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GRASSY NARROWS X: AN ALTERNATIVE ARGUMENT.

I    INTRODUCTION                                                  35
II   HISTORY OF THE DEFEATED ACTION                                36
I    THE DEFEATED KEEWATIN ARGUMENT IN CONTRAST                    
     TO THE ARGUMENT THAT FOLLOWS                                  41
II   ANALYSIS OF THE LAW                                           43
     I. Applicability of contract law to treaty interpretation in 
        Canada                                                     44
     II. Doctrine of mistake                                       46
     III. Ambiguity in contractual terms                           48
     IV. Negligent and fraudulent misrepresentation in contracts   49
III  APPLICATION OF THE LAW TO THE FACTS                           51
     I. The application of contract law to the interpretation of 
     Treaty 3                                                      52
     II. The doctrine of mistake in the current case               52
     III. Ambiguity as it applies to this case                     57
     IV. Negligent and fraudulent misrepresentation                58
IV   THE SUBSEQUENT PROCEEDING ON ESTABLISHING ABORIGINAL TITLE    60
V    CONCLUSION                                                    61
VI   BIBLIOGRAPHY                                                  63
VII  APPENDIX                                                      65


I INTRODUCTION

In this essay, I will use mechanisms of common law to advance an alternative argument, on behalf of Grassy Narrow First Nation, to that advanced in 2009 (1) and ultimately defeated in 2014. (2) My argument is premised on contract law, supplemented by common law principles of jurisprudence applied to sui generis Aboriginal contexts. My argument relies principally on the common law principles of mistake, ambiguity and misrepresentation, and the consequential voidable effect upon a contract. It is my stance that by utilizing contract law, this argument avoids falling prey to the formalities of federalism, as established in the Constitution Act, 1867, (3) which led to the complainant's 2014 defeat. The argument advanced in this manuscript will demonstrate the voidability of Treaty 3 vis-a-vis the Keewatin area. Once voided, no contractual authority will lie within the hands of the Crown to beneficial interest in the land. There being no tenable dispute about the Grassy Narrows First Nations occupying the treatied land prior to the enactment of Treaty 3, establishing Aboriginal title to the area will be a reasonably simple matter. (4) The end effect is that the First Nation community will be free to negotiate a new treaty with the Crown incorporating terms more suitable for contemporary contexts, or to retain title to the land and to the rights that flow therefrom as established in Tsilhqot'in. (5)

I will advance my argument by first providing a brief history of the defeated Grassy Narrows proceeding followed by an analysis of the salient common law, then an application of the law to the facts. Finally, I will briefly outline how the voidability of the treaty creates space for a claim to Aboriginal title.

II HISTORY OF THE DEFEATED ACTION

In 2000, Grassy Narrows First Nation sought judicial review to set aside tree farm licenses granted by the province of Ontario to Abitibi-Consolidated Inc. ("Abitibi") in 1997 for the clear cut logging of Crown land situated within Treaty 3 boundaries. The District Court refused the application, citing its lack of jurisdiction to rule on constitutional matters. (6) In 2003, the plaintiffs, Willie Keewatin, Andrew Keewatin Jr., and Joseph Fibster, members of the Grassy Narrows First Nation, were authorized to bring an action against Ontario's Minister of Natural Resources and Abitibi, on behalf of the members of the First Nation community. (7) In that proceeding, launched in 2005, the plaintiffs ("Keewatin") argued that clear-cutting practices by Abitibi on Treaty 3 land significantly interfered with their trap lines, and that by issuing tree farm licenses to Abitibi in 1997, the province contravened Indigenous harvesting rights as guaranteed by Treaty 3.

Treaty 3 was entered into in 1873 after two failed negotiations by the Dominion government with the Ojibwe predecessors of the Grassy Narrows First Nation in 1871 and 1872. (8) The British Crown's interest in securing a pact with the Ojibwe was embedded in establishing a secure railway route connecting British Columbia to the colonial settlements in the east, unhampered by Indigenous populations who felt dishonored by the incursion. At the time Treaty 3 was signed by the Ojibwe Chiefs, much of Treaty 3 land was the focus of a dispute between the governments of Canada and Ontario. The dispute arose out of unsettled territorial boundaries between the province and the Dominion, and the consequential jurisdictional control the disputed areas were claimed to be under. The area of concern to the plaintiffs ("Keewatin land") was conclusively under the claimed control of Canada at the time, and not part of the disputed area. (9) Subsequent to the signing of Treaty 3, Canada and Ontario entered into a provisional agreement in 1874 regarding the disputed borders, and Ontario's position as holding beneficial interest was accepted by arbitration in 1878. Later that year, re-elected Prime Minister John A. MacDonald refused to acknowledge the 1878 arbitration decision and, although it was affirmed by the Privy Council in 1884, he asserted that the federal government had beneficial ownership of the disputed area because it was the signatory to the treaty. (10) Notwithstanding this assertion, the matter of beneficial ownership in Crown lands in general, and within the disputed area specifically, was resolved in Ontario's favor in 1889 through applying the mechanisms of federalism as established by the Constitution Act, 1867. (11) Although the Keewatin lands had not been part of this disputed area, they were geographically proximal, and the uncertainty demonstrated by the colonial government is contextually significant. In 1912 Ontario's borders were statutorily extended to include the Keewatin lands. (12)

Treaty 3 contains a "Harvesting Clause" that ostensibly assures the Aboriginal signatories, the associated community and their descendants of their right to maintain their traditional practices of hunting and fishing on treaty lands, save for areas that may be 'taken up' for colonial purposes. The Harvesting Clause reads:
"...they, the said Indians, shall have the right to pursue their 
avocations of hunting and fishing throughout the said tract surrendered 
as hereinbefore described... and saving and excepting such tracts as 
may, from time to time, be required or taken up for settlement, mining, 
lumbering or other purposes by Her said Government of the Dominion of 
Canada, or by any of the subjects thereof, duly authorized therefor by 
the said Government." (13) (Emphasis added).


The plaintiff's argument, supported at the trial level (14) but ultimately rejected by the Ontario Court of Appeal ("ONCA") and the Supreme Court of Canada ("SCC"), hinged on the Treaty 3 Ojibwe signatories' understanding that the reference to the Dominion was a reference to the government of Canada specifically. The Aboriginal community was bargaining with the government of Canada, not the government of Ontario; consequently, the province did not have authority to 'take up' lands under the treaty. It was the plaintiff's position that any 'taking up' of lands within the treaty area requires the involvement of and authorization from the federal government. (15) Treaty rights are constitutionally protected under s. 35(1) (16) and "[o]nly the federal government, the government specifically charged with their welfare under the Constitution, had jurisdiction in 1873 and has jurisdiction today to limit... these Rights." (17)

At each judicial level of the proceeding, the courts did not disagree that on its plain meaning the Ojibwe predecessors of the Grassy Narrows First Nation entered into Treaty 3 with the government of Canada. (18) It logically follows that the Ojibwe understood they were bargaining with the government of Canada, not that of Ontario. This position is supported by the trial judge's findings of fact in Keewatin v. Ontario (Minister of Natural Resources), 2011 ONSC 4801 (19) and was not specifically disputed nor overturned at the higher courts on appeal. Nevertheless, the Keewatin argument failed because the Ojibwe's understanding was found to be immaterial to the legal functioning of federalism. (20)

The Ontario Court of Appeal found that "[t]he harvesting clause has to be interpreted within the constitutional framework established by the Constitution Act, 1867, the case law elaborating those provisions, and other relevant constitutional principles (21) - a finding supported by the Supreme Court of Canada. "[A] lthough Treaty 3 was negotiated by the federal government, it is an agreement between the Ojibway [sic] and the Crown. The level of government that exercises or performs the rights and obligations under the treaty is determined by the division of powers in the Constitution." (22)

Under the federalist regime, both the provincial and Dominion governments are circumscribed by the unitary nature of the Crown; therefore, the Ojibwe were legally found to be bargaining with the Crown, not with any particular head of government. The authority for 'taking up' treaty lands flowed to the province once those lands were legislatively extended to provincial jurisdiction in 1912. This rendered resource exploitation and management as represented by sections 92(5), 92A and 109 of the Constitution Act, 1867 (23) applicable to the Keewatin area under treaty 3. (24)

The ONCA and SCC decisions were premised largely on authority flowing from St. Catharines Milling and Lumber Co. v. R. (25) ("St. Catharines") Although the dispute at the centre of St. Catharines did not involve an Aboriginal claimant, the finding of the Privy Council was instrumental in establishing constitutional repercussions on treaty land. That case involved the same Treaty 3 land area as referenced earlier, the beneficial interest in which was disputed prior to 1912 between the governments of Canada and Ontario. The government of Canada issued timber licenses to a lumber company so that it might harvest one million feet of lumber from that land. The government of Ontario sought an injunction and damages against the company, declaring that the company had not received lawful authority for so harvesting. The question to be answered was which head of government had beneficial interest in the treaty-ceded land and consequently the right to regulate the issuance of licenses for harvesting timber.

In St. Catharines, the Privy Council began its discussion by interpreting the Royal Proclamation of 1763, which followed shortly after the Treaty of Paris marking the beginning of Britain's European supremacy over North American colonization. The text of the Royal Proclamation includes principles for coexistence with the First Nation peoples, (26) stating, among other things, that all land not within the limits of European government at the time is reserved for the exclusive use of the Indians. (27) Although some contemporary scholars interpret the relevant provisions in the document as a recognition of continued Aboriginal title to unceded lands, (28) the Privy Council held the document to indicate that, while the Indians enjoyed a usufructory right to the land, the lands were nevertheless parts of the Dominion, vesting in the Crown a paramount estate. (29) Between the enactment of the Royal Proclamation and that of the Constitution Act, 1867 (British North America Act), which created the federal government, British colonization grew, and what would be known as Treaty 3 lands had been deemed situated within various provincial borders. (30) While beneficial interest in the land flowed to the provincial incarnations as they varied, the legal title remained with the Sovereign or Crown. (31) The onset of federalism brought the division of powers. This, according to the Privy Council, simply defines the level of government responsible for the enumerated head and which enjoys beneficial interest to property described therein. (32) Simply put, dealings with any head of government are de jure and de facto dealings with the Crown when viewed from within the perspective of the Constitution. Following the doctrine articulated in St. Catharines, the SCC ruled that constitutional federalism allows the passing of beneficial interest between heads of government, as these heads are simply prongs extending from the unitary concept of the Crown.

