2019 FC 789, 2019 FC 789

T-238-80 2019 FC 789 Jim Shot Both Sides and Roy Fox, Charles Fox, Steven Fox, Theresa Fox, Lester Tailfeathers, Gilbert Eagle Bear, Phillip Mistaken Chief, Pete Standing Alone, Rose Yellow Feet, Rufus Goodstriker, and Leslie Healy, Councillors of the Blood Band, for themselves and on behalf of the Indians of Blood Band Reserve Number 148; and the Blood Reserve Number 148 ( Plaintiffs ) v. Her Majesty the Queen ( Defendant ) Indexed as: Jim Shot Both Sides v.

Canada Federal Court, Zinn J.—Stand Off, Alberta, May 4-6, 9-11, 16-19, 20, 24-25, 2016; Calgary, May 14-17, 22-25, 28-29, June 4-7, 11-14, 18-20, 25-27 and December 4, 5, 6, 2018; Ottawa, June 12, 2019.

Aboriginal Peoples — Lands — Action by plaintiffs claiming that their reserve (Reserve No. 148 or Blood reserve) not according with land promised by defendant — Territory plaintiffs laying claim to referred to as “Big Claim”, which territory extending west of current plaintiffs’ reserve to former Kootenai River, south to Canada-U.S.A. border — Plaintiffs’ reserve, located in southern Alberta, occupying 547.5 square miles — Treaty No. 7, dated September 22, 1877, made between defendant, other tribes including plaintiffs called Blood Tribe (plaintiffs or Blood Tribe) — Treaty No. 7 promising reserve to plaintiffs — Location of plaintiffs’ reserve set out in Treaty No. 7 but location changed by agreement between parties involved — Defendant making two surveys of area to become plaintiffs’ reserve: first completed in 1882, second in 1883 — Surveys having different boundaries, sizes, population, geographic location — Defendant promising plaintiffs specific reserve known as Treaty Land Entitlement (TLE) — Plaintiffs arguing, in particular, that membership at relevant time being such that promised reserve under TLE larger than provided for under either survey; therefore, that defendant breaching treaty promise, failing in its fiduciary duty to honestly, accurately implement treaty promises — Main issue whether plaintiffs’ action should be allowed — Plaintiffs’ population to be determined for TLE purposes at date of signing Treaty No. 7 (September 22, 1877) — Based on evidence, on balance of probabilities, Blood Tribe population totalling 3 550 at date of Treaty No. 7 for purposes of TLE calculation — As such, under Treaty, plaintiffs entitled to reserve of 710 square miles — With respect to reserve creation, leading authority on reserve creation, Ross River Dena Council Band v.

Canada, Supreme Court of Canada decision, applied in present case — Defendant’s intention to create reserve for Blood Tribe not extinguished by subsequent events relating to geographic relocation of reserve when 1883 Agreement entered into — Evidence showing that reserve created for Blood Tribe before 1883 Agreement; area laid out by 1882 Survey — Reserve could not be reduced in size without obtaining surrender from Blood Tribe — 1883 Agreement not constituting surrender — As to Big Claim, no evidence that defendant or Blood Tribe taking any steps to set apart land having area equal to Big Claim — Therefore, on balance of probabilities, Big Claim not made out — Defendant having number of fiduciary duties to Blood Tribe as result of Treaty No. 7, as amended by agreement — Defendant failing to fulfill some treaty obligations after Blood reserve created in 1882 — Therefore, plaintiffs, on balance of probabilities, proving that defendant breaching fiduciary duty to Blood Tribe in implementing Treaty No. 7; in dealing with plaintiffs subsequent to creation of Blood reserve — Action allowed in part.

Constitutional Law — Aboriginal and Treaty Rights — Plaintiffs claiming that their reserve located in southern Alberta not according with land defendant promising them in 1877 — Defendant arguing action time-barred — In reply, plaintiffs raising constitutional arguments — Claiming that application of provincial limitation acts unconstitutional as it would affect category of “lands reserved for the Indians” which falls under federal government’s jurisdiction under Constitution Act, 1867, s. 91(24) — Provincial limitations laws applying pursuant to Federal Courts Act , s. 39 , which operates to incorporate into federal law provincial limitations period — Therefore, plaintiffs’ submission that unconstitutional to incorporate provincial law into federal law using Federal Courts Act , s. 39 rejected — Plaintiffs also submitting that prior to April 17, 1982, when Constitution Act, 1982, s. 35 coming into effect recognizing existing aboriginal, treaty rights, plaintiffs having no actionable right to enforce defendant’s treaty obligations, that no limitation could run against claim for breach of treaty until becoming actionable — Plaintiffs correctly stating that prior to 1982, properly instructed Canadian court could not entertain their claim that defendant had breached TLE treaty promise — Accordingly, no limitation could commence to run until claim becoming actionable with passage of Constitution Act, 1982, s. 35 .

Practice — Limitation of Actions — In action by plaintiffs (plaintiffs or Blood Tribe) claiming that their reserve not according with land historically promised by defendant, defendant pleading statutory limitation periods, equitable limitations — Crown Liability Act not extinguishing plaintiffs’ ability to bring claim against Crown; having no application to action — Provincial limitations laws applying here pursuant to Federal Courts Acts, s. 39(1) — Not unconstitutional to incorporate provincial law into federal law using Federal Courts Act , s. 39 — Relevant provincial laws applying in present matter those of Alberta — Given time when action commenced, The Limitation of Actions Act , 1970 applying — Six-year limitation period applying to claims of Blood Tribe — Plaintiffs’ claim that defendant breaching its fiduciary duty, claim to reserve established by 1882 Survey, claim to Big Claim (territory plaintiffs claiming) all time-barred — With respect to breach of Treaty Land Entitlement (TLE) treaty promise, Blood Tribe correctly stating that prior to 1982, properly instructed Canadian court could not entertain its claim that defendant had breached TLE treaty promise — Accordingly, no limitation could commence to run until claim became actionable with passage of Constitution Act, 1982, s. 35 — Limitation of Actions Act , 1970, s. 5 providing that action for breach of treaty must be commenced within six years after cause of action arising — In present case, Blood Tribe commencing action two years before cause of action arising — Therefore, Blood Tribe’s claim for breach of TLE promise in Treaty No. 7 not time-barred.

This was an action by the plaintiffs claiming that their reserve (Reserve No. 148 or Blood reserve) does not accord with the land promised by the defendant. The territory the plaintiffs lay claim to is known as the “Big Claim”. The Big Claim territory extends west of the current plaintiffs’ reserve to the former Kootenai River and south to the Canada-U.S.A. border. Reserve No. 148 is in southern Alberta. It is the largest reserve in Canada occupying an area of 547.5 square miles.

Treaty No. 7, made on September 22, 1877, was between the defendant and several other tribes, which included the plaintiffs called the Blood Tribe (plaintiffs or Blood Tribe). Treaty No. 7 promised the plaintiffs and the other tribes involved a reserve. The location of the plaintiffs’ reserve is set out in Treaty No. 7; however, that location was changed by agreement between the plaintiffs and the defendant.

Two other aspects in this action related to the boundaries of the promised reserve. The first aspect related to the surveying of the reserve. The defendant made two surveys of the area that was to become the plaintiffs’ reserve. The first was done in 1882 (the 1882 Survey) and the second was done in 1883 (the 1883 Survey). The 1882 Survey marked out an area of 650 square miles. The 1883 Survey (marking the present reserve) moved the southern boundary and marked out an area of 547.5 square miles.

The plaintiffs asserted that the 1882 Survey, at law, created a reserve and the reduction of 102.5 square miles by the 1883 Survey required that it surrender that land as is provided for in The Indian Act, 1880 . The plaintiffs gave no such surrender and submitted that they were entitled to that land or compensation for the loss of it. The second aspect related to the promised geographic size of the reserve under the formula set out in Treaty No. 7.

The defendant promised the plaintiffs and each of the other tribes under Treaty No. 7 a reserve equal to “one square mile for each family of five persons, or in that proportion for larger and smaller families.” This was the Treaty Land Entitlement (TLE). The reserve described by the 1882 Survey equated to the membership of the plaintiffs being 650 families or 3 250 persons while the reserve described by the 1883 Survey equated to the membership of the plaintiffs being 547.5 families, or 2 738 persons.

The plaintiffs claimed that their membership at the relevant time was such that their promised reserve under the TLE was larger than provided for under either survey. Accordingly, they submitted that the defendant breached this treaty promise and failed in its fiduciary duty to honestly and accurately implement the treaty promises. The defendant meanwhile argued that the reserve size as defined by the 1883 Survey met its TLE obligation under Treaty No. 7 and that the 1882 Survey was a preliminary survey and did not create a reserve.

The defendant also pleaded that no surrender was needed to change the southern boundary and that this action was time-barred by virtue of the Limitations Act (2000) and its precursors. In reply, the plaintiffs submitted that the defendant’s breach of its Treaty obligations to the plaintiffs only became actionable in 1982 with the passage of the Constitution Act, 1982 and therefore the limitation defence had to fail.

