Executive Summary: Key Legal and Evidentiary Issues

• Interpretation of Order in Council PC 1151 establishing Indian Reserve 80A as a "Fishing Station for the use of the Touchwood Hills and Qu'Appelle Valley Indians" was the central question.

• Crown intent, as reflected primarily through Surveyor John C. Nelson's documentation, was deemed the governing factor in determining beneficiary status.

• Oral history evidence from Indigenous Elders was found inconsistent across First Nations, undermining its evidentiary weight in establishing a nexus to Crown intent.

• The Tribunal found the phrase facially ambiguous but concluded the evidentiary record resolved any ambiguity, declining to apply interpretive principles favouring Indigenous interests.

• File Hills Bands (including the Applicants) were excluded as beneficiaries because their reserves were located in a geographically distinct area from the Touchwood Hills and Qu'Appelle Valley.

• A dissenting opinion argued the Tribunal unreasonably minimized interpretive principles favouring Indigenous interests when multiple Indigenous beneficiaries had competing claims.

Background and historical context

This case arose from a dispute before the Specific Claims Tribunal concerning Indian Reserve No. IR 80A, known by its Indigenous name Kinookimaw. The reserve was created in 1889 by Order in Council PC 1151 and described simply as a "Fishing Station for the use of the Touchwood Hills and Qu'Appelle Valley Indians." The underlying claim related to the Crown's alleged breach of duties upon a purported surrender of the reserve in 1918. Before the merits could be addressed, the Tribunal first had to determine which of eleven First Nations claiming beneficiary status actually held that status.

All claimant First Nations were historically nomadic peoples in what is now southern Saskatchewan who followed a migratory route through the Qu'Appelle region. All but one of the claimants were Cree and Saulteaux peoples who entered into Treaty 4 with Canada in 1874, while Standing Buffalo Dakota First Nation, being Dakota/Sioux, did not enter into any Treaty but was independently provided with a reserve in consideration of services it rendered to the Crown.

The Tribunal's decision and approach

The Tribunal, in its decision reported as Kawacatoose First Nation v. Canada, 2019 SCTC 3, concluded that eight of the eleven First Nations were beneficiaries of IR 80A—namely, the seven First Nations in the "Kawacatoose Group" (historically recognized by the Crown as beneficiaries) plus Standing Buffalo Dakota First Nation. The File Hills Bands, which included Little Black Bear First Nation and Star Blanket First Nation, were denied beneficiary status.

The Tribunal's analysis centred on determining the Crown's intent when PC 1151 was enacted. It found that Surveyor John C. Nelson, who surveyed IR 80A and whose work formed the basis for PC 1151, used the terms "Touchwood Hills" and "Qu'Appelle Valley" in a geographic sense. The Tribunal determined that Mr. Nelson understood the Touchwood Hills, File Hills, and Qu'Appelle Valley as three distinct geographic locations and did not intend to include the File Hills Bands as beneficiaries. Canada treated the benefits of IR 80A as Mr. Nelson had intended, and it was consistent in doing so.

Treatment of oral history evidence

The Tribunal heard evidence from 14 Elders called by some of the claimants to testify about their First Nations' historical relationship with IR 80A. While the Tribunal found that the Elders had "accurately recounted the information passed down to them," it also concluded that their testimony "conflicted from one First Nation to another as well as internally among witnesses from the same First Nation." The Tribunal expressed skepticism regarding testimony suggesting an oral promise of fishing station reserves made at the time of Treaty adherence, finding this evidence came "with little elaboration or underlying factual basis."

The Tribunal determined that Indigenous perspectives could only assist in interpretation if there was a demonstrated "nexus" between those perspectives and the Crown's intent. It found no evidence that Mr. Nelson was made aware of the File Hills Bands' need for a fishing station or their perspectives at any relevant time.

The judicial review applications

Little Black Bear First Nation and Star Blanket First Nation sought judicial review before the Federal Court of Appeal. The applications were heard together in Regina, Saskatchewan on September 26 and 27, 2023. The Crown took no position before the Tribunal or the Court on who the proper beneficiaries were.

The Applicants argued that the Tribunal unreasonably found the phrase "Touchwood Hills and Qu'Appelle Valley Indians" was not ambiguous, that it erred by determining interpretation solely by Crown intent, that it took an overly restrictive approach to oral history evidence, and that it failed to properly apply principles stemming from the honour of the Crown.