I THE DEFEATED KEEWATIN ARGUMENT IN CONTRAST TO THE ARGUMENT THAT FOLLOWS

The defeated Keewatin argument accepts the validity of Treaty 3 but relies on the Ontario government having no independent authority to claim rights therein because it is not party to the agreement. The argument fails because the onus is upon the plaintiff to prove the province is not a party. The province needed only to look internally to the same framework of federalism that brought the province into existence in order to validate its rights and defeat the Keewatin argument.

The distinctions between the argument that follows and the defeated argument are (a) the assertion of a void agreement as opposed to a valid agreement, and (b) the effect that reliance on contract law rather than constitutional law has on the perspective from which the issues must be viewed. I will demonstrate that Treaty 3 may be treated as a contract and is void in regard to the Keewatin lands because of a unilateral or mutual mistake of identity, material to the terms of the contract. The mistake precipitated from negligent or fraudulent misrepresentation on behalf of the Crown through its agent(s). Similar to the defeated Keewatin argument, the argument that follows relies on the Ojibwe signatories' belief that they were bargaining exclusively with the Dominion government; however, rather than focusing on the Crown's self-perception, the Court must necessarily shift to the position of a reasonable third party observer. This shift has the added benefit of compelling the Court's stricter adherence to the canons of treaty interpretation. (33)

The opportunities presented through the use of contract law to interpret treaties between European governments and First Nations peoples are not without paradox. A fulsome critical analysis of this method is beyond the scope of this paper; nevertheless, I will address some of the issues most idiosyncratic to the Grassy Narrows case. At the highest level, importing and relying exclusively on Eurocentric common law negates the significance of Indigenous legal orders and further legitimizes the supremacy of the Crown. This may be particularly undesirable from a First Nation perspective in a contemporary setting when recognition of Aboriginal legal orders is gaining traction in Canadian government (34) and jurisprudence. (35) Related to this concern is the common law assumption that in order for contacts to hold validity, they must be entered into between parties of similar bargaining power lest undue influence coerce the weaker party into consent. (36) Arguing the nullity of a contract based on the vast dissimilarities between Indigenous and European cultures may lead to presumptions of unconsionability or duress on the part of the Crown, promoting racialized notions that Indigenous communities are inferior, weak and without agency. Furthermore, the strict application of contract law may lead to a perceived reduction in the enhanced solemnity that treaties ostensibly enjoy relative to commercial contracts, improperly placing treaties in the realm of commercial transactions or conveyances. This concern appears to be at the heart of cautionary statements by Canadian courts regarding the strict use of contract law in treaty interpretation. (37) These statements are referenced in greater detail further in this paper.

Still, common law provides effective mechanisms that may provide immediate remedy while deeper issues are debated on the legal, social and academic stages. Principles that orbit the common law of contracts frequently dovetail with principles of treaty interpretation. For instance, lack of agency and bargaining power may not have been a component of Treaty 3 negotiations (38) but the successful admission of parole evidence was instrumental at the trial level. (39) Although such evidence might be derived from official and unofficial written documents penned by Europeans, it becomes an increasingly powerful tool for the Indigenous litigant since the recent judicial acceptance of at least some means of Indigenous oral traditions as evidence. (40) The solemnity of treaties need not be ignored nor must racialized stereotypes necessarily arise simply because contract law is applied. Many rules embedded in the common law of contracts recognize issues that may arise between contracting parties that are analogous to the misapprehensions and ambiguities that may arise from cultural differences; mistake, ambiguity and misrepresentation are among those, as is the thrust of the argument advanced in this paper.

At its nucleus, contract law is premised on mutuality and a meeting of the minds (41) through reasonably precise and complete terms. (42) By situating these discussions within contract law, each party's idiosyncratic perspective is given voice. When considered strictly through a constitutional law lens, each party's perspective is overshadowed by the formalities of federalism. Not only is the Aboriginal litigant's situational understanding eclipsed by the overriding concerns of federalism, as was the case with the Keewatin proceeding, but so might be the federal and provincial players in the federalist regime. (43)

II ANALYSIS OF THE LAW

In the following section, I will examine the state of the law in relation to: (a) the applicability of contract law to Aboriginal treaty interpretation, (b) the doctrine of mistake in contract law, (c) the concept of ambiguity as it applies to contracts, and (d) misrepresentation.

I. APPLICABILITY OF CONTRACT LAW TO TREATY INTERPRETATION IN CANADA

The first necessary step in my argument is establishing that contract law can be applied to treaty interpretation. Arguments to the contrary are easily defeated.

Beattie v. R. (44) ("Beattie") advances the most ardent commentary suggesting that contract law cannot be applied to treaties. In Beattie, the plaintiff was the assignee of treaty annuity rights by ten assignors who were descendants of Treaty 6 and 11 adherents. The Department of Indian Affairs and Northern Development found that the assignors were entitled to the annuity payments under the respective treaties, (45) but the Federal Court held that the Crown debt was not assignable. This finding was based on provisions within the Financial Administration Act, RSC 1985, c F-11 ("FAA"), which governs the assignment of Crown debts. Read together, provisions under the Act prohibit the assignment of Crown debts unless it is an amount due under a contract. (46) The Court found that the treaty was not analogous to a contract. (47) Moreover in obiter, Lafreniere (Prothonotary) noted that, "the Supreme Court of Canada has held that a treaty is not a commercial contract, and that contract principles do not apply to treaties." (48) The paragraph containing this statement was favourably cited in the appeal that affirmed the decision. (49)

The Beattie argument fails in two ways. First, in Beattie treaties were found dissimilar to contracts specifically with respect to the FAA. In the FAA, the words "treaty" and "contract" are used separately within the definition of "public money". (50) Conventions of statutory construction dictate that the two words must have different intended meanings within that statute. However, this does not necessarily mean the words have different meanings in all circumstances. Second, Lafreniere references three cases within the Beattie decision to support the claim that contract principles do not apply. These are: (1) Sundown, (2) Benoit, and (3) Hay River.51 When read in context, these references support the argument that contracts and treaties may be regarded similarly. (1) In Sundown, the reference to treaties follows an excerpt from R. v. Badger, [1996] 1 SCR 771 at para 41, in which Sopinka J. recognizes the solemnity of treaties. The Court in Sundown continues: "Treaties may appear to be no more than contracts. Yet they are far more." (52) This statement indicates that instead of being contrary to contracts, treaties are at least equal to contracts. (2) Lafreniere's references to Benoit ultimately fall on the same paragraph in Sundown, (53) and also refer to the SCC's seventh principle of treaty interpretation as articulated in Marshall v. Canada, [1999] 3 SCR 456 at para 78. This principle states that a technical or contractual interpretation of treaty wording should be avoided. This does not mean that the fundamental principles of contract construction are misplaced when applied to a treaty. What's more, read in context with the remaining principles, the seventh principle indicates that terms within a treaty should not be strictly interpreted to the detriment of the Aboriginal party, due to the lack of familiarity Indigenous cultures had with colonial legal procedures and the written text. This view is foreshadowed by the minority position in R. v. Horseman, also referenced within Benoit: "treaties must be given the effect the signatories obviously intended them to have at the time they were entered into... [A treaty should not] be undermined by the application of the interpretive rules we apply today to contracts entered into by parties of equal bargaining power." (54) (3) Finally, Lafreniere refers to Hay River. In that decision, Mohoney J. states that a treaty is not "an executive act of two or more sovereign states. Neither, however, is it simply a contract between those who actually subscribe to it." (55) Rather than declaring that treaties are barred from the contract analogy, this statement suggests treaties differ from contracts only in their level of straightforwardness. Treaties are more solemn and inter-culturally complex than a standard commercial treaty. Like the Sundown citation, this implies that treaties are less mundane than, and therefore at least equal to, contracts.

Treaties have the basic necessary characteristics of a contract. As Mahoney states in Hay River, treaties impose and confer continuing obligations and rights upon the signatories.56 This is a sentiment echoed by Binnie J. in Mikisew when he referred to the respective obligations and rights of the bargaining parties, and the requirement for performance in Treaty 8. (57) Treaties include offer, acceptance and consideration. These are all terms applied to contracts.

In summary, I maintain that any bar to applying common law contract principles to treaties applies only where expressly or implicitly legislatively specified. Further, cautionary statements against applying contract law to treaty interpretation are meant only to protect Aboriginal claimants from the strict application of contractual wording, due to the cultural discordance between the bargaining parties. Consequently, general principles of contract law may be applied to the factual circumstances of Treaty 3.