The plaintiffs also submitted that the defendant, from at least the date of Treaty No. 7 onwards, as regards the plaintiffs’ proper reserve size and location, breached its fiduciary duty to them and that they suffered a loss of land or were entitled to compensable damages. The main issue was whether the plaintiffs’ action should be allowed. Held , the action should be allowed in part. Under the provisions of Treaty No. 7, the plaintiffs were entitled to a reserve the size of which was determined by reference to its population.

It was entitled to “one square mile for each family of five persons, or in that proportion for larger and smaller families”. This manner of calculating the reserve size remained in effect even though the plaintiffs surrendered their interest in the original reserve described in Treaty No. 7 in exchange for a reserve near Fort Kipp.

With respect to the TLE, it had to be determined what was the relevant time for determining the population of the plaintiffs and what was the plaintiffs’ population at that time.The plaintiffs’ population was to be determined for TLE purposes as at the date of the signing of Treaty No. 7 (September 22, 1877). The best evidence of the plaintiffs’ population in 1877 was found in the annuity payments made in 1881 and 1882 and reports of those at the time. On these figures, the plaintiffs were entitled under the TLE to a reserve of between 680 to 723 square miles.

The determination of the actual population of the plaintiffs in 1877 for the purposes of TLE involved weighing competing factors, exercising judgment and ultimately arriving at a conclusion. Based on the evidence, on a balance of probabilities, there was a population of 3 550 members of the plaintiffs at the date of Treaty No. 7 for the purposes of the TLE calculation. As such, under the Treaty, the plaintiffs were entitled to a reserve of 710 square miles.

The plaintiffs submitted that a reserve was created for them prior to July 2, 1883, the date when the defendant and the Blood Tribe entered into the 1883 Agreement that removed just over a hundred square miles from the Blood reserve. With respect to reserve creation, the leading authority on reserve creation, Ross River Dena Council Band v. Canada , a Supreme Court decision, was applied in this case.

The reserve creation test set out in that decision comprised four factors: the Crown must have an intention to create a reserve; the intention must be possessed by Crown agents holding sufficient authority to bind the Crown; steps must be taken to set apart land and the setting apart must be for the benefit of the Indians; and the Band concerned must have accepted the setting apart and must have started to make use of the lands set apart.

The defendant’s intention to create a reserve for the Blood Tribe was not extinguished by the subsequent events relating to the geographic relocation of the reserve to the Fort Kipp area. The defendant’s intention to create a reserve occurred long before the 1882 Survey. A review of the evidence resulted in a finding that all of the four Ross River factors were met in this case and thus a reserve for the Blood Tribe was created prior to July 2, 1883. The reserve that was set apart for them was that laid out by the 1882 Survey. It could not be reduced in size without obtaining a surrender from the Blood Tribe.

Also, the 1883 Agreement did not constitute a surrender. With respect to the Big Claim, the new reserve that the plaintiffs alleged was established by agreement they reached with the defendant on or about September 1880, it was found that both the defendant and the Blood Tribe intended to create a reserve in the general area of the Big Claim. The defendant did create such a reserve in 1882 or in 1883. However, there was no evidence that the defendant or the Blood Tribe took any steps to set apart land of an area equal to the Big Claim. Therefore, on the balance of probabilities, the Big Claim was not made out.

As regards the breach of fiduciary duty, the defendant had a number of fiduciary duties to the Blood Tribe as a consequence of entering into Treaty No. 7 as amended by agreement including: a duty to provide a reserve for the Blood Tribe in keeping with the provisions of Treaty No. 7; a duty of loyalty and good faith to the Blood Tribe in the discharge of its mandate; a duty to provide full disclosure and to consult with the Blood Tribe with respect to its reserve lands; and a duty to protect and preserve the Blood Tribe’s proprietary interest in the reserve from exploitation.

In implementing Treaty No. 7, as amended by agreement, the defendant had a duty to consult with the Blood Tribe regarding the location of its reserve and the record established that it did so. The defendant, having promised the Blood Tribe a reserve equal to one square mile for each family of five, first had to ascertain the population of the Blood Tribe. There was no evidence how the defendant arrived at the 650-square mile reserve created by the 1882 Survey. It appeared to be based on a Blood Tribe population of 3 250.

Absent evidence as to how the defendant arrived at the population figure it used, and given that the actual population was 3 550, the defendant failed to fulfill its treaty obligation to provide a reserve equal to the TLE. Furthermore, after the Blood reserve was created in 1882, the defendant had a duty to protect and preserve that reserve but it failed in that duty. In April 1882, the defendant leased part of the reserve as defined by the 1882 Survey to third parties under grazing leases.

After discovering that there was an overlap between the reserve and the leased land, the defendant failed to meet its fiduciary duty to the Blood Tribe and acted dishonourably by putting the interests of the white leaseholders ahead of the Blood Tribe’s interests in the land, which it was to preserve

and protect. Therefore, the Blood Tribe, on the balance of probabilities, proved that the defendant breached its fiduciary duty to the Blood Tribe in implementing Treaty No. 7 and in dealing with the plaintiffs subsequent to the creation of the Blood reserve. The statutory limitation periods and equitable limitations pleaded by the defendant were addressed. The Crown Liability Act did not extinguish the plaintiffs’ ability to bring a claim against the Crown and had no application to this action.

A review of this Act showed that proceedings may be brought under it with regards to tort, but there is no mention of fiduciary duty, breach of treaty, or any catch-all provision. The ability to bring an action against the Crown for breach of fiduciary duty arises independent of this statute. As for the application of provincial limitation Acts to this matter, the plaintiffs claimed that this would affect the “lands reserved for the Indians” which falls under the federal government’s jurisdiction under subsection 91(24) of the Constitution Act, 1867 .

Provincial limitations laws apply by virtue of subsection 39(1) of the Federal Courts Act .

Section 39 operates to incorporate into federal law the provincial limitations period in place in the province where the cause of action arose. The plaintiffs’ submission that it was unconstitutional to incorporate provincial law into federal law using

section 39 of the Federal Courts Act was thus rejected. The relevant provincial limitations laws had to be determined. At the time when this action was commenced, the place that had the most substantial connection to the causes of action was the Treaty No. 7 lands of the Blood Tribe, which lands are now in the province of Alberta. Therefore, the relevant provincial laws were those of Alberta. Also, because the plaintiffs commenced this action on January 10, 1980, the limitations legislation in force in Alberta was The Limitation of Actions Act , 1970. While the events giving rise to this action occurred prior to that Act, that Act applied by virtue of

section 3 which provides that the Act’s provision applies to all causes of action whenever arising. The sections of the Limitation of Actions Act , 1970 that were relevant to this proceeding were paragraphs (

e) and (

g) of subsection 5(1) . The plaintiffs’ argument that their breach of fiduciary duty claims were exempt from the six-year limitation periods because of the trusts exceptions in sections 40 and 41 of the Limitation of Actions Act , 1970 was rejected. Neither of these sections applied here since there was no express trust. Indeed, although the relationship is trust-like, reserve land is not held in trust and the defendant was not a trustee described in subsection 41(1) of that Act. Also, contrary to what the plaintiffs argued, lulling did not extend the limitations in this matter.

There was no evidence that the defendant informed the plaintiffs or any First Nation that it could not continue to seek remedies in court but had to deal with the defendant directly. Given that a six-year limitation period was applicable to the claims of the Blood Tribe, it had to be determined when the Blood Tribe discovered or ought to have discovered the facts underlying their claims. The evidence before the Court regarding each claim was examined. With reasonable diligence in 1971, the Blood Tribe would have discovered what it now described as “fraud” by the defendant regarding the TLE.

In conclusion, the plaintiffs’ claim that the defendant breached its fiduciary duty, its claim to the reserve established by the 1882 Survey, and its Big Claim were all time-barred by virtue of the Alberta Limitation of Actions Act , 1970. The Blood Tribe submitted that prior to April 17, 1982, when

section 35 of the Constitution Act, 1982 came into effect recognizing existing aboriginal and treaty rights, it had no actionable right to enforce the defendant’s treaty obligations. Accordingly, they submitted that no limitation could run against a claim for breach of treaty until it became actionable, i.e. on April 17, 1982. The Blood Tribe submitted that its TLE action was a claim for breach of treaty. Although the facts of the underlying cause of action took place in the 1880s, they argued that they had no actionable cause of action for breach of treaty prior to April 17, 1982 when

section 35 of the Constitution Act, 1982 , entrenched treaty rights. The Blood Tribe correctly stated that prior to 1982, a properly instructed Canadian court could not entertain its claim that the defendant had breached the TLE treaty promise. Accordingly, no limitation could commence to run until the claim became actionable with the passage of

section 35 of the Constitution Act, 1982 . Paragraph 5(1) (

g) of the Limitation of Actions Act , 1970 provides that an action for breach of treaty must be commenced within six years after the cause of action arose. In this case, the Blood Tribe commenced this action two years before the cause of action arose. Therefore, the claim of the Blood Tribe for breach of the TLE promise in Treaty No. 7 was not time-barred. STATUTES AND REGULATIONS CITED Alberta Act (The) , 1905, 4-5 Edw. VII, c. 3 (Canada) [R.S.C. 1970, Appendix II, No. 19], ss. 2, 10, 16.

