Historians in the Courts

by Doug Harris ~ September 13th, 2011. Filed under: supplemental readings.

Please have a look at these short excerpts from two Aboriginal and treaty rights cases. I have provided links to the full text of the Supreme Court of Canada decisions if you are interested in reading more.

R. v. Nikal, [1996] 1 SCR 1013

XXV.         In order to determine whether the band by‑law applies to the Bulkley River, it will be necessary to consider and resolve a number of questions.  At the outset it must be emphasized that a consideration of the by‑law raises the question of whether an exclusive right to fish in the Bulkley River at Moricetown was granted to the band.  This is very different and distinct from the aboriginal right to fish for food and ceremonial purposes which is given constitutional recognition and protection by s. 35 of the Constitution Act, 1982.  Obviously if an exclusive right to fish was granted to the band, the by‑law would be valid and applicable to the Bulkley River in its passage through the reserve.

XXVI.         At the outset I would confirm that I have read and relied upon some of the historical documents filed by the intervener Canadian National Railway Company.  The appellant objected to any use being made of these documents.  I cannot accept that position.  First, all parties have had an opportunity to review the documents and make submissions pertaining to them.  Further these are all documents of a historical nature that can be found in the public archives.  They are available for use by all members of the public.  Lamer J. (as he than was) spoke of such documents in clear and convincing tones in R. v. Sioui1990 CanLII 103 (SCC), [1990] 1 S.C.R. 1025.  He wrote at p. 1050:

I am of the view that all the documents to which I will refer, whether my attention was drawn to them by the intervener or as a result of my personal research, are documents of a historical nature which I am entitled to rely on pursuant to the concept of judicial knowledge.

Did the Crown Intend to Include the Fishery in the Allotment of Moricetown Indian Reserve No.1 to the Wet’suwet’en Band?

The General Policy of the Crown

XXVII.        In this case much has been said as to the general practice of the Crown in allocating reserves to native peoples.  Evidence as to a general practice may be particularly helpful in determining the scope or extent of native rights.  The relevant evidence is sometimes lost and that which remains must be carefully placed in context so that its true significance is neither distorted nor lost.

XXVIII.      The historical evidence as to the standard practice of the Crown can be conveniently divided into pre‑ and post‑Confederation periods.  This evidence, taken from documents in the public archives, demonstrates that in both periods there was a clear and specific Crown policy of refusing to grant,in perpetuity, exclusive rights to fishing grounds.  The Crown would, however, grant exclusive licences or leases over particular areas for a fixed period of time.  Obviously this practice was far from an absolute assignment of a fishery right.

R. v. Marshall, [1999] 3 SCR 456

35               In my view, all of this evidence, reflected in the trial judgment, demonstrates the inadequacy and incompleteness of the written memorial of the treaty terms by selectively isolating the restrictive trade covenant.  Indeed, the truckhouse system offered such advantageous terms that it hardly seems likely that Mi’kmaq traders had to be compelled to buy at lower prices and sell at higher prices.  At a later date, they objected when truckhouses were abandoned.  The trade clause would not have advanced British objectives (peaceful relations with a self-sufficient Mi’kmaq people) or Mi’kmaq objectives (access to the European “necessaries” on which they had come to rely) unless the Mi’kmaq were assured at the same time of continuing access, implicitly or explicitly, to wildlife to trade.  This was confirmed by the expert historian called by the Crown, as set out below.

(ii)  The Expert Evidence

36               The courts have attracted a certain amount of criticism from professional historians for what these historians see as an occasional tendency on the part of judges to assemble a “cut and paste” version of history:  G. M. Dickinson and R. D. Gidney, “History and Advocacy:  Some Reflections on the Historian’s Role in Litigation”, Canadian Historical Review, LXVIII (1987), 576; D. J. Bourgeois, “The Role of the Historian in the Litigation Process”, Canadian Historical Review, LXVII (1986), 195; R. Fisher, “Judging History:  Reflections on the Reasons for Judgment in Delgamuukw v. B.C.”, B.C. Studies, XCV (1992), 43; A. J. Ray, “Creating the Image of the Savage in Defence of the Crown:  The Ethnohistorian in Court”, Native Studies Review, VI (1990), 13.