II. DOCTRINE OF MISTAKE

i. Requirement to interfere with intention to contract at common law

In order for a contract to be legally enforceable, the parties involved must willingly and knowingly agree to essential terms. (58) "The first and most essential element of an agreement is the consent of the parties. There must be the meeting of two minds in one and the same intention, known as consensus ad idem. "A mistake [or] erroneous belief... may prevent the mutuality of agreement that is necessary for the formation of a contract." (59) Even when a contract has been entered under a mistake, courts face a legal tension between finding a contract void, and holding parties to their commitments. Much depends on the type and magnitude of the mistake. Common law requires that a mistake go to the essential terms of the alleged contract in order for the mistake to prevent the formation of the contract, (60) otherwise courts may find the mistake justifies a remedy in equity but maintain the validity of the agreement. (61 This distinction is best explained by English courts' differentiation between the intention to contract and the motive for contracting. (62) Only a mistake affecting the former allows for the party claiming mistake to avoid the contract at common law. Canadian courts have followed this English development. (63) A contract that is void at common law cannot draw upon a remedy in equity, such as rescission or damages, because where a contract does not exist, there is nothing to which equity can attach. (64) Simply stated, in order for the proposed argument in this manuscript to succeed, the claimed mistake must be fundamental to the intention to contract, such that the contract is declared void ab initio at common law, thereby avoiding a remedy in equity.

ii. Common, mutual and unilateral mistake

In Ghitter, Fraser C.J. outlines three types of mistake: common, mutual, and unilateral. (65) Common mistake occurs when both parties make the same mistake. Mutual mistake occurs when each party is mistaken, but their respective mistakes differ. Unilateral mistake occurs when one party holds an erroneous belief and the other party is aware of this. If the other party is unaware, the mistake is considered mutual. With common mistake, an agreement may still exist; there is a mistake about term(s) within the contract but because the parties share the same misapprehension, there has been a consensus ad idem. But in the case of both mutual and unilateral mistake, there stands an opportunity to argue that no contract exists due to a lack of meeting of the minds. The test for determining the existence of a valid contract notwithstanding mutual mistake is an objective one (66) and requires determining: (1) if there is a mistake, (2) if yes, on an objective basis, are the parties ad idem notwithstanding the mistake, and (3) if no, is the mistake fundamental. (67) If the mistake is fundamental, the contract is void or voidable. (68) If the terms of the contract contain ambiguity, "no objectively ascertained agreement can be inferred or concluded." (69) Ambiguity is briefly discussed below and may play a critical role in my argument as it applies to Treaty 3 interpretation.

In the case of unilateral mistake, equity suggests that if the unmistaken party is aware or ought to be aware of the mistaken party's misunderstanding, the unmistaken party may not take advantage of the error and the agreement may not be enforceable. (70) If the unmistaken party is unaware, the complainant's argument for voidability is weaker. (71) Consequently, the strongest arguments to advance are of mutual mistake, where the Crown and Ojibwe intend unique terms, or unilateral mistake where the Ojibwe were under a misapprehension precipitated by Alexander Morris as its agent.

iii. Mistake of identity

A subset of mistake is mistake of identity. If one party believes it is contracting with a particular party but is mistaken in that belief, the contract is voidable, (72) although in Lewis v. Averay, Lord Denning contradicted this principle. (73) The controversy stems from whether the mistake arises from the mere identity of the intending party or the specific attributes embodied by that party. In Canada, "subtle as the distinction may be, it is part of the law." (74) Although there may be a meeting of the minds regarding the terms of performance of the contract, the identity of the other party may be of fundamental importance to the contracting party. If so, the contract may be rendered void. (75) The test for establishing mistake of identity is to show: (1) that the plaintiff intended to bargain with someone other than the party with whom it bargained and (2) that the plaintiff regarded the identity of the contracting party as crucial to offer and acceptance. (76) A third component to this test, that the other party was aware that the plaintiff did not intend to bargain with it, strengthens a claim by adding the element of misrepresentation. (77)

III. AMBIGUITY IN CONTRACTUAL TERMS

Ambiguity in contract law is a condition that occurs when each party is certain what it is fundamentally contracting for, but did not precisely or clearly express this when the agreement was reduced to writing. (78) Ambiguities are terms that can reasonably be held to two or more meanings. (79) It is distinguishable from inaccuracy, which occurs when the oral terms of an agreement are incorrectly reduced to writing. (80) "At times an ambiguity will produce such a measure of uncertainty as to the subject-matter of the contract or as to other vital terms that the Court must hold that there is no enforceable contract." (81) Whether a contract allegedly contains ambiguity or inaccuracy, the terms agreed on must be clear, certain and stated with reasonable specificity. (82)

Contra proferentem is a mechanism potentially employed by the courts in cases of ambiguity whereby the meaning of the impugned provision is construed against the drafter. (83) In Ironside, Fruman J. cautions that contra proferentem should not be employed unless the non-drafting party had no meaningful negotiating ability. However, this obiter is positioned with respect to modern commercial transactions. He further specifies that the mechanism should not be used unless the non-drafting party had no opportunity to "participate in the negotiation of the instrument." (84) In the case of treaties, the instrument is the written document. Although Aboriginal parties likely had power in the actual negotiations, (85) they had disparate power in creating, editing or clarifying the written instrument due to the unfamiliar nature of such communication. Furthermore, Indigenous peoples may have relied extensively on undocumented oral statements and warranties. Together, these factors might hamper the de facto negotiating ability of the Aboriginal party because of a lack of certainty their stipulations were adequately reflected in the written instrument.

A finding of ambiguity is not essential to the argument advanced in this manuscript. Nor is the use of contra proferentem if ambiguity is found. The application of these common law principles simplifies concluding that the federal government is the contracting party. If not employed, the argument of misrepresentation remains available in the complainant's arsenal.

IV. NEGLIGENT AND FRAUDULENT MISREPRESENTATION IN CONTRACTS

There are three forms of misrepresentation that pertain to contracts at common law, each of which is a false statement that has the effect of inducing a party into a contract: innocent, negligent, and fraudulent. (86) The test for negligent misrepresentation requires five components: (1) a duty of care must exist toward the representee on behalf of the representor based on a special relationship, (2) the representation in question must be untrue, inaccurate, or misleading; (3) the representor must have acted negligently in making the representation; (4) the representee must have reasonably relied on the alleged misrepresentation; and (5) the reliance must have been detrimental to the representee in the sense that damages resulted. (87) Because a duty of care must exist between the parties, the applicable standard of care required by the representor to discharge that duty "... is an objective one. It is a duty to exercise such reasonable care as the circumstances require to ensure that representations made are accurate and not misleading..." (88) In the leading authority on negligent misrepresentation, Lord Denning states:
"...if a man, who has or professes to have special knowledge or skill,
makes a representation by virtue thereof to another be it advice, 
information or opinion - with the intention of inducing him to enter 
into a contract with him, he is under a duty to use reasonable care to 
see that the representation is correct, and that the advice, 
information or opinion is reliable. If he negligently gives unsound 
advice or misleading information or expresses an erroneous opinion, and 
thereby induces the other side into a contract with him, he is liable 
in damages..." (89)


Misrepresentation of any form is grounds for rescission of the contract, provided the matter misrepresented is material; (90) however, rescission is a remedy in equity, not at common law. For the argument advanced in this manuscript to succeed, the treaty must be voidable at common law. Generally, whereas innocent and negligent misrepresentation may give rise to an action in tort and subsequent equitable remedy, (91)only fraudulent misrepresentation entitles an innocent party to avoid a contract at common law. (92) In any case, in order to attract remedy, the misrepresentation must constitute a term of the contract. (93)

Typically, fraudulent misrepresentation requires a positive statement meant to deceive, (94) but in certain circumstances non-disclosure may fall within the ambit of fraud. "The duty to disclose, and not remain silent, arises in contracts uberrimae fidei, that is, where the parties must show the utmost good faith towards each other." (95) Transactions involving fiduciary relationships are captured by this principle. (96)

The thrust of the argument advanced in this manuscript is that of mistake; therefore, it is less important whether the misrepresentation is negligent or fraudulent. A finding of fraudulent misrepresentation itself, based on non-disclosure of vital information by Alexander Morris as an agent of the Crown, may lead to the voidability of the treaty. But a finding of negligent misrepresentation may assist in an equal result. As Waddams suggests, where the claim is one of mistake the case for relief is strengthened by the presence of the misrepresentation regardless of its form. (97)

III APPLICATION OF THE LAW TO THE FACTS

At the time of signing Treaty 3, the Ojibwe predecessors of the Grassy Narrows First Nation, intending to bind the community and its descendants in perpetuity to the rights and obligation therein, were under a misapprehension as to the identity of the party with whom they were bargaining. The mistake, whether one of identity specifically, or of mutual or unilateral nature, is fundamental to the terms of the contract. Furthermore, the mistake was the result of fraudulent (or negligent in the alternative) misrepresentation by the agents of the Crown, which led to ambiguous terminology within the treaty instrument to the detriment of the Indigenous community. The Treaty must be declared void.

I. THE APPLICATION OF CONTRACT LAW TO THE INTERPRETATION OF TREATY 3

At minimum, a treaty is a contract (98) with all the rights and obligations that flow therefrom. (99) There is no dispositive bar to applying the principles of contract law to the terms of treaties between the Aboriginal peoples of Canada and the heads of government, so long as that application recognizes the cultural dissimilarities between the signatories, the natural imbalance that flows from the use of the written instrument and the solemnity of treaties that distinguish them from strict commercial interactions. It cannot necessarily be said that the parties to a treaty always had unequal bargaining power during negotiations, but it is true that the Crown's fiduciary obligation toward Aboriginal peoples (100) and linguistic and cultural differences (101) must be recognized when such negotiations are manifest in a written legalistic instrument preferred by European law. Like a contract, a treaty is only evidence of an agreement. The actual agreement may need to be gleaned therefrom. Because of the unique conditions under which treaties were made, the SCC has established a set of non-exhaustive principles for interpreting treaties.102 These are reproduced in the Appendix. Treaties depart from contracts only in that their reasonable interpretation requires a more liberal approach and an historical sensitivity to the Aboriginal participant. Like the contra proferentem mechanism discussed above, this recognition does not create an interpretative imbalance relative to the parties, but rather a rebalancing. It recognizes the structural cultural dissimilarities under which the treaty was enacted and drafted, and compensates at the present interpretive stage. It is for this reason that the interpretive principles articulated in Marshall justifiably inform the treaty at hand when applying contract law.

II. THE DOCTRINE OF MISTAKE IN THE CURRENT CASE

The Ojibwe believed they were bargaining with Canada. More specifically, they believed they were bargaining with the government of the Queen which existed in Canada through the government in Ottawa, and which had the defining characteristics of an honorable ally that would protect Ojibwe rights and provide economic opportunities.

