Executive Summary: Key Legal and Evidentiary Issues

• Interpretation of Order in Council PC 1151 hinged on determining Crown intent regarding the phrase "Touchwood Hills and Qu'Appelle Valley Indians" as beneficiaries of fishing station reserve IR 80A.

• The Specific Claims Tribunal concluded Crown intent governed the interpretation, finding that surveyor John C. Nelson's geographic perspective—not Indigenous perspectives—defined the beneficiary class.

• Oral history evidence from Indigenous Elders contained differences, variations, and inconsistencies that undermined the evidence, both on an individual and overall basis.

• The majority of the Federal Court of Appeal applied reasonableness review and upheld the Tribunal's decision, dismissing judicial review applications by Little Black Bear and Star Blanket First Nations.

• A dissenting opinion argued the Tribunal unreasonably minimized principles requiring liberal interpretation of enactments affecting Indigenous interests and resolution of ambiguities in their favour.

• Standing Buffalo Dakota First Nation was awarded $6,128.80 in assessed costs against Star Blanket First Nation following the unsuccessful judicial review.

Historical background and the disputed fishing station reserve

This litigation concerns Indian Reserve No. IR 80A (known by its Indigenous name, Kinookimaw), a fishing station reserve created in 1889 through Order in Council PC 1151. The reserve was established near Last Mountain Lake and the Qu'Appelle River in what is now southern Saskatchewan, described simply as a "Fishing Station for the use of the Touchwood Hills and Qu'Appelle Valley Indians." The central dispute was which First Nations were intended beneficiaries under this description.

Eleven First Nations claimed beneficiary status, organized into three geographic groupings: the Touchwood Hills Bands (Day Star, George Gordon, Muskowekwan, and Kawacatoose First Nations), the Qu'Appelle River/Lake Bands (Pasqua, Muscowpetung, Piapot, and Standing Buffalo First Nations), and the File Hills Bands (Little Black Bear, Star Blanket, and Peepeekisis First Nations). The Crown historically recognized only seven First Nations as beneficiaries—the "Kawacatoose Group"—which excluded the File Hills Bands and Standing Buffalo.

Treaty 4 and the creation of reserves

All Claimants except Standing Buffalo Dakota First Nation entered Treaty 4 with Canada in 1874. The treaty encompassed a large geographic area and promised that reserves would be assigned by the Crown after consultation with each Band, while also guaranteeing Indigenous peoples the right to pursue fishing and hunting throughout the surrendered territory, except on lands taken up for settlement. Standing Buffalo, being Dakota/Sioux rather than Cree or Saulteaux, did not enter any treaty but was independently provided a reserve for services rendered to the Crown.

Reserve boundaries were determined through surveys conducted by Dominion Land Surveyors, with John C. Nelson playing a central role. PC 1151 was an omnibus Order in Council formally approving many reserves, including 84 residential reserves, two fishing stations, one hay ground, and two timber limits. Fishing station reserves were first developed in 1881 to provide exclusive fishing access for designated Bands along bodies of water, replacing earlier systems of designating entire lakes for Indigenous use.

The surrender controversy and subsequent litigation

In the early 1900s, the Department of Indian Affairs sought to surrender IR 80A. Surrender documents were purportedly signed by the seven chiefs of the Kawacatoose Group, and the surrender was confirmed in 1918 by PC 1815. The distribution of sale proceeds sparked internal Department debate about entitlement. Some officials sympathized with the view that the File Hills Bands should have been included as "Qu'Appelle Valley Indians" because their reserves, like those of the Touchwood Hills Bands, were not in close proximity to fishing lakes. However, the Department's position that the Bands belonging to the Kawacatoose Group were the only intended beneficiaries of IR 80A did not change. Some of the Bands continued to express dissatisfaction at least up until 1954.

When a claim regarding the Crown's administration of IR 80A's surrender was filed before the Specific Claims Tribunal, the proceedings were bifurcated into two phases. The standing sub-phase required the Tribunal to determine which First Nations were actual beneficiaries and therefore had standing to pursue the claim.

The Tribunal's approach to interpretation

The Tribunal applied principles of statutory interpretation to PC 1151, relying on the well-established approach that words must be read in their entire context and ordinary sense, harmoniously with the scheme, object, and intention of the legislation. The Tribunal emphasized that Crown intent was paramount in determining reserve beneficiaries, drawing on reserve creation jurisprudence that places great emphasis on what the Crown intended.

The Tribunal acknowledged interpretive principles applicable to provisions impacting Indigenous interests—specifically, that ambiguous provisions should be generously interpreted and approached in a manner upholding the honour of the Crown. However, it controversially concluded these principles "have less useful application where, as here, the Indigenous beneficiaries of a Crown promise have conflicting perspectives and interests in the subject of the promise." This finding became a focal point of the dissenting opinion.

Evaluation of oral history evidence

The Tribunal heard testimony from 14 Elders called by various Claimants regarding their First Nation's use of, sense of entitlement to, and historical relationship with IR 80A. While finding that the Elders had "accurately recounted the information passed down to them," the Tribunal also concluded their testimonies "conflicted from one First Nation to another as well as internally among witnesses from the same First Nation." The Tribunal found that these differences, variations, and inconsistencies undermined their evidence, both on an individual and overall basis.

The Tribunal expressed skepticism about testimony suggesting entitlement to IR 80A stemmed from oral promises made at Treaty 4 negotiations. This evidence came "with little elaboration or underlying factual basis," and the evidence as presented "was not sufficiently developed to support a finding that a promise of fishing station reserves was made at the time of Treaty adherence." The Tribunal also noted there was nothing to indicate that the device of the fishing station had been conceived of at the time of the signing of Treaty 4. Ultimately, the Tribunal required a "nexus" between Indigenous perspectives and Crown intent for oral history evidence to be relevant—meaning such evidence could only assist if it demonstrated the Crown was aware of and motivated to act upon Indigenous perspectives.