The majority decision

Justice Woods, with Justice Heckman concurring, dismissed both judicial review applications. The majority applied the deferential standard of reasonableness, recognizing that the Specific Claims Tribunal is particularly suited to adjudicate these issues involving the application of legal principles and doctrines to historical claims.

The majority found the Tribunal's approach reasonable in focusing on Crown intent as the governing factor for interpreting PC 1151. The Tribunal reasoned that, although the words by themselves are ambiguous, the ambiguity is resolved by the evidentiary record. The majority rejected the argument that an ambiguity on the face of PC 1151 was sufficient to warrant applying a presumption in favour of Indigenous interests, noting that the presumption applies only "if two approaches to the interpretation and application of an enactment are reasonably sustainable as a matter of law" and the ambiguity must be "a genuine one."

Regarding the oral history evidence, the majority deferred to the Tribunal's factual findings, noting that reasonableness review requires deference and the Applicants had not established that the Tribunal fundamentally misapprehended or failed to consider evidence. The majority also rejected arguments based on the honour of the Crown, finding that such principles "cannot alter the terms of the treaty [or Order in Council] by exceeding what 'is possible on the language' or realistic."

The dissenting opinion

Justice Gleason dissented, finding the Tribunal's decision unreasonable. She took particular issue with the Tribunal's statement at paragraph 148 of its decision that "principles of treaty interpretation and the honour of the Crown...have less useful application where...the Indigenous beneficiaries of a Crown promise have conflicting perspectives and interests in the subject of the promise."

Justice Gleason argued this minimization of fundamental interpretive principles tainted the Tribunal's statutory interpretation analysis. She emphasized that the honour of the Crown is "always at stake" in circumstances where it is engaged and applies equally whether there are conflicting Indigenous perspectives or not. She further argued that where competing Indigenous interests exist, the interpretation that minimally impairs all of the Indigenous interests at stake must be adopted to resolve true ambiguities—which would favour recognizing the Applicants as beneficiaries since they would at worst share in any damages award, whereas the Tribunal's finding completely disentitled them.

The dissent also criticized the Tribunal for glossing over the facially ambiguous text of PC 1151, the purpose of fishing stations, and numerous contextual factors including the Applicants' strong cultural and historical ties to Kinookimaw (where Chiefs of two File Hills Bands "had both died and been buried" before the reserve was created), their self-identification as people of the Qu'Appelle Valley, and contemporaneous notes of Surveyor Nelson made in 1883 identifying the applicants' reserves, those in the Touchwood Hills, and a fishing station on Last Mountain Lake as all being in the Qu'Appelle District.

Costs assessment

Following the judgment on the merits dated July 12, 2024, the Court issued separate costs orders on September 10, 2024 requiring Little Black Bear First Nation to pay costs to each of the respondents, Kawacatoose First Nation and Standing Buffalo Dakota First Nation, assessed based on the midrange of column III of Tariff B. The costs assessment decision, reported at 2026 FCA 7, addressed Standing Buffalo's bill of costs.

The Assessment Officer allowed 32 units to Standing Buffalo for assessable services, reducing some claimed amounts where they exceeded the midpoint of column III or were not supported by the judgment. The claim for costs related to an interlocutory motion was disallowed because the order dated January 20, 2023 was silent as to costs. Claims for second and third counsel attendance were denied because the decision awarding costs did not bear an order of the Court entitling such recovery. Disbursements for printing were reduced to $0.25 per page, an amount deemed reasonable by case law, and meal expenses were limited to rates under Appendix C of the National Joint Council Travel Directive.

Final outcome

The Federal Court of Appeal dismissed the judicial review applications by Little Black Bear First Nation and Star Blanket First Nation, thereby upholding the Specific Claims Tribunal's determination that they were not beneficiaries of IR 80A. Standing Buffalo Dakota First Nation's Bill of Costs was assessed and allowed in the amount of $6,128.80 payable by Little Black Bear First Nation to Standing Buffalo Dakota First Nation. The question of any breach of Crown duties upon the 1918 surrender remained to be addressed in subsequent phases of the Tribunal proceedings, as these judicial review applications concerned only the Tribunal's standing sub-phase.