This position is strongly supported by evidence and the trial judge's findings of fact in Keewatin v. Ontario (Minister of Natural Resources) (103) and was not specifically overturned at the higher court levels at appeal. Instead, what was overturned was the trial judge's finding that, because the contract was between the Ojibwe and Canada, 'taking up' lands required a two-stage process that included federal government approval. (104) The higher courts found that notwithstanding the belief by the Ojibwe that their bargaining partner was Canada; the unitary nature of the Crown under the mechanism of federalism permitted the Crown to pass beneficial interest and administrative authority to the province. McLachlin C.J. states, "although Treaty 3 was negotiated by the federal government, it is an agreement between the Ojibway and the Crown. The level of government that exercises or performs the rights and obligations under the treaty is determined by the division of powers in the Constitution." (105)

While this conclusion may logically flow from the application of constitutional law, under contract law the material terms of the contract, including identity of the contracting parties and the characteristics embodied therein, are critical to establishing a consensus ad idem and the forming of an enforceable agreement. Furthermore, if one accepts the federalist position that the Crown transferred the obligations and rights of Treaty 3 to the province, this is analogous to an assignment, the validity of which is dependent on the consent of the contracting parties. Consent may be dependent on the identity of those involved. As stated by the Exchequer Court in an early case involving the unilateral assignment by a private company of its contractual obligations to the government: "Any one letting a contract for work has a right to prescribe against an assignment or sub-letting of it without the consent of the party so prescribing - many reasons may actuate such a party. He may have confidence in particular persons capable and willing to perform the work contracted for..." (106) It is immaterial whether the unauthorized assignee is qualified or has fundamentally similar characteristics to the intended contracted party. (107) Consequently, the province's argument that it is as capable as the federal government of fulfilling treaty obligations (108) by adhering to the Sparrow (109) standards is moot.

The onus is upon the plaintiff to prove mistake. The quantum of proof is objective. The Court must decide if a sensible third party would construe the agreement to be what A or what B understood it to mean, and if there is a misunderstanding, whether the mistake is fundamental to the agreement such that it prevent a consensus ad idem. (110) This threshold is achievable by drawing upon the trial judge's findings that the Ojibwe believed they were bargaining with the government of Canada, (111) that the Ojibwe intended to deal exclusively with that government, and that the Ojibwe were unfamiliar with top-down authority models and had no functional concept of the multiple emanations or the indivisibility of the Crown. (112)

The fact that a reasonable or sensible person would regard these government emanations as separate individuals is further supported in Canada v. Ontario. (113) This case was heard in 1909 in preparation for the 1912 Act that extended Ontario's borders over the Keewatin lands. (114) The Canadian government sought indemnity from Ontario for costs associated with negotiating and maintaining Treaty 3. Recognizing the technical complexities of federalism, Idlington J. suggested the benefit of conceptualizing heads of government as individual entities.
"I might add that having regard to the possible technical difficulty 
arising from each power representing or being represented by the same 
Crown when we come to work out the statutes assigning this 
jurisdiction and seek for the law applicable, we may well assume and 
hold it to have been designed by each enacting power to treat each 
actor, Dominion and province, as a separate and independent legal 
entity, capable of legal relations..." (115)


With regard to mistake in identity specifically, the test requires (1) that the plaintiff intended to bargain with someone other than the party with whom it bargained, (2) that the other party was aware that the plaintiff did not intend to bargain with it, and (3) that the plaintiff regarded the identity of the contracting party as crucial to offer and acceptance. (116) I have established the presence of the first and third components in the above discussion. The second component is established as follows. It is clear from unanimous expert opinions at trial, and the trial judge's findings that the Commissioners who negotiated the treaty as agents of the Crown intended for the Ojibwe to understand they were bargaining with Canada. (117) "The Ojibwe... were determined to ascertain the power of the entity with which they were dealing", (118) and there were good reasons for Dawson and Morris to promote the more distant, centralized Dominion government over the local interests of the province. First, by drawing an analogy between a council that presides over a great dominion, Morris might draw more relatable analogy to a council similar to that of Indigenous cultures. (119) Second, the treaty Commissioners were aware of the importance of protecting the Indians' minority and harvesting rights and that these protections were better served though the government of Canada. (120) Third, the integrated reference by the Commissioners to the Queen and the government of the Dominion suggest a recognition by all the parties of the respectful mutualistic tenor of the Royal Proclamation of 1763 that existed between Aboriginals and the distant colonial monarch (121) - one which more easily facilitated the completion of the treaty for the British. The Commissioners were cognizant of the utility of promoting this incarnation of government. It logically flows therefrom that the Ojibwe would not easily, if at all, entered an agreement with the more localized provincial government, especially since the Ojibwe had no pressing need to bargain at all. (122)

Findings held at the trial level, joined with interpretations of seminal historic agreements between Indigenous peoples and Europeans, support the significance of the Ojibwe intention to bargain with the distant Dominion government as opposed to the local provincial. (123) In her summary, Sanderson J. wrote, "[The Ojibwe] were relying on Canada/the Queen's Government at Ottawa to implement and enforce the promises. The relationship with the Queen's Government at Ottawa was important to the Ojibway." (124) The text of the Royal Proclamation, 1763 supports this reasoning. The document refers to Indigenous populations as nations with whom the British Crown is connected and which benefit from the protection of the British government. (125) Lands outside of the colonial borders established by the proclamation are explicitly reserved for the Indians, and provinces are disallowed from extending their borders without authority granted by the British Crown. (126) Settlers are forbidden from purchasing land from the Indians and those who have populated areas outside the established borders are entreated to abandon their settlements. (127) In the proclamation, the British government acknowledges that "great Frauds and Abuses have been committed in purchasing Lands of the Indians, to the great Prejudice of our Interests and to the great Dissatisfaction of the said Indians" (emphasis added), and that the proclamation is meant to rectify past injustices and convince the Indigenous peoples of the integrity of the British Crown". (128) Together, the intent and assurances indicated by the British Crown, echoed in the words of Alexander Morris, support the Ojibwe understanding that the further threat of falling prey to local interests would be mitigated and rectified by dealing with the distant government, who considered the Indigenous tribes to be equal as nations - "governments in their own backyard would not have authority over them." (129) A similar indication that dealings with Aboriginal peoples would be mediated by the Crown in Great Britain reverberated in the text of the Treaty of Niagara, 1764. Members from 24 Indigenous nations attended the congress at which the treaty was signed as ambassadors of their communities.

At trial, it was established that the Ojibwe were dealing with the Queen whose authority resided in Ottawa. (130) The fact that the situs of Dominion and provincial government power were not as comparably distant as was the Queen's in Great Britain, and therefore potentially invulnerable to an appreciable conceptual distinction, does not detract from the local/distant argument. (131) Such an assumption would place too literal an understanding in the minds of the Indigenous peoples of where the decision making power of a government resides. Whereas the indivisibility of the Crown was an unfamiliar concept, (132) the concept of agency was not. This is evidenced by the fact that the Ojibwe understood the Dominion government to embody the quality of centrality rather than localization (133) and that Ottawa acted the same as the Queen (134) by way of a "government that was homologous to one of their own councils." (135) It was also accepted at trial that during negotiations Morris had analogized his own authority as an agent of the Queen to an Indigenous context and the Ojibwe would have conceptually understood this. (136) Together, this supports the contention that the local/distant argument relies on the distinct powers and attributes of the government to a greater degree than on literal geographic location.

It was also accepted at trial that the Ojibwe were unaware of the Ontario government (137) at the time of the treaty signing; therefore, it is difficult to speculate on how the treaty negotiations might have progressed if not for the misrepresentation and subsequent mistake of identity. The Ojibwe had abandoned treaty negotiations twice prior to the 1873 signing, suggesting they were determined to establish fair dealings. At the same time Crown representatives expressed frustration over the delays. Had the Ojibwe understood that Ontario might be authorized to implement the taking up clause, perhaps negotiations would have stalled again until after the province had annexed the land in 1912. Perhaps then, the material terms of the treaty would have been more clearly laid out by the Crown. At the end of the day, for the remedies associated with mistake of identity or negligent misrepresentation to apply, the aggrieved party need not speculate as to the identity or characteristics of the party with whom it did not intend to bargain, as that would lead to the untenable requirement to speculate infinite possibilities. The aggrieved party need only indicate that the attributes of the intended party were material to the contract.

III. AMBIGUITY AS IT APPLIES TO THIS CASE

The ONCA rejected the trial judge's findings that the harvesting clause was ambiguous. (138) But the ONCA's rejection of ambiguity is founded on its contemporary understanding of constitutional law, rather than viewed objectively from outside the contract. From a constitutional lens, there is no ambiguity because federalism allocates responsibilities of a unitary Crown to various heads of government. The ONCA finds that the taking up clause bestows the right to one level of government and that beneficial ownership and legal authority is derived from the constitution, not from the treaty. But under contract law, ambiguity is a condition that occurs when the relative parties were certain what they were fundamentally contracting for, but did not precisely or clearly expresses this understanding when the agreement was reduced to writing. (139) In the argument advanced in this manuscript, the Grassy Narrows First Nation does not dispute what was bargained for, but instead with whom it was bargained. Since the phrase "Her Government of Her Dominion of Canada" (140) appears to be capable of more than one meaning, it must be ambiguous. If so, contra proferentem, supported by the second treaty interpretation principle from Marshall (141) must lead to the conclusion that the clause refers uniquely to the government of Canada. Alternatively, if contra proferentum is not applied, then the clause remains ambiguous and, being a material term, no consensus ad idem exists.

If the taking up clause is not ambiguous, it cannot be reasonably capable of more than one meaning. In such a case, the court must make an objective assessment of what a reasonable third party would infer from the words and conduct of the parties. (142) The trial judge's findings support the objective view that the Ojibwe intended to contract with Canada. The Crown disagrees. If the evidence is so conflicting that no common meaning can be found without engaging in speculation, the court must find that no contract has been created. (143)

If the words are inaccurate, this provides strong support for the Aboriginal plaintiff invoking the doctrine of mistake and claiming negligent or fraudulent misrepresentation.