An Act to amend “The Supreme and Exchequer Courts Act”, and to make better provision for the Trial of Claims against the Crown , 50- 51 Vict., c. 16, s. 15. An Ordinance Respecting Limitations of Actions in Certain Cases , R.S.N.W.T. 1898, c. 31. Canadian Charter of Rights and Freedoms , being

Part I of the Constitution Act, 1982 ,

Schedule B, Canada Act 1982 , 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 7, 15. City Act (The) , R.S.A. 1955, c. 42, s. 731 . Constitution Act , 1867 , 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982 , 1982, c. 11 (U.K.),

Schedule to the Constitution Act, 1982 , Item 1) [R.S.C., 1985, Appendix II, No. 5], ss. 35 , 91(24) . Constitution Act, 1982 ,

Schedule B, Canada Act 1982 , 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 32(2), 35, 53, Sch., Item 12. Crown Liability Act , R.S.C. 1970, c. C-38, ss. 11, 24(1). Crown Liability and Proceedings Act , R.S.C., 1985, c. C-50, s. 32 . Exchequer Court Act , R.S.C. 1927, c. 34. Exchequer Court Act , R.S.C. 1958, c. 98.

Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 38. Federal Courts Act, R.S.C., 1985, c. F-7, ss. 38, 39, 57. Federal Courts Rules, SOR/98-106, rr. 52.2, 77, 175, Sch. Game and Fish Act, R.S.O. 1970, c. 186. Indian Act, R.S.C., 1985, c. I-5, s. 88. Indian Act, 1880 (The), S.C. 1880, c. 28, ss. 2 “reserve”, 36, 37. Limitation of Action Act (The), R.S.A. 1922, c. 90, s. 3. Limitation of Actions Act, R.S.A. 1980, c. L-152. Limitation of Actions Act (The), R.S.A. 1955, c. 177. Limitation of Actions Act (The), R.S.A. 1970, c. 209, ss. 3, 5(1), 6, 40, 41. Limitation of Actions Act, 1935 (The), S.A. 1935, c. 8.

Limitations Act, R.S.A. 2000, c. L-12. Limitations Act (The), R.S.O. 1914, c. 75, s. 47. Limitations Act (The), S.S. 2004, c. L-16.1. Manitoba Act, 1870, S.C. 1870, c. 3 (as am. by Canada Act 1982, 1982, c. 11 (U.K.),

Schedule to the Constitution Act, 1982, Item 2)[R.S.C., 1985, Appendix II, No. 8] North-West Territories Act, R.S.C. 1886, c. 50. Order in Council P.C. 1880-0565. Order in Council P.C. 1882-0722. Royal Proclamation, 1763 (The), R.S.C., 1985, Appendix II, No. 1. Statute of Limitations, R.S.B.C. 1960, c. 370, s. 38. The Trustee Ordinance, 1903, Sess. 2, c. 11. TREATIES AND OTHER INSTRUMENTS CITED Jay Treaty (1794). Treaty No. 4 (1874). Treaty No. 6 (1877, 1878). Treaty No. 7 (1877). Treaty No. 8 (1899). Treaty No. 19 (1818). CASES CITED APPLIED: Conohan v.

Cooperators (The), 2002 FCA 60, [2002] 3 F.C. 421; Paradis Honey Ltd. v. Canada (Attorney General), 2015 FCA 89,[2016] 1 F.C.R. 446; R. v. Van Der Peet, (SCC), [1996] 2 S.C.R. 507, (1996), 137 D.L.R. (4th) 289; R. v. Marshall; R.v. Bernard, 2005 SCC 43, [2005] 2 S.C.R. 220; R. v. Sioui, (SCC), [1990] 1 S.C.R. 1025, (1990), 70 D.L.R. (4th) 427;Central & Eastern Trust Co. v. Rafuse, (SCC), [1986] 2 S.C.R. 147, (1986), 31 D.L.R. (4th) 481; Luscar Ltd. v.Pembina Resources Limited, 1994 ABCA 356 , 162 A.R. 35; Ross River Dena Council Band v.

Canada, 2002 SCC 54, [2002] 2S.C.R. 816, affg 1999 BCCA 750, 182 D.L.R. (4th) 116, revg , [1998] 3 C.N.L.R. 284 (Y.K.S.C.); Wewaykum IndianBand v. Canada, 2002 SCC 79, [2002] 4 S.C.R. 245; Williams Lake Indian Band v. Canada (Aboriginal Affairs and NorthernDevelopment), 2018 SCC 4, [2018] 1 S.C.R. 83; Delgamuukw v. British Columbia, (SCC), [1997] 3 S.C.R. 1010,(1997), 153 D.L.R. (4th) 193; Angeletakis v. Thymaras, , [1989] A.W.L.D. 450, 95 A.R. 81 (Q.B.). DISTINGUISHED: Henry v. R. (1905), (CA EXC), 9 Ex. C.R. 417; Lac La Ronge Indian Band v. Canada, 2001 SKCA 109, 206 D.L.R.(4th) 638; Browne v.

Dunn (1893), 1893 CanLII 65 (FOREP), 6 R. 67 (H.L.); Manitoba Metis Federation Inc. v. Canada (AttorneyGeneral), 2013 SCC 14, [2013] 1 S.C.R. 623; Zbryski v. City of Calgary, , 51 D.L.R. (2d) 54 (Alta. Q.B.); R. v. Nixon,

2011 SCC 34, [2011] 2 S.C.R. 566; Dreaver v. The King (1935), 5 C.N.L.C. 92 (Ex. Ct.). CONSIDERED: R. v. Sundown, (SCC), [1999] 1 S.C.R. 393, (1999), 170 D.L.R. (4th) 385; First Nation of Nacho Nyak Dun v. Yukon,2017 SCC 58, [2017] 2 S.C.R. 576; Apotex Inc. v. Shire LLC, 2016 FC 1267, 2017 CLLC 240-002; Mancuso v. Canada (National Healthand Welfare), 2015 FCA 227, 476 N.R. 219; Chippewas of Kettle & Stony Point v. Canada, , 17 O.R. (3d) 381, [1994]4 C.N.L.R. 34 (Gen. Div.); Bentley v. Peppard, , 33 S.C.R. 444; Osoyoos Indian Band v. Oliver (Town), 2001 SCC 85,[2001] 3 S.C.R. 746; Blueberry River Indian Band v.

Canada (Department of Indian Affairs and Northern Development), (SCC), [1995] 4 S.C.R. 344, (1995),130 D.L.R. (4th) 193; Guerin v. The Queen, (SCC), [1984] 2 S.C.R. 335, (1984),13 D.L.R. (4th) 321; Fairford First Nation v. Canada (Attorney General), (FC), [1999] 2 F.C. 48, (1998), 156 F.T.R.1 (T.D.); Restoule v. Canada (Attorney General), 2018 ONSC 7701, 431 D.L.R. (4th) 32; Samson First Nation v. Canada, 2015 FC 836,affd 2016 FCA 223, 487 N.R. 306, leave to appeal to S.C.C. refused [2017] 1 S.C.R. viii.; Canada v. Lefebvre, 1986 ABCA 236, [1987] 1 W.W.R. 481, (1986), 41 D.L.R. (4th) 311; Soar v.

Ashwell, [1893] 2 Q.B. 390 (C.A.); Taylor v. Davies, (UK JCPC), [1920] A.C. 636 (P.C.); Huet v. Lynch, 2000 ABCA 97 , 255 A.R. 359; Musurus Bey v. Gadban and Others,[1894] 2 Q.B. 352 (C.A.); Méthot v. Commission de Transport de Montréal, (SCC), [1972] S.C.R. 387, (1971), 25D.L.R. (3d) 324; Costello v. Calgary (City), 1989 ABCA 194 , 60 D.L.R. (4th) 732, leave to appeal to S.C.C. refused, [1990] 1S.C.R. vi; Ravndahl v. Saskatchewan, 2009 SCC 7, [2009] 1 S.C.R. 181; Regina v. Taylor and Williams, , 34 O.R. (2d)360, 3 C.N.L.R. 114 (C.A.); The Secretary of State for India v.

