Athabasca Denesuline [Treaty Harvesting Rights]

The Indian Claims Commission acted on its mandate to inquire into specific claims that have been rejected by Canada on the basis that they are not valid according to the Specific Claims Policy (published by the Department of Indian Affairs in 1982 in a booklet entitled Outstanding Business). This booklet directs that all relevant historical evidence, including evidence that might not be admissible in a court of law, must be taken into account in the assessment of claims.

The claim of the Denesuline arises out of the Government of Canada's denial that the Denesuline have treaty rights north of the 60th parallel....The central question facing the Commission was whether the Government of Canada owes an outstanding lawful obligation to the Denesuline.

The specific issues before the Commission were:

1. Does the geographical scope of Treaties 8 and 10 extend north of the 60th parallel or is it limited to the territory as described in paragraph 6 of the written text of Treaty 8 and paragraph 8 of the written text of Treaty 10?
2. In the alternative, do the claimants have a treaty right to "pursue their usual vocations of hunting, trapping and fishing" beyond the territory as described in paragraph 6 of the written text of Treaty 8 and paragraph 8 of the written text of Treaty 10?
3. Has Canada breached its lawful obligations to the claimants under the Specific Claims Policy by failing to recognize that:
   a) the geographical scope of the treaties extends north of the 60th parallel; or that
   b) the claimants have treaty harvesting rights north of the 60th parallel?

The parties agreed that the Denesuline had used and occupied lands north of the 60th parallel since time immemorial and that they continue to do so today. The Denesuline agreed to sign Treaty 8 only when the Treaty Commissioners assured them that they "would be as free to hunt and fish after the treaty as they would be if they never entered into it." Similarly, they agreed to sign Treaty 10 only when the Treaty Commissioners promised "they were not depriving them of any of the means of which they have been in the habit of living upon heretofore, and … that they had the privilege of hunting and fishing as before." There was no evidence before the Commission that the treaty harvesting rights of the Denesuline were ever expressly limited to the geographic areas defined by the metes and bounds descriptions in the treaties. The Denesuline continued to operate under the assumption that they had treaty rights to hunt, fish and trap north of the 60th parallel until 1989. At that time the Government of Canada advised them, for the first time, that their rights to that portion of their lands were extinguished.

The Commission concluded:

Issue 1: The Geographical Scope of Treaties 8 and 10

The evidence does not support the claimants' submission that the boundaries of Treaties 8 and 10 extend beyond the metes and bounds descriptions to include the traditional lands of the Denesuline. The traditional territory of the Denesuline was not delineated at the time of the signing of the treaties and, for the most part, remains undelineated to this day.

The Denesuline's traditional lands outside the boundaries described in Treaties 8 and 10 were not intended to be "opened for" non-Indian settlement, mining, lumbering, and the such uses at that time. The parties did not intend the boundaries of the treaties to encompass the Denesuline traditional lands north of 60° latitude.

Issue 2: Harvesting Rights beyond the Boundaries of the Treaties

The Text of the Treaties

The language employed in Treaties 8 and 10 is essentially the same. The correct interpretation of the text of the treaties is that the parties intended the right to hunt, fish and trap to apply to all the traditional lands surrendered by the Denesuline.

The Relevant Historical Evidence

• Canada's objective was to secure a specific tract of land for settlement and other purposes; the objective of the Dene was to protect their traditional lifestyle.
  The Denesuline were extremely apprehensive about entering into Treaties for fear that their traditional way of life, including hunting, fishing and trapping, would be jeopardized.
• To assuage the concerns of the Denesuline, oral assurances were given by the Treaty Commissioners that the Denesuline would be "as free to hunt and fish after the Treaty as if they had never entered into it."
• There is no cogent evidence that the Treaty Commissioners at any time told the Denesuline that their right to hunt, fish and trap would be restricted to a specific geographic area.
• It is not a reasonable interpretation of the evidence to say that the Denesuline knowingly and deliberately gave up all their traditional territory in return for certainty of harvesting rights over a smaller area described by the metes and bounds. Further, this was not where they hunted caribou. It is unreasonable to think that a people known as the "caribou eaters" would have agreed to such an agreement.
  While the subsequent conduct of the parties is not conclusive, nonetheless it is consistent with our interpretation of the treaties.

Issue 3: Does Canada Have a Lawful Obligation?

• It is not necessary in the case of "non-fulfillment of a treaty or agreement" to show a "breach" of a lawful obligation before a claim may be considered for negotiation under the Claims Policy. Rather, the claim must disclose an "outstanding lawful obligation."
• We find that Canada has treaty obligations in the matter before us. Canada's lawful obligation must include, at a minimum, the requirement to recognize formally the treaty rights in issue, and to ensure that the rights of the Denesuline are fulfilled.
• In addition to disclosing an outstanding lawful obligation, to be eligible for negotiation a claim must show some loss or damage capable of being negotiated under the Policy.
• Currently, the Specific Claims Policy and process are ill-equipped to deal with the Denesuline's claim as there appears to be no loss or damage capable of being negotiated under the Policy.
• We agree with Canada's submission that this Commission is not entitled to grant declaratory relief. Our mandate, as prescribed by Orders in Council, directs us to inquire into and report on rejected claims and to submit our findings and recommendations to the parties. Declaratory relief is a judicial remedy that is binding on the parties, a relief which we cannot grant.

Recommendation I

The parties should remain mindful of the spirit and intent of the Policy and process, which is to encourage and support the fair negotiation of outstanding claims. This is best done without the application of technical court rules and procedures.

Recommendation II

Outstanding Business does not strictly allow for the negotiation of this claim. However, other processes for negotiation of similar issues have been established by Canada, one of which is described as "Administrative Referral." As soon as possible, the parties should start negotiation of the claimants' grievance pursuant to that process.

Response: In August 1994, the government rejected the recommendations made in the December 1993 report; no response to November 1995 Supplementary Report has been received.

To download the report - PDF

To download the supplementary report - PDF