IV. NEGLIGENT AND FRAUDULENT MISREPRESENTATION

In the case at hand, the essential elements of negligent misrepresentation are present. (1) By its own insistence, a duty of care exists on the part of the government towards Aboriginal peoples. The special relationship is fiduciary, (144) which imposes such a duty of care. (145) In any case, it is a settled point of law "that if someone possessed of a special skill undertakes, quite irrespective of contract, to apply that skill for the assistance of another person who relies on such skill, a duty of care will arise." (146) There need only be any kind of relationship that is equivalent to contract even in the absence of consideration. (147) (2) The Crown maintains that the inaccurate representation made by the Commissioners was outside their authority. (148) In any case, the inaccuracy or ambiguity is established in section (c) immediately above. (3) The Ojibwe relied on the alleged misrepresentation as found by the trial judge on the facts. (149) (4) The reliance has been detrimental to the Grassy Narrows First Nation descendants of the Ojibwe as evidenced by the incursion on harvesting rights. Finally, the agents did not discharge their duty of care. Alexander Morris was a trained constitutional lawyer, was aware of the complexities and challenges of developing the Canadian nation, was aware of the boundary disputes and issues that might flow therefrom, and was closely connected to John A. MacDonald, both of whom, along with Simon Dawson, were staunch centralists, preferring a model where the Dominion government was superior to the provinces. (150) Furthermore, "Morris knew that a number of the Fathers of Confederation... were of the view that one of the federal government's functions was to protect individual and minority rights against arbitrary acts of local governments." (151) This was best achieved for Indigenous communities by placing matters relating to their welfare in the hands of the conceptually more distant government. (152) The Ojibwe relied on the information and reassurances presented by these Commissioners, which were unauthorized under constitutional law (153) notwithstanding their ostensible and actual authority as agents of the Crown.

The Crown, as a self-proclaimed fiduciary to the Indigenous peoples, may be guilty of fraudulent misrepresentation through the ostensible authority of its agent - not through the positive statements made by Morris, but rather through his non-disclosure of the ongoing boundary dispute between the province and the Dominion, and the constitutional ramification that would inevitably flow therefrom. Morris was a constitutional lawyer. The trial judge found that he "deliberately tailored the wording of the harvesting clause to ensure that the Government of the Dominion of Canada could maintain a protective role." (154) As supported throughout this paper, this specific finding was not overturned on appeal. His non-disclosure of that vital information negated the opportunity for the Ojibwe to further question the terms of the treaty and secure their desired position in relation to the decentralized Dominion government.

IV THE SUBSEQUENT PROCEEDING ON ESTABLISHING ABORIGINAL TITLE

The fact that the British government sought to negotiate a treaty with the Ojibwe at all in 1873 supports a prima facie recognition that the Indigenous group occupied the treatied land; however, the acknowledgment that sprung from a colonial regime eager to establish a connective railroad does not necessarily equal the test for title established in contemporary Canadian jurisprudence. Once the treaty is void or rescinded, the Grassy Narrows First Nation must embark on the mission of establishing the requisite indicia of their sufficient, continuous and exclusive occupation of the land at the time of assertion of European sovereignty to establish title. (155) The evidence presented at trial was not directed to this matter; therefore, a fulsome discussion of this topic is beyond the scope of this case comment. Still, assuming that British sovereignty was asserted over North America in 1763 as part of the Treaty of Paris, the Grassy Narrows First Nation must use this date as a benchmark before which their ancestors occupied the disputed land to the required threshold. (156)

Treaty 3 encompasses an area of 55,000 square miles (21,250 km2), far greater than the 750 square miles (1900 km2) successfully claimed in Tsilhqot'in, yet less remote. Establishing sufficiency of occupation will depend on the specificity of the Grassy Narrows claim; that is, whether claiming the entire treaty is void, or limiting a claim to the Keewatin area of which the Ojibwe ancestors were signatories. "Sufficiency of occupation is a context-specific inquiry" (157) whereby "one must take into account the group's size, manner of life, material resources, and technological abilities, and the character of the lands claimed" (158) Essentially, the group must show that the area of land claimed was necessary to support the Indigenous population, and that the group's actions with regard to that land indicated an intent of exclusive stewardship.

Establishing continuity of occupation requires that the Aboriginal claimant show the group occupied the disputed area prior to sovereignty. (159) In other words, in order for the court to accept that the Aboriginal group occupied said lands prior to 1763, they must prove that the situs of their current occupation is not the result of the mechanics of sovereignty. A negative example of this might be the Inuit relocations where the resulting geographic location of an Aboriginal group is the result of legislation. (160) In that case, there would be no continuity between their occupational situs at the current location and the land of their pre-sovereignty occupation. Clearly, the Ojibwe were acknowledged to occupy the Keewatin lands at the signing of Treaty 3 in 1873. The claimants would have to prove a reasonable continuity of occupation of the land for a gap of about one hundred years.

Finally, exclusivity of occupation is understood as the intention and capacity to control the land as deduced from both an Aboriginal and common law perspective taking into account the characteristics of the society. (161) Exclusivity from a common law perspective implies the fee simple owner has recourse to the remedies associated with trespass, but from an Aboriginal lens it may mean that other groups were allowed to access the land subject to permission from a primary claimant group. The history of European colonization in the Keewatin area suggests at first blush the incursion of settlers would not bar a claim to exclusivity. To the contrary, the fact that the British so actively sought a treaty with the Ojibwe to expedite a railway lends credence to the stance that the Indigenous peoples claimed exclusivity in the sui generis manner recognized by the courts.

V CONCLUSION

Treaty 3 must be rescinded with respect to the Keewatin region of the Grassy Narrows First Nation. The treaty is synonymous with a contract; therefore common laws of contract must apply to its construction and interpretation. In fact, because it is more solemn than a conventional commercial contract, and engages the honor of the Crown, there must be every avoidance of actual or perceived sharp dealing by the Crown as fiduciary. The Ojibwe signatories believed they were bargaining exclusively with the government of Canada. This belief was material to their acceptance of the terms, based on the unique characteristics of the more distant, centralized government to protect their Indigenous rights and provide economic benefit. In order to more expeditiously secure an agreement, the agent Commissioners for the Crown, on whom the Aboriginal parties placed trust and reliance, negligently misrepresented the identity of the bargaining party. This was a fundamental component of the treaty. The fact that a treaty was sought after by the government is prima facie evidence that the Ojibwe exhibited the necessary components to prove Aboriginal title to the area. These are exclusivity, continuity and sufficiency. (162) These components were also verified at trial in the defeated proceeding. (163) The Nation may now rebargain or retain title to the land.

VI BIBLIOGRAPHY

Judicial Decisions

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Atlantic Shopping Centres Ltd v Hutton (1980), 25 Nfld & PEIR 320 (Nfld TD).

Beattie v R, 2004 FC 674, [2004] 4 FCR 540.

Beattie v R, 2005 FC 715, [2005] FCJ No 904.

Benoit v Canada, [2002] FCJ No 257 (Fed TD)

Caisse Populaire de Caraquet Ltee c Federation des Caisses Populaires Acadiennes Ltee (1988), 87 NBR (2d) 33, 1988 CarswellNB 283 (WL Can).

Calder v British Columbia (Attorney General) (1973), [1973] SCR 313.

Canada v Smith (1883), 10 SCR 1.

Centura Building Systems Ltd v Cressey Whistler Project Corp, 2003 BCSC 1227.

Clintar Spray & Environmental Enterprise Inc v Municipal Spraying & Contracting Ltd (1978), 27 NSR (2d) 682 (NSTD).

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Eco-Zone Engineering Ltd v Grand Falls-Windsor (Town), 2000 NFCA 21.

Ennis v Klassen, [1990] MJ No. 219.

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Grassy Narrows First Nation v Ontario (Natural Resources), 2014 SCC 48, [2014] 2 SCR 447.

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Guerin v R, [1984] 2 SCR 335.

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Hay River (Town) v R, [1980] 1 FC 262, 101 DLR (3d) 184.

Hedley Byrne & Co Ltd v Heller & Partners Ltd, [1963] 2 All ER 575

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VII APPENDIX

From: Marshall, supra note 33 at para 78.

1. Aboriginal treaties constitute a unique type of agreement and attract special principles of interpretation: R. v. Sundown, [1999] 1 S.C.R. 393 (S.C.C.) at para. 24; R. v. Badger, [1996] 1 S.C.R. 771 (S.C.C.) at para. 78; Sioui v. Quebec (Attorney General), [1990] 1 S.C.R. 1025 (S.C.C.) at p. 1043; R. v. Simon, [1985] 2 S.C.R. 387 (S.C.C.) at p. 404. See also: J. [Sakej] Youngblood Henderson, "Interpreting Sui Generis Treaties" (1997), 36 Alta. L. Rev. 46; L. I. Rotman, "Defining Parameters: Aboriginal Rights, Treaty Rights, and the Sparrow Justificatory Test" (1997), 36 Alta. Law Rev. 149.

2. Treaties should be liberally construed and ambiguities or doubtful expressions should be resolved in favour of the Aboriginal signatories: Simon, supra, at p. 402; Quebec (Attorney General), supra, at p. 1035; Badger, supra, at para. 52.

3. 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: Quebec (Attorney General), supra, at pp. 1068 and 1069.

4. In searching for the common intention of the parties, the integrity and honour of the Crown is presumed:Badger, supra, at para. 41;

5. In determining the signatories' respective understanding and intentions, the court must be sensitive to the unique cultural and linguistic differences between the parties: Badger, supra, at paras. 52-54; R. v. Horseman, [1990] 1 S.C.R. 901 (S.C.C.) at p. 907.

6. The words of the treaty must be given the sense which they would naturally have held for the parties at the time:Badger supra, at para. 53 et seq.; Nowegijick v. R., [1983] 1 S.C.R. 29 (S.C.C.) at p. 36.

7. A technical or contractual interpretation of treaty wording should be avoided: Badger supra; Horseman supra; Nowegijick supra.

8. While construing the language generously, courts cannot alter the terms of the treaty by exceeding what "is possible on the language" or realistic: Badger supra, at para. 76; Quebec (Attorney General) supra, at p. 1069; Horseman supra, at p.. 908.

9. 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: Sundown, supra, at para. 32; Simon, supra, at p. 402.