Kamachee Baye Sahaba, [1859] UKPC 19 (BAILII), [1859] E.R. 836;Nayak Vajesingji Joravarsingji and others v. The Secretary of State for India in Council, [1924] UKPC 51 (BAILII),

(1924) L.R. 51 Ind.App. 357 (P.C.); Hoani Te Heuheu Tukino v. The Aotea District Maori Land Board, [1941] UKPC 6 (BAILII), [1941] A.C. 308 (P.C.);Francis v. The Queen, (SCC), [1956] S.C.R. 618, (1956), 3 D.L.R. (2d) 641; Simon v. The Queen, (SCC), [1985] 2 S.C.R. 387, (1985), 24 D.L.R. (4th) 390; R. v. Agawa, , 65 O.R. (2d) 505, 53 D.L.R. (4th) 101 (C.A.);Fox Lake Indian Band v. Reid Crowther & Partners Ltd., 2002 FCT 630, [2003] 1 F.C. 197. REFERRED TO: Adam v. Canada (Indian Affairs), 2000 ABQB 1017 , 272 A.R. 92; Horseman v.

Canada, 2015 FC 1149; Peepeekisis Band v.Canada, 2012 FC 915, [2012] 4 C.N.L.R. 260, affd 2013 FCA 191, [2014] 1 C.N.L.R. 306; Canada (Attorney General) v. Lameman,2008 SCC 14, [2008] 1 S.C.R. 372, sub nom. Papaschase; Shade v. Canadian Pacific Railway Limited, 2017 ABQB 292 , 54Alta. L.R. (6th) 343; Tolofson v. Jensen; Lucas (Litigation Guardian of) 0of) v. Canada (Attorney General), 2004 ABQB 655 ,365 A.R. 1; J.L.O. Ranch Ltd. v. Logan, , [1987] A.W.L.D. 1244, 81 A.R. 261 (Q.B.); James A. Meek, Jr. v. San JuanResources Inc., 2005 ABCA 448 , 376 A.R. 202; Authorson (Litigation Administrator of) v.

Canada (Attorney General), 2007ONCA 501, 86 O.R. (3d) 321; R. v. White, , 50 D.L.R. (2d) 613, 1964 B.C.J. No. 212 (QL) (C.A.); Regina v. Moses,, [1970] 5 C.C.C. 356, 13 D.L.R. (3d) 50 (Ont. Dist. Ct.); R. v. Wesley, , [1932] 4 D.L.R. 775, [1932] 2W.W.R. 337 (Alta. Sup. Ct.). AUTHORS CITED Canada. Dept. of Indian Affairs and Northern Development. Statement of the Government of Canada on Indian Policy, 1969. Ottawa,1969. Canada. Indian Treaties and Surrenders from 1680 to 1890, Vol. 2, Ottawa: Queen’s Printer, 1871. Canada. Indigenous and Northern Affairs Canada. Dept of Indian Affairs.

Annual report of the Department of Indian Affairs for the yearended 31st December, 1883. Ottawa: the Dept., 1884. Canada. Indigenous and Northern Affairs Canada. Dept of Indian Affairs. Annual report of the Department of Indian Affairs for the yearended 31st December 1882. Ottawa: the Dept., 1883. Canada. Indigenous and Northern Affairs Canada. Dept of Indian Affairs. Annual Report of the Department of Indian Affairs for the yearended 31st December 1881. Ottawa: the Dept., 1882. Canada. Indigenous and Northern Affairs Canada. Dept of Indian Affairs.

Annual report of the Department of Indian Affairs for the yearended 31st December 1880. Ottawa: the Dept., 1881. Dempsey, Hugh A. Red Crow, Warrior Chief. Saskatoon: Western Produce Prairie Books, 1980. Dempsey, Hugh. A. The Great Blackfoot Treaties. Calgary: Heritage House Co. Ltd., 2015. Evans, Robert. The Kid Stays in the Picture. New York, NY: IT Books, 2013. Morris, Alexander. The Treaties of Canada with the Indians of Manitoba and the North-West Territories: including the negociations onwhich they are based, and other information relating thereto. Toronto: Belfords, Clarke & Co., 1880.

Parliament. “Census Return of Resident and Nomadic Indians in the Dominion of Canada, By Provinces” in Sessional Papers, No. 6(1887), at 225. Waters, Donovan W.M. Waters’ Law of Trusts in Canada, 4th ed. Toronto: Carswell, 2012. “Where is the Blood Reservation?”, Macleod Gazette (July 8, 1882). ACTION by plaintiffs claiming that their Reserve (Reserve No. 148), located in southern Alberta, does not accord with the landpromised by the defendant under Treaty No. 7. Action allowed in part.

APPEARANCES Gary A. Befus , Brendan M. Miller , Joanne F. Crook and Paul Reid for plaintiffs. Wayne Malcom Schafer, Q.C. , Marianne Panenka , Bruce Piller , Damon Park , Amber Elliott , Olivia Furlong and Nathan Wiebe for defendant. SOLICITORS OF RECORD Walsh LLP , Calgary, for plaintiffs. Deputy Attorney General of Canada for defendant. The following are the reasons for judgment and judgment rendered in English by Zinn J. : Table of Contents Paragraph I. INTRODUCTION 1 A. Procedural History of this Action 13 B. Canada’s Objections Based on the Pleadings 28 a. Failure to Plead a Breach of Treaty 28 b.

Raising a New Constitutional Question 51 c. Addressing the Constitutional Questions Only in Reply 53 C. Key Individuals 56 II. THE EVIDENCE 57 A. Blood Tribe Oral History Evidence 58 a. Traditional Territory of the Blackfoot Confederacy 62 b. Blood Tribe “Home Base” 66 c. Clans and Leadership and Decision-Making 68 d. Traditional Treaty Making Process 70 e. The Blood Tribe’s Understanding of Treaty No. 7 72 f. Land the Blood Tribe Understood to be Reserved After Treaty No. 7 77 g. Use by the Blood Tribe of the Big Claim Land After Treaty 81 B. Assessing Oral History Evidence 86 C. The Expert Evidence 100 D.

Relevant Historical Background 116 a. Prelude to Treaty No. 7 117 b. Treaty No. 7 Negotiations 125 c. Locating the Blood Reserve and the Red Crow Agreement 144 d. The Land Between the Kootenai and Belly Rivers 167 e. The 1882 Survey of the Blood Reserve 177

f. Grazing Leases 187 g. The 1883 Agreement and the 1883 Survey 196 h. 1888 Tour of the Southern Boundary 206 i. Decision to Move the Southern Boundary 213 III. TREATY LAND ENTITLEMENT (TLE) 220 A. Date for Population Determination 229 B. The Population of the Blood Tribe on September 22, 1877 239 IV. RESERVE CREATION 278 A. Crown Intention 290 B. The Intention Must Be Possessed by Authorized Crown Agents 300 C. Steps to Set Apart Land for the Benefit of the Blood Tribe 301 D. The Band Must Accept the Setting Apart 327 E. Conclusion 340 V. THE BIG CLAIM 343 VI. BREACH OF FIDUCIARY DUTY 359 A.

Canada’s Duty to First Nations 360 B. Duty to Implement the Treaty 369 C. Canada’s Duty to the Blood Tribe After the Reserve Was Created 374 VII. LIMITATIONS DEFENCE 380 A. Application of the Crown Liability Act 381 B. Application of Provincial Limitation Acts to Treaty and Aboriginal Rights 384 C. The Relevant Provincial Limitations Laws 401 D. Alberta Limitations Act 410 E. Trust Exceptions in The Limitation of Actions Act , 1970 414 F. Lulling / Abuse of Process 427 G. Discovery or Discoverability of the Facts Underlying the Claims 437 a. The Big Claim 443 b. The 1882 Reserve Claim 447 c. The TLE Claim 452 d.

Fraudulent Concealment 455 H. Equitable Defences 465 I. Conclusion 467 VIII. BREACH OF TREATY AS AN ACTIONABLE CAUSE OF ACTION 469 IX. CONCLUSION 511 JUDGMENT APPENDICES A. Map of the Blood Tribe Reserve and the Big Claim Area B. Map of the Blood Tribe Reserve and the Treaty No. 7 Area

C. Map of Area to the South of the Blood Reserve D. Copy of Treaty and Supplementary Treaty No. 7, September 22 and December 4, 1877 (Treaty No. 7 ) E. Blackfoot, Blood, and Peigan Populations According to Treaty Annuity Paylists, 1877-1890 F. Agreement Releasing Blood Tribe Interest in Treaty No. 7 Reserve dated September 25, 1880 (Red Crow Agreement ) G. Map of Grazing Leases Showing the Location of Leases 13 and 17 and Nelson’s 1882 Southern Boundary as Identified by Ms. Robidoux H.

July 2, 1883 Agreement Whereby the Blood Tribe Surrenders its Interest in the Land “We know parts of the land, as we know each other as relatives. We are kin with the land.” Wilton Goodstriker I. INTRODUCTION [ 1 ] Blood Tribe Reserve No. 148 (the Blood Reserve or Reserve) is in southern Alberta. It is the largest reserve in Canada occupying an area of 547.5 square miles. [1] It is the reserve of the plaintiffs, the Kainai, [2] or the Blood Tribe. [ 2 ] The northern boundary of the Blood Reserve is at the confluence of the St. Mary [3] and Belly [4] Rivers, near where old Fort Kipp was located.

