were occupying such a vast tract of territory. Schools were already established, and their children receiving free education, and supplies were left at each point for the sick and destitute. [Emphasis added.]
It is clear from Commissioner Conroy's remarks in the foregoing paragraph that the bands' main concern was to obtain both medical attendance and schools at each post. It was certainly not expected that the children would go to school in a distinct area or a different country. The benefits were negotiated by the bands at each post for the benefit of their respective communities.
It can properly be inferred, in my opinion, given the context in which Treaty No. 11 was negotiated, that the schools as well as the medical attendance were required in the geographical area defined in the treaty. This view is reinforced by an overview of the other provisions of Treaty No. 11. The key provisions in the treaty all relate to the geographical boundaries as described therein:
Paragraph 1 The parties are the Crown and the Indians.
Paragraph 3 Inhabitants of the territories within the defined area.
Paragraph 5 Surrender of rights title and privileges to the lands included in the defined area.
Paragraphs 6
and 17 The defined area.
Paragraphs 9, 10
and 11 Reserves within the boundaries.
Paragraph 19 Obey the law within the defined area.
I agree with counsel for the defendant that, in view of these provisions, one must conclude that the logical interpretation of the education provision is that benefit would be provided only within the defined area.
The plaintiffs heavily relied upon the decision of the Supreme Court of Canada in R. v. Sioui.11 In that case, the issue before the Court was whether the customary activities or religious rites practised by the Hurons in Jacques-Cartier park were protected by treaty. The treaty in question, however, unlike the one before this Court, did not define any territory or area within which the rights conferred were to be exercised. There was no express mention of the territorial scope of the treaty. If anything, it flows from the decision of the Supreme Court in Sioui, supra, that in interpreting treaties importance must be given both to the historical context, including the intention of the parties when they executed the treaty, and evidence relating to facts which occurred shortly before or after the execution of the document.
In the present case, it is not conceivable that the Natives, at the time of signing, understood the terms of the education provision as conferring on them a universal right to education, that is free schooling outside the defined treaty area or territory.
The plaintiffs contend that if the education provision is limited to the boundaries of the defined area it will be virtually meaningless and leave the "treaty" children with no practical advantage vis-à-vis non-treaty Native children. For the following reasons, I find this argument to be ill-founded.
As indicated above, the proper interpretation of the education provision is that benefit would be provided only within the boundaries of the defined territory. This does not, in my opinion, render the provision meaningless. I would further add that such an interpretation does confer advantages upon treaty children. In fact, by virtue of subsection 35(1) of the Constitution Act, 1982, they are constitutionally guaranteed to have access to free education. The extent of that constitutional safeguard is, in my opinion, as follows:
1. They are to have access to free education;
2. The free education, however, is confined to the area defined in the treaty;
3. The free education provided in the schools established therein must be akin or equivalent to the education provided to non-Native children in the public school system.
In view of my conclusion, I find it unnecessary to discuss the defendant's alternative position. The plaintiffs' actions are therefore dismissed with costs.
(b) Claims Concerning School Taxes
In light of my finding that the education provision in Treaty No. 11 does not extend beyond the boundaries of the treaty area, I am of the opinion that the plaintiffs' claims concerning school taxes must also fail and they are accordingly dismissed with costs.
1 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5].
2 Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44].
3 R.S.C., 1985, c. I-5, as amended.
4 ;Ontario (Attorney General) v. Bear Island Foundation, [1991] 2 S.C.R. 570; R. v. Nikal, [1996] 1 S.C.R. 1013; R. v. Van der Peet, [1996] 2 S.C.R. 507; R. v. N.T.C. Smokehouse Ltd., [1996] 2 S.C.R. 672; R. v. Gladstone, [1996] 2 S.C.R. 723; R. v. Adams, [1996] 3 S.C.R. 101, and R. v. Côté, [1996] 3 S.C.R. 139.
5 [1996] 1 S.C.R. 771.
6 Ibid., at pp. 793-794, 796-797, 798-799.
7 The plaintiffs and defendant's joint Book of Historical Documents, Tab No. 5.
8 The plaintiffs and defendant's joint Book of Historical Documents, Tab No. 7.
9 The plaintiffs and defendant's joint Book of Historical Documents, Tab No. 6.
10 The plaintiffs and defendant's joint Book of Historical Documents, Tab No. 15.
11 [1990] 1 S.C.R. 1025.