(*) Author's note: I write on this topic from my position as an individual of European descent who is inhabiting the unceded territories of The Coast and Strait Salish People. I came to learn about the Canadian state's treatment of Indigenous peoples quite late in my education. It was never part of my public school curriculum. Acknowledging this leads me to struggle with whether I have the right to speak to an issue that directly affects the lives of so many. This essay is an attempt at simultaneously drawing upon and reacting to my lineage, which I acknowledge manifests problematically for many due to its Eurocentricity.

(1) The action was initially brought before the Divisional Court within the Ontario Superior Court of Justice in 2003 in Keewatin v Ontario (Minister of Natural Resources), [2003] OJ No. 2937 [Keewatin OJ]. However, the Divisional Court denied leave for judicial review on the basis that the Divisional Court lacked jurisdiction on constitutional matters, and that in any event, the matter ought to be converted to a trial given the complexity of the issues raised and their general public importance (at paras. 59-61). The matter was then brought before the Ontario Superior Court of Justice beginning in 2009 as Keewatin v Ontario (Minister of Natural Resources), 2011 ONSC 4801 [Keewatin ONSC].

(2) Grassy Narrows First Nation v Ontario (Natural Resources), 2014 SCC 48, [2014] 2 SCR 447 [Keewatin SCC].

(3) Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, Appendix II, No 5 [Constitution Act, 1867].

(4) The test for establishing Aboriginal title has emerged in common law jurisprudence over time developing from proceedings including Calder v British Columbia (Attorney General) (1973), [1973] SCR 313; Guerin v R, [1984] 2 SCR 335; R v Sparrow (1990), [1990] 1 SCR 1075, 70 DLR (4th) 385 [Sparrow]; Delgamuukw v British Columbia, [1997] 3 SCR 1010, [Delgamuukw]; and Haida Nation v British Columbia (Minister of Forests), [2004] 3 SCR 511. The test is given thorough and contemporary voice in Tsilhqot'in, infra note 4. A unanimous court found that the necessary indicia of (1) sufficiency, (2) continuity and (3) exclusivity were met in that case. These three components are detailed at paragraphs 33 through 44, 45 through 46 and 47 through 49 respectively. The court summarizes at paragraph 50: "The claimant group bears the onus of establishing Aboriginal title. The task is to identify how pre-sovereignty rights and interests can properly find expression in modern common law terms. In asking whether Aboriginal title is established, the general requirements are: (1) "sufficient occupation" of the land claimed to establish title at the time of assertion of European sovereignty; (2) continuity of occupation where present occupation is relied on; and (3) exclusive historic occupation. In determining what constitutes sufficient occupation, one looks to the Aboriginal culture and practices, and compares them in a culturally sensitive way with what was required at common law to establish title on the basis of occupation. Occupation sufficient to ground Aboriginal title is not confined to specific sites of settlement but extends to tracts of land that were regularly used for hunting, fishing or otherwise exploiting resources and over which the group exercised effective control at the time of assertion of European sovereignty."

(5) Xeni Gwet'in First Nations v British Columbia, 2014 SCC 44, [2014] 2 SCR 256 [Tsilhqot'in] at paras 67-68, 73-76 (Aboriginal title encompasses the right to exclusive use and occupation of the land for a variety of traditional and non-traditional purposes, in a manner similar to that associated with fee simple ownership. This includes the right to manage and economically benefit from the land so long as its management and use is reconcilable with the communal and successive sui generis nature associated with the group's attachment to the land).

(6) Keewatin OJ, supra note 1.

(7) Keewatin ONSC, supra note 1.

(8) Keewatin ONSC, supra note 1at para 49.

(9) Keewatin SCC, supra note 2 at para 3.

(10) Keewatin v Ontario (Minister of Natural Resources), 2013 ONCA 158 at para 65, 304 OAC 250 [Keewatin ONCA].

(11) St Catharines Milling & Lumber Co v R, (1889) LR 14 App Cas 46 [St Catharines]; Canada (Ontario Boundary) Act, 1889 (UK), 52-53 Vict, c 28.

(12) Ontario Boundaries Extension Act, 1912, 2 George V, c 40.

(13) Keewatin ONSC, supra note 1 at para 1; Keewatin SCC, supra note 2 at para 11.

(14) Keewatin ONSC, supra note 1 at paras 1647 and 1648 (referencing Questions 1 and 2 at para 2).

(15) Ibid at para 14.

(16) Constitution Act, 1982, s 35(1) (reads: "The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.")

(17) Keewatin ONSC, supra note 1 at para 16 (Constitution Act, 1867, supra note 3 s 91(24) places exclusive legislative authority in the hands of the Parliament of Canada vis-a-vis "Indians, and Lands reserved for the Indians.")

(18) Ibid, note 1 at para 1638; Keewatin ONCA, supra note 10 at paras 40 and 150; Keewatin SCC, supra note 2 at paras 30 and 32.

(19) Keewatin ONSC, supra note 1 at paras 775, 867, 868, 869, 881.

(20) Keewatin ONCA, supra note 10 at para 135; Keewatin SCC, supra note 2 at para 30.

(21) Keewatin ONCA, supra note 10 at para 102.

(22) Keewatin SCC, supra note 2 at para 30.

(23) Constitution Act, 1867, supra note 3 reads: (s 92 reads: "92. In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say, (5) The Management and Sale of the Public Lands belonging to the Province and of the Timber and Wood thereon."; s 92A reads: "92A. (1) In each province, the legislature may exclusively make laws in relation to (a) exploration for non-renewable natural resources in the province; (b) development, conservation and management of non-renewable natural resources and forestry resources in the province, including laws in relation to the rate of primary production therefrom; s 109 reads: "109. All Lands, Mines, Minerals, and Royalties belonging to the several Provinces of Canada, Nova Scotia, and New Brunswick at the Union, and all Sums then due or payable for such Lands, Mines, Minerals, or Royalties, shall belong to the several Provinces of Ontario, Quebec, Nova Scotia, and New Brunswick in which the same are situate or arise, subject to any Trusts existing in respect thereof, and to any Interest other than that of the Province in the same.")

(24) Keewatin SCC, supra note 2 at para 35.

(25) St Catharines, supra note 11.

(26) John Borrows, "Wampum at Niagara: The Royal Proclamation, Canadian Legal History, and Self-Government" in Michael Asch, ed, Aboriginal and Treaty Rights in Canada: Essays on Law, Equality, and Respect for Difference (Vancouver: UBC Press, 1997) 155 at 161-162.

(27) Royal Proclamation, October 7, 1763, reprinted in RSC 1985, App II, No 1 at paras 13-14 [Royal Proclamation] (paragraphs 13-17 in full read: "[13] And whereas it is just and reasonable, and essential to our Interest, and the Security of our Colonies, that the several Nations or Tribes of Indians with whom We are connected, and who live under our Protection, should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories as, not having been ceded to or purchased by Us, are reserved to them, or any of them, as their Hunting Grounds - We do therefore, with the Advice of our Privy Council, declare it to be our Royal Will and Pleasure, that no Governor or Commander in Chief in any of our Colonies of Quebec, East Florida. or West Florida, do presume, upon any Pretence whatever, to grant Warrants of Survey, or pass any Patents for Lands beyond the Bounds of their respective Governments as described in their Commissions: as also that no Governor or Commander in Chief in any of our other Colonies or Plantations in America do presume for the present, and until our further Pleasure be known, to grant Warrants of Survey, or pass Patents for any Lands beyond the Heads or Sources of any of the Rivers which fall into the Atlantic Ocean from the West and North West, or upon any Lands whatever, which, not having been ceded to or purchased by Us as aforesaid, are reserved to the said Indians, or any of them. [14] And We do further declare it to be Our Royal Will and Pleasure, for the present as aforesaid, to reserve under our Sovereignty, Protection, and Dominion, for the use of the said Indians, all the Lands and Territories not included within the Limits of Our said Three new Governments, or within the Limits of the Territory granted to the Hudson's Bay Company, as also all the Lands and Territories lying to the Westward of the Sources of the Rivers which fall into the Sea from the West and North West as aforesaid. [15] And We do hereby strictly forbid, on Pain of our Displeasure, all our loving Subjects from making any Purchases or Settlements whatever, or taking Possession of any of the Lands above reserved, without our especial leave and Licence for that Purpose first obtained. [16] And We do further strictly enjoin and require all Persons whatever who have either wilfully or inadvertently seated themselves upon any Lands within the Countries above described. or upon any other Lands which, not having been ceded to or purchased by Us, are still reserved to the said Indians as aforesaid, forthwith to remove themselves from such Settlements. [17] And whereas great Frauds and Abuses have been committed in purchasing Lands of the Indians, to the great Prejudice of our Interests. and to the great Dissatisfaction of the said Indians: In order, therefore, to prevent such Irregularities for the future, and to the end that the Indians may be convinced of our Justice and determined Resolution to remove all reasonable Cause of Discontent, We do, with the Advice of our Privy Council strictly enjoin and require, that no private Person do presume to make any purchase from the said Indians of any Lands reserved to the said Indians, within those parts of our Colonies where We have thought proper to allow Settlement: but that, if at any Time any of the Said Indians should be inclined to dispose of the said Lands, the same shall be Purchased only for Us, in our Name, at some public Meeting or Assembly of the said Indians, to be held for that Purpose by the Governor or Commander in Chief of our Colony respectively within which they shall lie: and in case they shall lie within the limits of any Proprietary Government, they shall be purchased only for the Use and in the name of such Proprietaries, conformable to such Directions and Instructions as We or they shall think proper to give for that Purpose: And we do, by the Advice of our Privy Council, declare and enjoin, that the Trade with the said Indians shall be free and open to all our Subjects whatever, provided that every Person who may incline to Trade with the said Indians do take out a Licence for carrying on such Trade from the Governor or Commander in Chief of any of our Colonies respectively where such Person shall reside, and also give Security to observe such Regulations as We shall at any Time think fit, by ourselves or by our Commissaries to be appointed for this Purpose, to direct and appoint for the Benefit of the said Trade:").

(28) See Borrows, supra note 26.