The Reserve extends south and west, bounded by the Belly River and the St. Mary River to an east west line about 14 miles north of the Canada-U.S. border. It lies just north of Cardston, Alberta, a town settled in 1887 by members of The Church of Jesus Christ of Latter-day Saints (the Mormons) who moved there from the Territory of Utah, apparently to escape restrictions on polygamous relationships. [ 3 ] Treaty No. 7, made on September 22, 1877, was between Canada, the tribes of the Blackfoot Confederacy, the Stoney, and the Sarcee Indians.

The Blackfoot Confederacy (the Confederacy) was comprised of three tribes: the Siksika (Blackfoot), Kainai (Blood), and Piikani (Peigan). Treaty No. 7 promised the Blood Tribe and each of the others, a reserve. The location of the Blood Tribe reserve is set out in Treaty No. 7; however, that location was changed by agreement between the Blood Tribe and Canada. [ 4 ] The Blood Tribe claims that its Reserve does not accord with the land promised by Canada. The territory it lays claim to is known to the Blood Tribe as the “Big Claim”.

The Big Claim territory extends west of the current Blood Reserve to the former Kootenai River [5] (now the Waterton River) and south to the Canada-U.S.A. border. It includes Cardston and a part of Waterton Lakes National Park. [ 5 ] There are two other aspects in this action to the claim of the Blood Tribe to land. They too relate to the boundaries of the promised reserve. [ 6 ] The first aspect relates to the surveying of the reserve. Canada did two surveys of the area that was to become the Blood Reserve. The first was done in 1882 (the 1882 Survey) and the second was done in 1883 (the 1883 Survey).

The 1882 Survey places the southern boundary of the reserve at an east-west line about 9 miles north of the Canada-U.S. border, marking out an area of 650 square miles. The town of Cardston falls within the area of the 1882 Survey. The 1883 Survey (marking the present Reserve) moved the southern boundary 5 miles north, marking out an area of 547.5 square miles. The Blood Tribe asserts that the 1882 Survey, at law, created a reserve and the reduction of 102.5 square miles by the 1883 Survey required that it surrender that land as is provided for in The Indian Act , 1880, S.C. 1880, c. 28 ( The Indian Act , 1880).

The Blood Tribe gave no such surrender. It therefore submits that it is entitled to that land or compensation for the loss of it. [ 7 ] The second aspect relates to the promised geographic size of the reserve under the formula set out in Treaty No. 7. Canada promised the Blood Tribe and each of the other tribes under Treaty No. 7, a reserve equal to “one square mile for each family of five persons, or in that proportion for larger and smaller families.” This is the Treaty Land Entitlement (TLE).

The reserve described by the 1882 Survey equates to the membership of the Blood Tribe being 650 families or 3 250 persons. The reserve described by the 1883 Survey equates to the membership of the Blood Tribe being 547.5 families, or 2 738 persons. The Blood Tribe says that its membership at the relevant time was such that its promised reserve under the TLE is larger than provided for under either survey.

Accordingly, it says that Canada breached this treaty promise, and failed in its fiduciary duty to honestly and to accurately implement the treaty promises. [ 8 ] For its part, Canada says that the reserve size as defined by the 1883 Survey, the current Reserve, meets its TLE obligation under Treaty No. 7, and that the 1882 Survey was a preliminary survey and “did not create a reserve”.

Under its theory of the case, no surrender was required to change the southern boundary described in the 1882 Survey to that in the 1883 Survey. [ 9 ] Canada pleads that this action is time-barred by virtue of the Limitations Act , R.S.A. 2000, c. L-12 ( Limitations Act 2000), and its precursors, as made applicable by

section 39 of the Federal Courts Act , R.S.C., 1985 c. F-7 ( Federal Courts Act ), and

section 11 of the Crown Liability Act , R.S.C. 1970, c. C-38 ( Crown Liability Act ), and their respective precursors.

[ 10 ] In reply, the Blood Tribe submits that Canada’s breach of its Treaty obligations to the Blood Tribe only became actionable in 1982 with the passage of the Constitution Act, 1982 ,

Schedule B, Canada Act 1982 , 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44] ( Constitution Act, 1982 ). It therefore submits that Canada’s limitation defence must fail. It further submits that at law, the 1882 Survey created a reserve and under The Indian Act , 1880, a surrender was required to effect a change in 1883.

It also submits that Canada from at least the date of Treaty No. 7 onwards, as regards the proper Blood Tribe reserve size and location has breached its fiduciary duty to it, and that the Blood Tribe has suffered a loss of land or is entitled to compensable damages. [ 11 ] If there is a finding of liability on any of the claims asserted by the Blood Tribe, the issue of remedy will be determined later in Phase III of this action. [ 12 ] Appendix A is a map showing the current boundaries of the current Blood Reserve, and the Big Claim area.

Appendix B is a map showing the current Blood Reserve and the area covered by Treaty No. 7. Appendix C is another map showing the location of the timber limit, marked as Blood No. 148A, the southern limit of the Reserve and some of the geographic features including Mountain View and Lee (or Lee’

s) Creek which are referred to in the reasons. Appendix D is a copy of the text of Treaty No. 7. A . Procedural History of this Action [ 13 ] The Blood Tribe commenced this action by statement of claim filed January 10, 1980. Canada filed its statement of defence on April 3, 1980.

Nothing much happened until the fall of 1996. [ 14 ] On August 7, 1996, the Blood Tribe filed a motion confirming that this action would be continued in Federal Court, notwithstanding that it had advanced its land entitlement claim under the Specific Claims Policy of the Department of Indian Affairs and Northern Development. [ 15 ] Canada rejected the land entitlement claim in November 2003, taking the position that no outstanding obligation existed with respect to the TLE claim. The Blood Tribe then formally requested the Indian Claims Commission (ICC) to conduct an inquiry into its rejected claim.

In a decision dated March 30, 2007, the ICC made two recommendations to the parties. First, it recommended that the “claim for the Big Claim lands constituting the reserve not be accepted”. Second, it recommended to the parties that “the claim that the 1882 Nelson survey established the Blood Tribe reserve be accepted” as it established the reserve and a surrender was required to move the southern boundary as happened in 1883. The findings and recommendations of the ICC are not binding on the parties or this Court. [ 16 ] The parties could not agree on the claims and so reactivated this action.

It was case-managed and the trial of this action divided into three phases. As noted, the action was bifurcated between liability and remedy. [ 17 ] Phase I was held on the Blood Reserve in May 2016, for the purpose of receiving oral history evidence from members of the Blood Tribe. This portion of the evidence was taken some two years before the remainder of the evidence, as the Elders who had oral history evidence were aging. [ 18 ] Phase II was held at the Federal Court in Calgary, Alberta, in May and June 2018, to hear fact and expert witness evidence.

The parties then made extensive written submissions followed by oral submissions in Calgary, Alberta, in December 2018. Phase III, dealing with remedy, will be held in Calgary, Alberta, at a future date if the Court finds that Canada is liable to the Blood Tribe for any of the claims in this action. [ 19 ] The statement of claim was amended by an order dated February 24, 1999.

In an affidavit filed in support of its motion, a solicitor for the Blood Tribe attested that the amendment was required, as “the proclaiming of the new Limitations Act in Alberta on March 1, 1999 has necessitated that the Plaintiffs review the Statement of Claim to ensure that their rights are fully protected”.

She further attests that there “have been considerable developments in the law since the filing of the original Statement of Claim in 1980 and the Plaintiffs have conducted research that has resulted in the submission of the Specific Claim in 1996” and the proposed amended statement of claim “reflects those changes and research”. Canada did not oppose the amendment. [ 20 ] On April 11, 2016, the Blood Tribe served and filed a notice of constitutional question questioning “the constitutional applicability to the within matter of the Limitations Act , R.S.A. 2000 Ch.

L-12 , Limitation of Actions Act , R.S.A. 1980 cL-15, Limitation of Actions Act , R.S.A. 1970, c. 209 , Limitation of Actions Act , S.A. 1935, c. 8 or any of the preceding Acts passed by the Provincial Legislature of Alberta dealing with limitation periods to bring legal claims before the courts as they relate to Indians, and Lands reserved for Indians [ sic ]”. [ 21 ] In the alternative, the plaintiffs also challenged the constitutional validity of

section 39 of the Federal Courts Act (and its predecessors), and

section 32 of the Crown Liability and Proceedings Act , R.S.C., 1985, c. C-50 (and its predecessors), insofar as they purport to incorporate provincial laws that would bar claims as they relate to “Lands reserved for the Indians” as unlawful subdelegation, in breach of Canada’s constitutional duty to consult First Nations in matters affecting them, and in breach of

section 35 of the Constitution Act, 1982 . [ 22 ] The focus of the plaintiffs’ submission on the constitutional questions they raise is whether their claims can be “subject to a provincial limitation period, as a provincial limitation statute cannot deprive the Bloods of ‘lands reserved for Indians’ once a reservation is created”. [ 23 ] In its written closing, the Blood Tribe submitted that it had proved three causes of action on the evidence: (

a) an actionable breach of treaty obligation; (

b) the creation of a reserve in law prior to July 2, 1883, and the illegal taking of part of it in 1883; and (

c) a breach by Canada of its fiduciary duty to the Blood Tribe. [ 24 ] In its written reply submissions, the Blood Tribe addressed the constitutional questions and further submitted in response to Canada’s limitation defence that “no civil cause of action in breach of treaty legally existed until April 17, 1982 and therefore no limitation period can run for that cause of action until that time”.

