Trust. Integrity. Reputation.
February - 2006Samson decision causes outrage
By Paul Barnsley
Windspeaker Staff Writer
MONTREALThe last judgement rendered by Federal Court Justice Max Teitelbaum will not be remembered fondly in Hobbema.
Two First Nations located around the central Alberta town - Samson Cree and Ermineskin Cree - filed suit in 1989 in what has become a gigantic legal action. The band councils are suing the federal government for approximately $1.5 billion in oil and gas revenue that they allege was lost due to Crown mismanagement, discriminatory policy and breaches of Treaty 6.
The lawsuit is so large and complex it has been divided into several phases. After extensive pre-trial examinations of witnesses, the trial began in May 2000. Justice Teitelbaum spent the last six years hearing evidence on the first two phases of the trial. He rendered his decision on Dec. 2 and will soon retire from the bench. Another judge will have to get up to speed when the trial resumes. No judge has yet been appointed and no hearing dates have been scheduled.
Before that happens, the Federal Court of Appeal, and perhaps even the Supreme Court of Canada, will have to look over the judgement.
Samson Cree Nation lawyer James O'Reilly admits to being disillusioned and disappointed with Justice Teitelbaum's decision. Windspeaker spoke to the veteran lawyer by telephone from his Montreal office on Dec. 20. The appeal was filed in Federal Court the next day.
"It hurts," he said. "It's very difficult to accept, not only as a lawyer, but as a person, and as a person who works for the treaty Indians. And I've tried to be in on the development of the fight for Indian rights for 40 years in 2006 and I say to myself, 'We're back before the days of 1969.' In a way it's worse. In 1969, we knew that people didn't make a pretense. They said Indian people don't have rights. They have privileges, and the treaties don't mean much. But now you've got the conventional wisdom, the residential schools, the royal commission that said they have the right to govern themselves and we should consider the treaties as something that was pretty essential in the building of this country and recognize that for what it is. There was supposed to be some kind of a partnership, even if one partner was far more powerful than the other: a partner's a partner, a brother's a brother. Now, it's paying lip service to recognition of basic treaty and fundamental rights and that's more dangerous because it's more hypocritical."
In order for an appeals court to agree to review a trial decision, the higher court must be convinced that the trial judge made errors of law. O'Reilly didn't think he'd have any problem meeting that requirement.
"We think there are over 100 errors at law that we're putting down as ground for appeal. We say he didn't follow the principles of interpretation for treaty set down by the Supreme Court of Canada," he said.
O'Reilly said Justice Teitelbaum did not follow the Supreme Court's lead when it came to interpreting the treaty.
"The Supreme Court has been saying it's the common intention of the parties. It's not just what the white people understood. We're saying you have to go back to the very nature of the treaty. What was it? We're saying it's an oral and written treaty. It was an alliance. It was about how you're going to co-exist, how you're both going to live on the land," the lawyer said.
The written judgment focused on the surrender clause in the treaty. O'Reilly said the judge rejected his argument that Native people at the time would not have understood the significance of the legal language. Previous court decisions have created a standard that treaties should be interpreted liberally in favor of the Native people because of that problem. O'Reilly suggested that didn't happen in this case.
"The judge put a lot of emphasis on this legalese clause. It's one thing to say that the Indians give up exclusive control-and I think they knew that-and that the white people would be coming in. It's another thing to tell them, 'you have no more rights from a legal perspective whatsoever on this land except what we give to you.' I mean, it takes a trained lawyer now to be able to explain to lay people even the beginnings of what is this thing called Aboriginal rights or Aboriginal title or sui generis rights and what does that mean in law," he said.
"There's no mention in even the written record of somebody having explained specifically, 'what does this written clause in the treaty mean: surrender, yield up, give up all their rights and title and interest to the lands?' So it's quite obvious that there were very different intentions, very different understandings about what was to be done."
Writings at the time by the Crown treaty negotiator suggest that other Indigenous peoples who had previously entered into treaty would have explained the concept of surrender and complete loss of rights, and [that]the Plains Cree ancestors of the Samson Cree Nation knew what they were signing.
"Well, that's a tremendous leap of logic," O'Reilly said.
He said that reasoning just won't stand up to analysis.
"If you had today the Canadians and, let's say, the Chinese, neither able to speak the other's language and just going by interpreters and you say, "Well, what is the exact meaning of a highly technical clause?' How much do you think either of them would have in the way of an absolute common understanding about some written text?"
But Justice Max Teitelbaum rejected that line of reasoning in his written judgment.
"The judge just jumps and says they had an interpreter and he knew what he was doing and the missionaries said this and the Indian stories of what happened, the judge says it's implausible. What is implausible? It's a highly European driven notion to say that you don't believe the accounts of these people when it's mixed with the spiritual dimension and the whole Indian understanding," said James O'Reilly. "It comes down to a clash of philosophies too. For the Indian people, you can't own the sun and the moon and the stars and the land and you're only here for a certain time. Then you get the British coming in and saying, 'We can own a piece of property.' The judge is supposed to take the Aboriginal perspective into consideration. Instead the result is that he demeans the Aboriginal perspective and gives no real effect to what they had to say."