37               While the tone of some of this criticism strikes the non-professional historian as intemperate, the basic objection, as I understand it, is that the judicial selection of facts and quotations is not always up to the standard demanded of the professional historian, which is said to be more nuanced.  Experts, it is argued, are trained to read the various historical records together with the benefit of a protracted study of the period, and an appreciation of the frailties of the various sources.  The law sees a finality of interpretation of historical events where finality, according to the professional historian, is not possible.  The reality, of course, is that the courts are handed disputes that require for their resolution the finding of certain historical facts.  The litigating parties cannot await the possibility of a stable academic consensus.  The judicial process must do as best it can.  In this particular case, however, there was an unusual level of agreement amongst all of the professional historians who testified about the underlying expectations of the participants regarding the treaty obligations entered into by the Crown with the Mi’kmaq.  I set out, in particular, the evidence of the Crown’s expert, Dr. Stephen Patterson, who spent many days of testimony reviewing the minutiae of the historical record.  While he generally supported the Crown’s narrow approach to the interpretation of the Treaty, which I have rejected on points of law, he did make a number of important concessions to the defence in a relatively lengthy and reflective statement which should be set out in full:

Q.   I guess it’s fair to say that the British would have understood that the Micmac lived and survived by hunting and fishing and gathering activities.

A.   Yes, of course.

Q.   And that in this time period, 1760 and ‘61, fish would be amongst the items they would have to trade.  And they would have the right under this treaty to bring fish and feathers and furs into a truckhouse in exchange for commodities that were available.

A.   Well, it’s not mentioned but it’s not excluded.  So I think it’s fair to assume that it was permissible.

Q.   Okay.  It’s fair to say that it’s an assumption on which the trade truckhouse clause is based.

A.   That the truckhouse clause is based on the assumption that natives will have a variety of things to trade, some of which are mentioned and some not.  Yes, I think that’s fair.

Q.   Yes.  And wouldn’t be out of line to call that a right to fish and a right to bring the fish or furs or feathers or fowl or venison or whatever they might have, into the truckhouses to trade.

A.   Ah, a right.  I think the implication here is that there is a right to trade under a certain form of regulation –

Q.   Yes.

A.   – that’s laid down.  And if you’re saying right to fish, I’ve assumed that in recognizing the Micmac by treaty, the British were recognizing them as the people they were.  They understood how they lived and that that meant that those people had a right to live in Nova Scotia in their traditional ways.  And, to me, that implies that the British were accepting that the Micmac would continue to be a hunting and gathering people, that they would fish, that they would hunt to support themselves.  I don’t see any problem with that.

It seems to me that that’s implicit in the thing.  Even though it doesn’t say it, and I know that there seems to, in the 20th century, be some reluctance to see the value of the 1760 and 1761 treaties because they’re not so explicit on these matters, but I personally don’t see the hang-up.  Because it strikes me that there is a recognition that the Micmac are a people and they have the right to exist.  And that has – carries certain implications with it.

More than this, the very fact that there is a truckhouse and that the truckhouse does list some of the things that natives are expected to trade, implies that the British are condoning or recognizing that this is the way that natives live.  They do live by hunting and, therefore, this is the produce of their hunting.  They have the right to trade it.

Q.   And you have, in fact, said that in your May 17th, 1994 draft article.

A.   That’s correct.

Q.   Yeah.  And you testified to that effect in the Pelletier case, as well.

A.   Well, my understanding of this issue, Mr. Wildsmith, has developed and grown with my close reading of the material.  It’s the position that I come to accept as being a reasonable interpretation of what is here in these documents.  [Emphasis added.]

38               The trial judge gave effect to this evidence in finding a right to bring fish to the truckhouse to trade, but he declined to find a treaty right to fish and hunt to obtain the wherewithal to trade, and concluded that the right to trade expired along with the truckhouses and subsequent special arrangements.  The Court of Appeal concluded, at p. 207, that Dr. Patterson used the word “right” interchangeably with the word “permissible”, and that the trade clause gave rise to no “rights” at all.  I think the view taken by the courts below rather underestimates Dr. Patterson.  No reason is given for doubting that Dr. Patterson meant what he said about the common understanding of the parties that he considered at least implicit in this particular treaty arrangement.  He initially uses the words “permissible” and “assumption”, but when asked specifically by counsel about a “right” to fish and to trade fish, he says, “Ah, a right” (emphasis added), then, weighing his words carefully, he addresses a “right to fish” and concludes that “by treaty” the British did recognize that the Mi’kmaq “had a right to live in Nova Scotia in their traditional ways” (emphasis added) which included hunting and fishing and trading their catch for necessaries.  (Trading was traditional.  The trial judge found, at para. 93, that the Mi’kmaq had already been trading with Europeans, including French and Portugese fishermen, for about 250 years prior to the making of this treaty.)  Dr. Patterson said his opinion was based on the historic documents produced in evidence.  He said that this was “the position that I come to accept as being a reasonable interpretation of what is here in these documents” (emphasis added).  Dr. Patterson went on to emphasize that the understanding of the Mi’kmaq would have been that these treaty rights were subject to regulation, which I accept.

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