[25] Canada raises two objections to this challenge. First, it submits that because the Blood Tribe has not made any submission on thequestions raised in its notice of constitutional question in its initial written submissions “the Court should decline to hear any submissionson this issue”.

Second, it submits that the Court should decline to hear any constitutional issues raised in the reply or in oral submissionsthat are not included in the notice of constitutional question. [26] Canada also submitted that the Blood Tribe had not pleaded a claim for breach of treaty in the amended statement of claim, andthus that cause of action was not properly before the Court.

It says that the recent claim of breach of treaty coupled with the submissionthat prescription and limitations do not run against such claims prior to April 17, 1982, would “certainly create undue hardship andprejudice” to Canada. [27] When these concerns were raised by Canada in its oral submissions, Canada was provided with an opportunity to file written sur-reply submissions addressing the plaintiffs’ reply submissions on the constitutional questions, and on whether prescription andlimitations run against a claim for breach of treaty before April 17, 1982. Canada filed its sur-reply on January 30, 2019.

The plaintiffssay that Canada made some “impermissible” arguments and asked to file a brief sur-sur-reply of their own. Upon review, I concludedthat there was nothing impermissible in Canada’s sur-reply submissions and refused the motion. B. Canada’s Objections Based on the Pleadings a.

Failure to Plead a Breach of Treaty [28] I will first address Canada’s submission that the Blood Tribe failed to plead breach of treaty as a cause of action and thereforethis cause of action is not now open to the plaintiffs. [29] In their memorandum, the plaintiffs submit that their original statement of claim “was amended on February 24, 1999 to includes. 35 of the Constitution Act, 1982 and breach of treaty thereunder at paragraph 7 of the Amended Statement of Claim”. That paragraphreads as follows: The members of the Blood Tribe have Aboriginal and Treaty rights which are constitutionally protected by

section 35 of the ConstitutionAct, 1982. [30] It is questionable whether the Blood Tribe by amending its pleading as it did, pleaded breach of treaty as a legal cause of action;however, as explained below, I find that there was no requirement that it do so. The original statement of claim was sufficient to permit itto make the submission that Canada was in breach of its treaty obligations. [31] Canada, in my opinion, takes a far too narrow view of the current state of the law of pleadings.

One will not find the words“breach of treaty” in the amended statement of claim; however, that does not entail that the claim does not include a claim for breach oftreaty, and I find that it does. [32] The plaintiffs in 1980 pleaded the treaty and the alleged breach regarding its promised reserve size in the statement of claim.These alleged breaches were characterized as constituting a breach of contract on the premise that Treaty No. 7 is a contract: In the alternative, the Plaintiffs claim that the said Treaty Number 7 and the said amendment to Treaty Number 7 entered into on or about the 2nd day of July, A.D. 1883, constitute contracts between the Blood Band and the Defendant.

The Plaintiffs claim that theDefendant, its predecessors in title and agents and/or servants for the time being have committed and continue to commit breaches of thesaid contracts in that they failed to accurately calculate the size of the said Reserve Number 148 as per the said contract in that the saidsize of the Reserve 148 did not correspond to previously existing population figures as shown in the 1881 and 1882 Treaty pay lists andwas not substantiated by an official census or other accounting taken at the time of the execution of the said amended Treaty or at thetime of the 1883 survey. [33] Although this pleading characterizes these material facts as constituting a breach of contract, the pleading is relevant because itquite clearly put Canada on notice that the action related to the promised reserve size in Treaty No. 7, and the allegation that the size ofreserve the Blood Tribe was given failed to meet that obligation.

If that was not sufficient, at the opening of Phase I, on May 4, 2016,counsel for the Blood Tribe stated: This trial is about an unfulfilled treaty promise made by Canada to the Blood Tribe. The treaty promise was made to set aside a reservein the place according to their desire of a size representing their lawful entitlement. That’s what this case is about. [34] Canada understood that the Blood Tribe’s action was grounded on alleged breaches of Treaty No. 7. This is clear from Canada’swritten submission at paragraph 58.

It wrote, “It is important to note that in the original Statement of Claim, in paragraphs 12 through 14,the Plaintiffs asserted their claim based on treaty obligations”. [35] The plaintiffs’ transition in seeing the matter as a breach of contract to a breach of treaty is unexplained. However, it is noted thatin Henry v. R. (1905), (CA EXC), 9 Ex. C.R. 417 (Henry), the Exchequer Court found it had jurisdiction to adjudicateon a Petition of Right filed by an Indian Band, alleging that a sum of money granted under a treaty was withheld by Canada and shouldbe credited to its accounts.

The Court did so on the basis that the treaty was a contract, observing [at page 446]: “as their right theretorests upon the treaty or contract between the Crown and them, and upon The British North America Act, 1867, the court has, I think,jurisdiction so to declare” (emphasis added). I add that the question of the Court’s jurisdiction does not seem to have been raised byCanada in that case. [36] It has only been more recently that courts have recognized that treaties are not, per se, contracts. In R. v.

Sundown, (SCC), [1999] 1 S.C.R. 393, (1999), 170 D.L.R. (4th) 385, at paragraph 24, the Supreme Court of Canada stated: Treaties may appear to be no more than contracts. Yet they are far more. They are a solemn exchange of promises made by the Crownand various First Nations. They often formed the basis for peace and the expansion of European settlement. In many if not most treaty

negotiations, members of the First Nations could not read or write English and relied completely on the oral promises made by theCanadian negotiators. There is a sound historical basis for interpreting treaties in the manner summarized in Badger. Anything elsewould amount to be a denial of fair dealing and justice between the parties. [Emphasis added.] [37] Similarly, in First Nation of Nacho Nyak Dun v.

Yukon, 2017 SCC 58, [2017] 2 S.C.R. 576, at paragraph 37, the Supreme Courtof Canada stated: Paying close attention to the terms of a modern treaty means interpreting the provision at issue in light of the treaty text as a whole andthe treaty’s objectives (Little Salmon, at para. 10; Moses, at para. 7; ss. 2.6.1, 2.6.6 and 2.6.7 of the Final Agreements; see also theInterpretation Act, R.S.C. 1985, c. I-21, s. 12).

Indeed, a modern treaty will not accomplish its purpose of fostering positive, long-termrelationships between Indigenous peoples and the Crown if it is interpreted “in an ungenerous manner or as if it were an everydaycommercial contract” (Little Salmon, at para. 10; see also D. Newman, “Contractual and Covenantal Conceptions of Modern TreatyInterpretation” (2011), 54 <I>S.C.L.R.</I> (2d) 475).

Furthermore, while courts must “strive to respect [the] handiwork” of the parties toa modern treaty, this is always “subject to such constitutional limitations as the honour of the Crown” (Little Salmon, at para. 54).[Emphasis in original.] [38] Canada in its memorandum notes, “‘breach of treaty’ is a phrase that is commonly used in more recent jurisprudence”. While thephrase “breach of treaty” was not in use when this action commenced in 1980, it was more widely used when the plaintiffs amended theirclaim; however, they did not change the allegation of a breach of contract to a breach of treaty.

In my view, this is not fatal to theplaintiffs’ position, nor even material to the action as pleaded, because in this Court one need plead only the material facts, not the legalconsequences of those facts. [39] An illustration of this proposition may be found in Conohan v. Cooperators (The), 2002 FCA 60, [2002] 3 F.C. 421 (Conohan),at paragraphs 14 and 15, where the Federal Court of Appeal considered whether the failure to plead a defence was fatal when thedefendant later tried to rely upon it. It found that it was not, provided the party opposite was not taken by surprise: ….

Moreover, there can be no serious suggestion that because it was not expressly pleaded or listed in the order of the Prothonotary, theappellants were taken by surprise and thereby prejudiced in their introduction of evidence or otherwise in the prosecution of their claimsat trial. Rule 174 requires a party to plead “a concise statement of the material facts on which the party relies”, which is a fundamental principleof pleading. In my view, the facts touching on the Clause 16 defence are few and straightforward.

The respondent sufficiently pleadedthat because Gaudet had not paid anything to the appellant Conohan in respect of his liability arising out of the collision Gaudet was not,by reason of Clause 16, entitled to be paid anything under the policy. Even if it could be said that the respondent did not plead the “payto be paid” requirement of Clause 16 but only the other defences listed in the Prothonotary’s order, in my view this did not prevent therespondent from relying on that requirement.