Samson Cree Chief Victor Buffalo issued an angrily worded press release after reviewing the decision. He felt the judge not only disregarded the testimony of Samson Elders but was insulting in how he did so. O'Reilly agreed.
"We're saying the judge simply went with the white man's side and in effect, I'll use the word 'disparaged,' was highly dubious about and highly critical about the Indian side. That's one of the grounds for appeal. He gave very, very, very little weight or credibility to almost all of the 38 witnesses that were called whether they were Elders or Plains Cree witnesses or Samson witnesses or experts called by Samson. Whereas the written accounts of the white people, their word was gold and they should be totally believed. It boggles my mind that you can get one side of the story and really he's dismissive of the other side of the story."
O'Reilly was equally as outraged about the decision rendered in the monies phase of the action.
"We said under treaty they have the right to the monies, to the resources, and the Crown, the federal government in this case, is the trustee. By simply taking that money and putting it into the consolidated revenue fund and borrowing that money without the permission of Samson and all the other Indians in the country and unilaterally setting a rate of interest, we say they're not acting either as a treaty partner or as a trustee. We say it's supposed to be for the best interests of Samson and for their benefit. The Crown as a trustee has to act as a prudent person would in managing his own affairs."
O'Reilly believes the appeal court will see that he made the argument that the Crown did not fulfill its fiduciary duty.
"They just put this whole thing on automatic pilot and very few white people would accept that. The government itself changed a relatively similar system used to finance the pension funds in 1999. This judge finds the system is reasonable and therefore he doesn't have to consider the testimony. And it's reasonable, he finds, because the Indian Act says it's OK. So he bases his whole judgment on the Indian Act in regard to monies."
If the Indian Act is supreme then most arguments made in support of Indigenous rights in Canada are doomed to fail, O'Reilly said. But there have been a string of victories at the highest court in the land because that kind of thinking has been discarded, O'Reilly added.
"He's saying the Indian Act prevails over the treaties and that Indian rights really come as a function of the Indian Act and federal legislation. Well, we're back to well before the White Paper days. We tried to get the evidence by ministers about it being colonial, oppressive. That's all in there and the judge even mentions that."
Samson's legal team will challenge that part of the ruling as well.
"We say he's wrong - dead wrong - on his interpretation of the Indian Act," O'Reilly said.
While several former ministers of Indian Affairs and some of Canada's leading investment bankers and financial experts testified on Samson's behalf and criticized the way the Crown handled the Samson oil and gas revenues, the judge ruled that what the Crown did fell within the limits prescribed by the Indian Act.
"What this judge essentially said is the Indian Act is a reasonable way of handling the money. He doesn't discuss how it's reasonable. He just discards some of the most imminent financial people in Canada who testified on behalf of Samson," he said. "And he just says it's not necessary to judge the standards of a trustee because the Indian Act allows them to do whatever they want, gives them full discretion. Well, we're back in the days of the colonial empire here."
Justice Teitelbaum refused to allow the report of the Royal Commission on Aboriginal Peoples into evidence because it was "a political document." O'Reilly said the Supreme Court has relied on it.
O'Reilly said Justice Teitelbaum was visibly uncomfortable during the trial whenever the idea of inherent rights were raised. He argued that the judge's understanding of inherent rights is not consistent with how the federal government's position on the right to self-government has evolved.
"He comes down in his judgment and there's a part where he says there's no inherent right to control their own lands and resources," the lawyer said. "What do you hear in Ottawa? Have you even heard this in the last 15 or 20 years where Ottawa is saying 'You don't have a right to control your own lands and resources?'"
O'Reilly also questions the weight the judge gave to some of the testimony from expert witnesses.
When he appeared for the Crown, University of Calgary history professor Thomas Flanagan was forced under cross-examination to admit that he used sloppy research methods to formulate his opinions on some of the First Nations issues the court was wrestling with. Flanagan is a man who has become a much talked about figure recently because he is an advisor to prime minister-elect Stephen Harper.
"We thought that a lot of his testimony was subjected to a lot of doubt and his credibility was compromised considerably by some of the cross-examination. Well, the judge does rely on him," O'Reilly said. "He relies on Flanagan. He [is critical of], in my view, one of the key witnesses and that is the Cree linguist. Now if you were a judge and you've heard about these differences of concept and perception between the Cree and English, well you'd want to know something about the Cree language wouldn't you? You'd want to know how do they think and how do they conceptualize things like land. This judge went after Professor Wolfart, who speaks a very high Cree. He's not fluent, but he speaks it and he can articulate the Cree words."
O'Reilly speculates that the judge's ruling might have surprised even the Crown, who made an offer to settle just before the judge completely dismissed the Samson claims.
"Why did they offer close to $200 million just before?" the lawyer asked.
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