The documentary record and surveyor Nelson's intent

Through meticulous review of documentary evidence, the Tribunal concluded that surveyor John C. Nelson's intent should govern because his work was the basis for PC 1151, which was in turn the stamp of approval of the content he had generated. The Tribunal found Nelson intended IR 80A for the "shared benefit of the bands residing in the geographic area known as the Touchwood Hills, and also in the Qu'Appelle Valley itself along the shores of the Qu'Appelle River or Lakes." This geographic interpretation explicitly excluded the File Hills Bands.

The Tribunal acknowledged that Nelson was attentive to communities' needs and tried to understand the needs of the communities he was serving, and would likely have tried to accommodate the File Hills Bands had he been aware of their need for fishing access. However, there was no evidence that the File Hills Bands experienced difficulty obtaining fish, other than the interference created by the pass system and imposed on all Bands in the District, and no evidence they communicated their needs to Nelson.

The Tribunal's conclusions on beneficiary status

The Tribunal concluded that eight of the eleven Claimants were beneficiaries: the seven First Nations in the Kawacatoose Group plus Standing Buffalo Dakota First Nation. Standing Buffalo had been improperly excluded by the Department on the basis that the Band was American Sioux, but since its reserve was located in the Qu'Appelle Valley, it qualified under the geographic interpretation. The File Hills Bands—Little Black Bear, Star Blanket, and Peepeekisis First Nations—were excluded because the Crown understood Touchwood Hills, File Hills, and Qu'Appelle Valley as three distinct geographic locations.

The Federal Court of Appeal's majority decision

Little Black Bear and Star Blanket First Nations sought judicial review, arguing the Tribunal's decision was unreasonable. The majority applied reasonableness review, requiring deference to the Tribunal's specialized expertise in adjudicating historical claims.

The majority rejected arguments that the Tribunal erred in finding no genuine ambiguity in PC 1151. While acknowledging the words by themselves are ambiguous, the majority accepted that the evidentiary record resolved this ambiguity. The proper test from jurisprudence required examining whether differing readings "cannot be decisively resolved through the contextual and purposive approach." The Tribunal's extensive consideration of evidence and cogent reasons supported its conclusion that the evidentiary record clearly resolves the ambiguity.

The majority also rejected arguments that Indigenous perspectives should have been given equal or independent weight in interpretation. The Tribunal's approach was consistent with analogous jurisprudence in which courts focused on Crown intent when interpreting Orders in Council creating reserves, while remaining open to Indigenous perspectives where they illuminated that intent.

Regarding honour of the Crown principles, the majority emphasized that "generous rules of interpretation should not be confused with a vague sense of after-the-fact largesse" and the honour of the Crown cannot require adopting meanings the enactment cannot reasonably bear.

The dissenting opinion

Justice Gleason dissented, finding the decision unreasonable due to the Tribunal's minimization of interpretive principles favouring Indigenous interests. She argued these principles are "always at stake" when engaged and apply equally where Indigenous communities have competing interests—the interpretation minimally impairing all Indigenous interests should be adopted to resolve ambiguities.

The dissent identified multiple contextual factors the Tribunal inadequately considered: all communities had strong cultural and socio-economic ties to IR 80A; Chiefs of two File Hills Bands "had both died and been buried" there before the reserve was created; all groups considered themselves people of the Qu'Appelle Valley; the File Hills Bands were at times administered by the Qu'Appelle Agency; and Nelson's own 1883 notes identified the applicants' reserves, those in the Touchwood Hills, and a fishing station on Last Mountain Lake as all being in the Qu'Appelle District.

The costs assessment proceeding

Following the dismissal of judicial review applications, Standing Buffalo Dakota First Nation submitted a bill of costs on June 30, 2025, seeking reimbursement from Star Blanket First Nation. The costs assessment was conducted in writing by Assessment Officer Stéphanie St-Pierre Babin.

Several items were contested. The Assessment Officer determined that the correct unit value was $180.00 (the rate in effect when the bill was filed) rather than $183.43 as applied in the Bill of Costs. Standing Buffalo was entitled to claim costs on both court files A-303-19 and A-328-19 because the Court issued two separate judgments on September 10, 2024, awarding costs, indicating an intention for two separate sets of costs rather than one combined set.

Claims for a contested motion were disallowed because the order made on January 20, 2023, was silent on costs, which under settled law is treated as an award of no costs. Claims for second and third counsel at hearing under Item 14(b) were also disallowed because Tariff B permits such costs only "where Court directs," and no such direction existed.

Regarding disbursements, in-house printing costs were reduced from $0.50 per colour page and $0.35 per black and white page to $0.25 per page, as case law establishes the amount per page that may be claimed is the actual cost incurred by the law firm, not the amount charged to the client. Lunch expenses were limited to $29.60 per Appendix C of the National Joint Council Travel Directive rather than the $37.31 receipt amount.

Final outcome and amounts awarded

The Federal Court of Appeal dismissed the judicial review applications by majority decision (Woods J.A. with Heckman J.A. concurring), with Justice Gleason dissenting. In total, 32 units were allowed to Standing Buffalo. Following the costs assessment, Star Blanket First Nation was ordered to pay Standing Buffalo Dakota First Nation $6,128.80 in assessed costs. A Certificate of Assessment was issued for this amount on January 15, 2026.