As Lord Denning M.R. explained in Vandervell’s Trusts (No. 2), In re, [1974] Ch. 269(C.A.), at pages 321-322: It is sufficient for the pleader to state the material facts. He need not state the legal result. If, for convenience, he does so, he is not boundby, or limited to, what he has stated. He can present, in argument, any legal consequence of which the facts permit. [Emphasis added.] [40] In my view, this reasoning applies when a plaintiff fails to plead a cause of action that it later wishes to rely upon.

One must lookat the material facts pleaded, not the terminology used. [41] Prothonotary Tabib recently applied Conohan when considering a motion to strike. In Apotex Inc. v. Shire LLC, 2016 FC 1267,2017 C.L.L.C. 240-002, at paragraph 6, she comments: The parties may, but are not required to raise points of law in their pleadings. Even if they do, neither the parties nor the Court arebound by the legal result or legal label pleaded.

The party is free to argue and the Court is free to rule on any legal consequencesupported by the facts pleaded (Conohan v Cooperators, 2002 FCA 60 at para 15). [Emphasis added.] [42] To the same effect is a recent decision of the Federal Court of Appeal in Paradis Honey Ltd. v. Canada (Attorney General), 2015FCA 89, [2016] 1 F.C.R. 446 (Paradis Honey), at paragraphs 113–114: A statement of claim must contain allegations of material facts sufficient to support a viable cause of action: Federal Courts Rules,SOR/98-106, rule 174.

Plaintiffs need not plead the particular legal label associated with a cause of action: rule 175; see also Cahoon v.Franks, (SCC), [1967] S.C.R. 455 at pages 458–459. Similarly, plaintiffs who choose to use a particular legal label arenot struck out just because they chose the wrong label: Sivak v. Canada, 2012 FC 272, 7 Imm. L.R. (4th) 247, at paragraph 20; J2 GlobalCommunications Inc. v. Protus IP Solutions Inc., 2008 FC 759, 330 F.T.R. 176, at paragraphs 33–36; Johnson & Johnson Inc. v. BostonScientific Ltd., 2004 FC 1672, [2005] 4 F.C.R. 110, at paragraph 54. ….

Sometimes the pleading gives rise to more than one cause of action. It all depends on the substance of the pleading, not the labels. AsLord Denning M.R. explained in White & Ors v. Vandervell’s Trustees Ltd. (No. 2), [1974] EWCA Civ. 7 (BAILII), [1974] Ch. 269, atpages 321–322: It is sufficient for the pleader to state the material facts. He need not state the legal result. If, for convenience, he does so, he is not boundby, or limited to, what he has stated. He can present, in argument, any legal consequence of which the facts present. [Emphasis added.] [43] The Federal Court of Appeal in Mancuso v.

Canada (National Health and Welfare), 2015 FCA 227, 476 N.R. 219, at paragraph16, explained that pleadings are to allow the other side to prepare its defence and prevent prejudice: It is fundamental to the trial process that a plaintiff plead material facts in sufficient detail to support the claim and relief sought. As thejudge noted “pleadings play an important role in providing notice and defining the issues to be tried and that the Court and opposingparties cannot be left to speculate as to how the facts might be variously arranged to support various causes of action.”

[44] In addition to the reference noted previously at paragraph 9 of the amended statement of claim, the Blood Tribe says that itentered into Treaty No. 7 relying on Canada’s representations and promises. These representations and promises include those set out inTreaty No. 7 itself. They say that Canada breached these representations and promises, and in paragraph 36 provide “some particulars ofthe said breach or breaches”. These facts as pleaded, in my view, are sufficient to support an action for breach of treaty. [45] Canada is not prejudiced by this cause of action being raised.

It led evidence at trial and made submissions that Canada fulfilledall of its treaty obligations. [46] Canada’s further submission on the failure to plead the breach of treaty is that it was taken by surprise by the plaintiffs’submission that no limitation period runs in an action for breach of treaty until

section 35 of the Constitution Act, 1982, came into effecton April 17, 1982. The plaintiffs’ submission will be analyzed when discussing Canada’s limitations defence. [47] For present purposes, it is sufficient to note first that the plaintiffs pleaded that provision in its amended statement of claim, andCanada consented to that amendment. Second, rule 175 of the Federal Courts Rules, SOR/98-106 (Federal Courts Rules), provides thata party may raise any point of law in a pleading, but it is not required. The bare pleading that “members of the Blood Tribe haveAboriginal and Treaty rights which are constitutionally protected by

section 35 of the Constitution Act, 1982” might not alert Canada tothe consequences now asserted by the Blood Tribe.

However, Canada made no inquiries then as to why this amendment was necessary,nor did it apparently seek an explanation as to its impact on this action and Canada’s limitation defence before consenting to theamendment. [48] Any prejudice relating to the intersection of its limitations defence with the claim that it cannot have application to a claim ofbreach of treaty prior to the Constitution Act, 1982, was cured when Canada was permitted to file sur-reply submissions. [49] Aside from these considerations, where there is no prejudice to Canada, it is my view that a First Nation must be accorded somelatitude and its pleadings not read so finely that legitimate complaints and grievances are dismissed by courts without adjudication.

Inpart, this is because the field of Aboriginal litigation is relatively recent and is constantly evolving. Indeed, the Court’s own research hasnot found a pleading claiming a “breach of treaty” as a unique cause of action prior to the 1990s. An early example of a claim whichappears to bring a breach of treaty claim using those words is Chippewas of Kettle & Stony Point v. Canada, , 17 O.R.(3d) 381, [1994] 4 C.N.L.R. 34 (Gen. Div.)).

It involves a motion for a certificate of pending litigation, and the Court mentions theclaims for money damages for “‘breach of fiduciary duty, negligence, breach of Treaty Rights and/or breach of trust’”. [50] For these reasons, I reject Canada’s submission that the alleged breach of treaty is not properly before the Court. b.

Raising a New Constitutional Question [51] I turn next to Canada’s submission that the Blood Tribe has improperly raised in reply a new constitutional question withoutproviding the Attorneys General with notice as required by the Federal Courts Act. [52] The Blood Tribe, in my view, has not raised any new constitutional question in its written reply that would trigger therequirement in

section 57 of the Federal Courts Act that it serve and file a notice of Constitutional Question. The “new” submission itmakes is that no limitation can run as against a cause of action for breach of treaty until after

section 35 of the Constitution Act, 1982came into force because the cause of action had not yet arisen. This submission does not raise the “constitutional validity, applicability oroperability of

an Act of Parliament”.

Section 57 of the Federal Courts Act is not engaged. c. Addressing the Constitutional Questions Only in Reply [53] Canada objects to the Court considering the constitutional issues raised by the Blood Tribe because it made its submissions forthe first time in reply. [54] The notice of Constitutional Question is required in order to put the Attorneys General on notice that the question stated is to beraised and to permit them an opportunity to put whatever evidence they see fit before the Court.

Canada had that opportunity. [55] Moreover, the question of whether the limitation defence pleaded by Canada only applies to a breach of treaty claim after theConstitution Act, 1982, because a breach of treaty was not an actionable claim prior to that date, is a question that arises in response toCanada’s limitation defence. I see nothing improper in the Blood Tribe waiting to respond to Canada’s limitation defence with itssubmission that these provisions do not apply to it in the case before the Court. In any event, as noted, Canada was permitted to file sur-reply submissions on the issue.

The Court therefore has had the benefit of fulsome submissions from both parties on the issue. C. Key Individuals [56] As an aid to the reader, I have set out the names and a brief description of some of the key individuals involved in the making of Treaty No. 7 and the creation of the Blood Reserve.[6] James Bird aka Jimmy Jock (Bird): Bird was of “mixed blood” and was originally employed by the Hudson’s Bay Company as a fur-trader and interpreter. He lived among the Blackfoot tribes for many years and was considered proficient in their language.

He was aninterpreter at the Lame Bull Treaty in the U.S., and in 1877, he was an interpreter at Treaty No. 7. Crowfoot aka Isapo-Muxika (Crowfoot): Crowfoot was a Blackfoot Chief. He was born into the Blood Tribe but after his father died,his mother married a Blackfoot man, and he was raised in the Blackfoot Tribe. As a chief, he was among the first to welcome the North-West Mounted Police (NWMP) and their efforts to stem the whiskey trade. Crowfoot was the principal First Nation spokesperson at themaking of Treaty No. 7. Lief Crozier (Crozier): Crozier was appointed as an officer of the NWMP in 1873.

He was promoted and was a Superintendent of theNWMP by 1876. He was a witness to Treaty No. 7 in 1877.

Sir Cecil Edward Denny (Denny): Denny was a member of the NWMP until 1881. He was present at Blackfoot Crossing and signed Treaty No. 7 as a witness and assisted in the initial Treaty annuity payments. He was involved in a scandal that obliged him to resign from the force in June of 1881, having been charged with having “criminal connection” with Victoria Robinson, the wife of Constable Percy Robinson (the same man involved in paying annuities to the Bloods). Edgar Dewdney appointed Denny Indian Agent in October 1881. His authority was throughout the Treaty No. 7 reserves.