(29) St Catharines, supra note 11 at para 7.

(30) Upper and Lower Canada were united under statute in 1840 to become the Province of Canada. The British North America Act, 1867, 30-31 Vict, c 3 (UK) [BNA Act] repealed the 1840 statute, dividing the Province of Canada into Ontario and Quebec (BNA Act s. 6).

(31) St Catharines, supra note 11 at para 8.

(32) Ibid at para 9.

(33) R v Marshall, [1999] 3 SCR 456, at para 78, [1999] SCJ No 55 [Marshall].

(34) The Law Commission of Canada, Justice Within: Indigenous Legal Traditions, (The Law Commission of Canada, 2006) at 7 (the Nisga'a Ayuuk, an ancient legal code is recognized in the Nisga'a Final Agreement Act [SBC 1999] Chapter 2, as a source of law and has guided modern legislation in that area); Aboriginal Affairs and Northern Development Canada, The Government of Canada's Approach to Implementation of the Inherent Right and the Negotiation of Aboriginal Self-Government, (September 2010), online: Government of Canada, https://www.aadnc-aandc.gc.ca/eng/1100100031843/1100100031844 (recognizes that Aboriginal peoples have the right to self-government in relation to matters that are internal to their communities and with respect to their special relationship to their land and resources).

(35) See R v Mitchell, [2001] 1 SCR 911, at paras 9-10 (common law recognizes the continuity of Aboriginal laws unless surrendered or extinguished by unambiguous government legislation); Delgamuukw, supra note 4 at para 87 (oral tradition allowed as evidence allowed on exception to admissibility of hearsay).

(36) Gerald Henry Louis Fridman, The Law of Contract in Canada, 6th ed (Toronto: Carswell, 2011) at 312; Stephen M. Waddams, The Law of Contracts, 6th ed (Aurora, Ont.: Cartwright Group, 2010) at para 545; see also Simpson v Moffat Communications Ltd., [1983] BCJ No. 2089 (proof of inequality in bargaining power and proof that such inequality was used in an unconscionable way to produce an unfair result will void contract.); Rogers v Lane Realty Corp, 2005 SKQB 330 (an agreement is unconscionable where one party uses its position of power in an unconscionable manner to achieve a material advantage.)

(37) R v Sundown, [1999] 1 SCR 393 at para 24 [Sundown]; Benoit v Canada, [2002] FCJ No 257 (Fed TD), at paras 10 and 12 [Benoit]; Hay River (Town) v R, [1980] 1 FC 262 at para 186, 101 DLR (3d) 184 [Hay River].

(38) Keewatin ONSC, supra note 1 at paras 1634-1637

(39) Ibid at paras 28, 31, 33 and 35 (many official documents written contemporaneous with the treaty negotiations were admitted at trial, as were excerpts from journals written by those who witnessed negotiations, providing insight into what the Crown representatives, particularly Alexander Morris, likely imparted to the Ojibwe).

(40) Specific Claims Tribunal Act, SC 2008, c 22, s 13(1)(b); Delgamuukw, supra note 4 at para 87; R v Vanderpeet, [1996] 2 SCR 507, at para 68.

(41) Hobbs v Esquimalt & Nanaimo Railway, [1899] 29 SCR 450, 1899 CarswellBC 23; Raffles v. Wichelhaus, [1864] EWHC Exch J19 (1864) 2 H & C 906.

(42) May and Butcher Ltd v The King, [1929] ADR.L.R. 02/22.

(43) Internal confusion as to the rights and obligation held by the federal and provincial governments are apparent in St Catharines, supra note 11, and Province of Ontario v Dominion of Canada, 42 SCR 1, [1909] SCJ No 28 [Canada v Ontario].

(44) Beattie v R, 2004 FC 674, [2004] 4 FCR 540 [Beattie 2004].

(45) Ibid at para 11.

(46) Financial Administration Act, RSC 1985, c F-11 ss 67-8.

(47) Beattie 2004, supra note 44 at para 41.

(48) Ibid at para 36.

(49) Beattie v R, 2005 FC 715, [2005] FCJ No 904 at para 18.

(50) Financial Administration Act, supra note 46, s 2 "public money".

(51) Sundown, supra note 37 at para 24; Benoit, supra note 37 at paras 10 and 12; Hay River, supra note 37 at para 186.

(52) Sundown, supra note 37 at para 24.

(53) Benoit, supra note 37 at para 12, citing ibid at para 24.

(54) R v Horseman, [1990] 1 SCR 901 at para 6 [Horseman].

(55) Hay River, supra note 37 at para 5.

(56) Ibid at para 5.

(57) Mikisew Cree First Nation v Canada (Minister of Canadian Heritage), 2005 SCC 69 at para 63, [2005] 3 SCR 69 [Mikisew].

(58) Ron Ghitter Property Consultants Ltd v Beaver Lumber Company Limited, 2003 ABCA 221 at para 8 [ Ghitter].

(59) Great Peace Shipping v Tsavliris Salvage (2002), [2003] QB 679 (Eng CA) at 690 [Great Peace].

(60) Fridman, supra note 36 at 242.

(61) Ibid at 245.

(62) Ibid at 243 (a mistake relating to intention goes to whether the party obtained what he or she intended to obtain by entering the contract. A mistake relating to motive suggests that the party obtained what he or she intended to, but that the thing bargained for turned out to be different in character. For example, if A contracts with B to purchase wheat but B delivers corn, the mistake that wheat was the subject of the contract would go to the intention to bargain. However, if B delivers inferior quality wheat, then the mistake that a certain quality was bargained for would go to the motivation to contract. At common law, the mistake in the first instance would likely lead to a declaration that the contract was void ab initio (from the beginning); however, at common law the mistake in the second instance would not likely lead to that result. Instead, the difference in quality may lead to a remedy in equity that B must refund a portion of the bargained price, but the contract would stand.

(63) Ibid at 247 citing McCarthy v Godin Mining & Exploration Ltd (1978), 20 NBR (2d) 676 (NBQB) (parties contracted to mine silica on owner's land. Both parties thought silica was a reserved mineral under provincial law in which case the owner could not deny its mining. The contract was held void ab initio when it was discovered silica was not a reserved mineral and the land owner had no obligation to allow the mining. The mistake went to the intention to contract); Clintar Spray & Environmental Enterprise Inc v Municipal Spraying & Contracting Ltd (1978), 27 NSR (2d) 682 (NSTD) (a contractor made an calculation error in an estimate and attempted to void the contract due to mistake. The customer had entered into the contract because he felt he was receiving a bargain. The contract was upheld because the mistake went to the motive to contract, not to the intention. Both parties intended to contract for the subject that was delivered notwithstanding the difference in character.); A.L. Gullison & Sons Ltd v Corey (1979), 24 NBR (2d) 638 NBQB) (builder and property owner entered contract to build a house of a certain size. When the plans proved to result in a house of lesser square footage, the owner sought to void the contract due to mistake. The contract was upheld because the parties intended to contract for the house; the size of the house did not go to the essential nature of the contract).

(64) Ibid at 257 citing McMaster University v Wilchar Construction Ltd (1971), 22 DLR (3d) 9 at 18 and 19 (Ont HC); affirmed (1973), 69 DLR (3d) 400n (Ont CA).

(65) Ibid at 249-256.

(66) Ibid at 250 and 255.

(67) Ghitter, supra note 58 at para 14.

(68) If a contract is 'void', it is as if the contract never existed; also known as void ab initio (from the beginning). If a contract is 'voidable', the contract exists and is valid until the wronged party acts to set the contract aside. In the case of a voidable contract, particularly where conveyance is involved, title to property is passed, and might therefore be legitimately passed further to a third party before the original innocent party sets the contract aside (Brian A Garner, editor, Black's Law Dictionary, 10th ed (USA: West Group, May 2014)) [Black's Law].

(69) Fridman, supra note 36 at 250.

(70) Ibid at 252-253.

(71) Ibid at 254 citing Works v Works (2002), 206 NSR (2d) 292 (NSSC).

(72) Ingram v Little (1960), [1961] 1 QB 31.

(73) Lewis v Averay, [1972] 1 QB 198 at 911, Lord Denning states that the contrast between identity and attributes is "a distinction without a difference. A man's very name is one of his attributes. It is also a key to his identity. If then he gives a false name, is it a mistake as to his identity? [sic] or a mistake as to his attributes? These fine distinctions do no good to the law."

(74) Fridman, supra note 36 at 260. See also Con-Force Products Ltd v Rosen (1967), 64 DLR (2d) 63 (Sask QB); Twin City Equipment Sales & Rental Ltd v Mid West Pipeline Contractors Ltd (1980), 2 Sask R 421 (Sask QB); Vancouver Motors U-Drive Ltd v Terry, [1942] SCR 391; Atlantic Shopping Centres Ltd v Hutton (1980), 25 Nfld & PEIR 320 (Nfld TD).

(75) Fridman, supra note 36 at 262.

(76) Centura Building Systems Ltd v Cressey Whistler Project Corp, 2003 BCSC 1227 at para 36, [2003] BCWLD 852 [Centura].

(77) Waddams, supra note 36 at para 415.

(78) Eco-Zone Engineering Ltd v Grand Falls-Windsor (Town), 2000 NFCA 2 at para 9, 5 CLR (3d) 55 [Eco-Zone].

(79) Leitch Gold Mines Ltd v Texas Gulf Sulphur Co, [1968] OJ No 1336, at para 241 [Leitch].

(80) Ibid at para 241.

(81) Ibid at para 244.

(82) G. Scammell & Nephew Ltd v Ouston, [1942] 1 All ER 14 at para 26; Lower Similkameen Indian Band v British Columbia, 1996 CarswellBC 384.

(83) Ironside v Smith, 1998 ABCA 366 at para 65 [Ironside]; Manulife Bank of Canada v Conlin, [1996] 3 SCR 415 at paras 8-9.

(84) Ironside, supra note 83 at para 67.

(85) Keewatin ONSC, supra note 1 at para 1634.

(86) An innocent misrepresentation is one where the representor had reasonable grounds for believing that the false statement was true (Fridman, supra note 36 at 294). A negligent misrepresentation is one where the representor made a representation about something while having no reasonable reasons for believing it to be true (Waddams, supra note 36 at paras 430-432). A fraudulent misrepresentation is one where the representor is aware of the stated falsehood and the representation is purposeful and deceitful (Fridman, supra note 36 at 285).

(87) Sharbern Holding Inc v Vancouver Airport Centre Ltd, 2011 SCC 23 at para 121 [Sharbern].

(88) Ibid at para 123.

(89) Esso Petroleum Co Ltd v Mardon, [1976] 2 All ER 5 (CA) at 16 [Esso].

(90) Waddams, supra note 36 at paras 421 424 and 427; Waxman v Yeandle, [1953] 2 DLR 475 at para 31 (an innocent misrepresentation by the seller of a hotel regarding the volume of liquor sales entitled the buyer to a rescission); Kingu v Walmar Ventures Ltd, [1986] BCJ No 597 at paras 18, 22-31 (plaintiff sued claiming fraudulent misrepresentation on the part of hotel vendor. Trial court allowed partial rescission due to negligent representation. Decisions overturned at appeal as there is no common law remedy of partial rescission; however, the case showcases a good discussion of misrepresentation and the available remedy of rescission).

(91) Fridman, supra note 36 at 284 referencing Hedley Byrne & Co v Heller & Partners (1963), [1964] AC 465 (HL); Waddams, supra note 36 at para 428.

(92) Fridman, supra note 36 at 284.

(93) Ibid, at 294 referencing Heilbut Symons & Co v Buckleton, [1913] AC 30, ("If the statement can be regarded as more than an assertion but as a definite part of the bargain, that is, as one of the promises made by one party to get the consent of the other, then it will be a term.").

(94) Ibid at 286.

(95) Ibid at 301.

(96) Ibid at 302, referencing Revell v O'Brien Financial Corp (1988), 30 BCLR (2d) 330 (BCCA); affirmed (1991), 62 BCLR (2d) 314 (BCCA).

(97) Waddams, supra note 36 at para 415.

(98) Sundown, supra note 37 at para 24; Hay River, supra note 37 at para 5.

(99) Mikisew, supra note 57 at para 63; Horseman, supra note 54 at para 6; Hay River, supra note 37 at para 5.

(100) R v Badger, [1996] 1 SCR 771 at para 9.

(101) Marshall, supra note 33 at para 82.

(102) Ibid at para 78.

(103) Keewatin ONSC, supra note 1 at paras 582, 600, 604-605, 615, 775, 868-869, 871-872, 881, 884, 890, 903-904, 1183, 1188, 1190, 1193 and 1638.

(104) Keewatin ONCA, supra note 10 at paras 133-134.

(105) Keewatin SCC, supra note 2 at para 30.

(106) Canada v Smith (1883), 10 SCR 1 at 9, Henry J (Ex Ct) (the cited quote is made by Henry J of the Exchequer Court in the proceeding that led to appeal to the Supreme Court of Canada. Although the decision of the Exchequer Court was overturned at appeal, it was done so on an interpretation of the facts of the case, and not on this point of law. The statement by Henry J is reflected in the Supreme Court of Canada decision by Strong J at 54-55 "That a party who enters into a contract for the performance of work is not entitled by a mere assignment to another person to substitute the assignee for himself, so as to delegate to the assignee his own rights and liabilities under the contract, without the consent of the other party to the agreement, is a proposition of law so well established that it requires scarcely any authority to support it.").

(107) Paterson Timber Co v Canadian Pacific Lumber Co, 1910 CarswellBC 115 at para 68; affirmed by BCCA, 1910 CarswellBC 70.

(108) Keewatin ONSC, supra note 1 at para 69.

(109) Sparrow, supra note 4.

(110) Ghitter, supra note 58 at paras 9-11; Cheshire, Fifoot and Furmstom, Law of Contract, 14th ed. (London: Butterworths, 2001) at 272 and 270.

(111) Keewatin ONSC, supra note 1 at paras 582, 600, 604-605, 615, 775, 868-869, 871-872, 881, 884, 890, 903-904, 1183, 1188, 1190, 1193 and 1638.

(112) Keewatin ONSC, supra note 1 at paras 224, 895, 893 and 888.

(113) Canada v Ontario, supra note 43.

(114) Ontario Boundaries Extension Act, supra note 12.

(115) Canada v Ontario, supra note 43 at para 206.

(116) Centura, supra note 76 at para 36.

(117) Keewatin ONSC, supra note 1 at paras 582, 838-839 and 845.

(118) Ibid at para 869.

(119) Ibid at paras 592 and 603.

(120) Ibid at para 458.

(121) John J. Borrows and Leonard I. Rotman, Aboriginal Legal Issues: Cases, Materials & Commentary 4th ed (Markham: LexisNexis Canada Inc, 2012) at 22, 28-29.

(122) Keewatin ONSC, supra note 1 at para 770.

(123) The trial judge found that indeed the Ojibwe intended to bargain with the Dominion government (Keewatin ONSC, supra note 1 at para 1638). This finding was not overturned at subsequent court proceedings (Keewatin ONCA, supra note 10 at paras 73 and 75); however, this was not the focal subject of the appeals. On appeal, the matter turned on whether the provincial governments could claim rights under the harvesting clause notwithstanding the intention or belief of the Ojibwe as with whom they had bargained (Keewatin ONCA, supra note 10 at paras 99-100; Keewatin SCC, supra note 2 at para 27). Should the argument within this manuscript proceed, the complainant must be prepared to support these trial findings on appeal. The legal evidentiary defense of this position is beyond the scope of this manuscript.

(124) Keewatin ONSC, supra note 1 at para 1638.

(125) Royal Proclamation, supra note 27 at para 13.

(126) Ibid at paras 13-14.

(127) Ibid at paras 15-17.

(128) Ibid at para 17.

(129) John Borrows, "Canada's Colonial Constitution." (2015) at 4 [unpublished, archived at University of Victoria Faculty of Law].

(130) Keewatin ONSC, supra note 1 at paras 582, 600, 604-605, 615, 775, 868-869, 871-872, 881, 884, 890, 903-904, 1183, 1188, 1190, 1193 and 1638.

(131) The BNA Act, supra note 30, took effect on July 1, 1867, establishing the Dominion of Canada (s. 4), whose seat of power resided in Ottawa (s. 16). The Province of Canada was divided into Ontario and Quebec (s. 6) at which time Toronto was established as the Ontario provincial capital.

(132) Keewatin ONSC, supra note 1 at para 893.

(133) Ibid at para 615.

(134) Ibid at para 886.

(135) Ibid at para 605.

(136) Ibid at paras 600-601.

(137) Ibid at paras 871-872 and 890.

(138) Keewatin ONCA, supra note 10 at para 151.

(139) Eco-Zone, supra note 78 at para 9.

(140) Keewatin SCC, supra note 2 at para 8.

(141) Marshall, supra note 33 at paras 78 and 82.

(142) Caisse Populaire de Caraquet Ltee c Federation des Caisses Populaires Acadiennes Ltee (1988), 87 NBR (2d) 33 at para 23, 1988 CarswellNB 283 at para 23 (WL Can).

(143) Ibid at para 33.

(144) Keewatin SCC, supra note 2 at para 50.

(145) Black's Law, supra note 68 (defines fiduciary as "...a person holding the character of a trustee, or a character analogous to that of a trustee, in respect to that trust and confidence involved in it and the scrupulous good faith and candour which it requires.").

(146) Hedley Byrne & Co Ltd v Heller & Partners Ltd, [1963] 2 All ER 575 at 594.

(147) Ibid at 610.

(148) Keewatin ONCA, supra note 10 at para 135, 160-161.

(149) Keewatin ONSC, supra note 1 at para 872 and 1638.

(150) Keewatin ONSC, supra note 1 at paras 146, 394, 396, 403 and 412.

(151) Ibid at para 414.

(152) Ibid at paras 414-416.

(153) Keewatin ONCA, supra note 10 at para 119.

(154) Ibid at para 75.

(155) A summary of the legal test is articulated in Tsilhqot'in, supra note 4.

(156) The date I have proposed is not conclusive. In Delgamuukw, supra note 4 at para 145, the court finds that British sovereignty over British Columbia occurred in 1846, established by the Oregon Boundary Treaty. In R v Marshall, [2005] 2 SCR 220 at para 71 the court finds British sovereignty over Cape Breton occurred in 1763 with the signing of the Treaty of Paris and in 1713 for Mainland Nova Scotia; however, in R v Bernard, [2000] NBJ No 138 at para 92, the court finds the British claimed sovereignty over Nova Scotia in 1759. Together, this indicates that the date the courts will find a declaration of Crown sovereignty over a particular geographic area will be historically contextual and likely debatable. Because the Treaty of Paris and the Royal Proclamation, supra note 27 were roughly contemporaneous, and because these documents addressed issues of British sovereignty over areas already known to the colonizers, it seems plausible 1763 would be held by the courts to be the date of declaration of sovereignty.

(157) Tsilhqot'in, supra note 5 at para 37.

(158) Ibid at para 35.

(159) Ibid at para 46.

(160) In the 1950's the Canadian government forcibly relocated several Inuit families from Inukjuak, northern Quebec and Pond Inlet, the Northwest Territories (as they then were) were to Ellesmere Island and Resolute Bay. At the time, the government claimed the reason for the relocations was to mitigate poverty and reduce the Indigenous population density, which had resulted in overhunting and unsustainability of the land. The Inuit claimed the relocations were an effort by the Canadian government to reinforce a sovereign Canadian presence in the extreme north by using the Inuit as 'human flagpoles'. The Canadian government offered an official apology to the Inuit people in 2010. See http://www.aadnc-aandc.gc.ca/eng/1100100016115/1100100016116.

(161) Tsilhqot'in, supra note 5 at paras 48-49.

(162) Ibid at paras 33-49.

(163) Keewatin ONSC, supra note 1 at paras 255-56.
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