Edgar Dewdney (Dewdney): Dewdney was a surveyor in the early 1860s. In May 1879, he was appointed by Sir John A. Macdonald as Indian Commissioner of the North-West Territories. In December 1881, he succeeded David Laird as Lieutenant Governor (while also continuing as Indian Commissioner). Elliott Torrance Galt (Galt): Galt was the son of Alexander Tilloch Galt, one of the fathers of confederation. He was a businessman and politician. In 1879, he was made secretary and clerk to Dewdney, newly appointed Indian Commissioner of the North-West Territories. He later became Assistant Commissioner to Dewdney.

He was said to have recognized the investment potential of southern Alberta, especially the coalfields. David Laird (Laird): Laird was Minister of the Interior and Superintendent General of Indian Affairs under Prime Minister Alexander Mackenzie from 1873 to 1876. He then served as the Lieutenant Governor of the North-West Territories from October 1876 to 1881, where he was responsible for Indian Affairs. In 1898, he was appointed Indian Commissioner for Manitoba and the North-West Territories by the Laurier government.

Laird played a significant role in the negotiation of Treaty No. 4 (1874), Treaty No. 6 adhesions (1877, 1878), Treaty No. 7 (1877), and Treaty No. 8 (1899). Jean L’Heureux (L’Heureux): L’Heureux attended a seminary in Québec and studied for the priesthood but was expelled, allegedly when it became known that he was homosexual. He travelled west passing himself off as a Jesuit Priest, and joined with the Blackfoot. In 1876 on behalf of the Blackfoot tribes, he wrote to Canada seeking a treaty. He signed Treaty No. 7 as a witness.

Sir John Alexander Macdonald (Macdonald): Macdonald was a prominent Canadian politician. He was Prime Minister from 1867 to 1873 and 1878 to 1891. He also was Minister of the Interior from 1878 to 1883 and Superintendent General of Indian Affairs from 1878 to 1887. James Farquharson Macleod (Colonel Macleod): Colonel Macleod accepted a commission as Superintendent and Inspector in the NWMP. Beginning in 1874, he travelled to Fort Macleod to suppress the whiskey trade. He was promoted to Commissioner of the NWMP in June 1876 by Prime Minister Mackenzie.

He and Laird were appointed Commissioners to negotiate Treaty No. 7 in 1877. He resigned from the NWMP in 1880 and continued in a judicial role as a magistrate in the Bow River area. Norman Thomas Macleod (Agent Macleod): Agent Macleod was Colonel Macleod’s older brother and was Indian Agent from 1880 to 1881. Alexander Morris (Morris): Morris was a member of Parliament and cabinet minister in the first Macdonald government.

In 1872, he served as the first chief justice of the Court of Queen’s Bench in Manitoba for a few months prior to being sworn in as Lieutenant Governor of Manitoba and the North-West Territories in December. He served in that role for five years. William B. Pocklington (Pocklington): Pocklington was a member of the NWMP from 1877 to 1880, and Indian Agent from 1884 to 1891. Jerry Potts (Potts): Potts was an interpreter. His mother was a member of the Blood Tribe. He was an interpreter when the NWMP and Macleod first met with Crowfoot to discuss the whiskey traders.

He was present at the negotiations of Treaty No. 7. He was known to abuse alcohol throughout his life. Red Crow aka Mékaisto, Mekasto, Mikasto (Red Crow): Red Crow was a Chief of the Blood Tribe at the time of signing Treaty No. 7. Also signing Treaty No. 7 as a Blood Chief was Rainy Chief. When Rainy Chief died, Red Crow became the sole leader of the Blood Tribe. Hugh Dempsey writes of him in the Dictionary of Canadian Biography: “A warrior at heart, Red Crow had not accepted dependence upon the government and had encouraged farming, ranching, and education as means for his people to become self- sufficient.

He instilled within the Bloods an independence and pride which made them subservient to no one, not even the white man”. Lawrence Vankoughnet (Vankoughnet): Vankoughnet was first employed by the Department of Indian Affairs as an Indian Agent and later was promoted to Deputy Superintendent General, Indian Branch, Department of the Interior, from 1874 to 1893. II. THE EVIDENCE [ 57 ] The parties entered more than 2 300 exhibits at trial.

Most are letters, reports, orders in council, maps, and journal entries dating to the late 1800s. [7] These documents provide Canada’s account because representatives of the Crown wrote them. They detail dealings with the Blood Tribe and others. I have tried to keep in mind that in some instances the authors, when writing to their superiors, may have been drafting their reports in a light favourable to themselves. At the relevant time, the Blood Tribe had no written language and wrote no documents that tell their side of the story. The Blood Tribe relies on its oral history to provide its account. A.

Blood Tribe Oral History Evidence [ 58 ] In Phase I, the Court heard from a number of members of the Blood Tribe: Wilton Goodstriker, Pete Standing Alone, David Stripped Wolf, Dennis First Rider, Andrew Black Water, Mary First Rider, Charlie Crow Chief, and Bruce Wolf Child. [ 59 ] Canada at paragraphs 290 to 341 of its written submissions provides a general

summary of the evidence each gave. Canada offers submissions on the evidence of events of which these witnesses have no personal knowledge, suggesting but not asserting that the Court when weighing their evidence should consider this. Canada raises no serious issue as to the credibility of these oral history witnesses.

[ 60 ] The Court found that each Blood Tribe witness spoke sincerely and to the best of his or her recollection what he or she had been told by or had heard from persons now deceased. I find that each spoke their own truth; none exaggerated or added details of any facts. They recounted only what they recalled. In some instances, I have made findings contrary to the oral history of the Blood Tribe, or have concluded that the oral history evidence alone fails to meet the plaintiffs’ burden of proof. This is not to be interpreted as a finding that the witness offering the evidence was not credible or is untruthful.

The Court’s role is to weigh all of the evidence before it and arrive at findings of fact on the balance of probabilities. I am reminded of a statement made by Robert Evans in The Kid Stays in the Picture [New York, NY: IT Books, 2013]: There are three sides to every story: your side, my side, and the truth. And no one is lying.

Memories shared serve each differently. [ 61 ] The Blood Tribe summarized the oral history evidence of these witnesses at paragraphs 44 to 89 of its memorandum under seven headings, which provide a useful framework to outline this evidence as it relates to the facts and issues to be decided. a.

Traditional Territory of the Blackfoot Confederacy [ 62 ] David Stripped Wolf described that the Blackfoot Confederacy, comprised of the tribes of the Blackfoot people got along with each other and were “one people”. “The giver of life gave us this land and we never made war among each other”. [ 63 ] Andrew Black Water said that the traditional territory of the Confederacy went from the North Saskatchewan River in the north “near Jasper area where the river flows from the mountains”, to near the Manitoba border in the east, to the northern tip of Wyoming and on to the Yellowstone River in the south, and following the Yellowstone River, west to the mountains.

He added that the first mountain range was also considered to be within the territory of the Confederacy. [ 64 ] No others could enter the territory of the Confederacy without permission. Andrew Black Water explained: [H]istorically we sometimes allow passage for other tribes to go through our territory by way of making treaties with them. With the understanding that they will be allowed passage to go through our territory to wherever destiny not in the territory, but outside of the territory.

Sometimes we enter into treaty arrangements where we will come to an agreement that they can come and harvest some things that perhaps they don’t have in their territory, such as game, medicinal roots and other edible, you know, food. And in turn, they will allow us to — to go into their territory for the same. And those are short-term sort of arrangements that we make. [ 65 ] As the Blood Tribe notes, this evidence is not disputed by Canada, and is affirmed by Dr.

Evans in his report where he says, “scholars have long been aware of the Blackfoot tribes’ dominance of southern Alberta and adjacent portions of Montana during the first seven decades of the nineteenth century”. b. Blood Tribe “Home Base” [ 66 ] Andrew Black Water described the area within the territory of the Confederacy that was the home base of the Blood Tribe, the “Aakainawa, the Tribe of Many Leaders” as being: … from the mountains ongoing east to the Sand Hills to the — this side of Sweet Pine Hills, including Writing-on-Stone, the Cypress Hills, and of course to the boundary, the east boundary.

Then we make our way rounds back, kind of to the north. I would say around what we’d refer to as Medicine Hat, north of that area and coming back west to the mountains. [ 67 ] The area so described includes within it the area described by Red Crow to be where he wished the Blood reserve to be located. c. Clans and Leadership and Decision Making [ 68 ] Many of the oral history witnesses described that there were many leaders of the Blood Tribe. Indeed, as Andrew Black Water said, the tribe is known as, the “Aakainawa, the Tribe of Many Leaders”.

Wilton Good Striker said that the term “chief” only came to the Blood Tribe at the time of treaty. There they had two significant leaders, Red Crow representing the southern clans, and Rainy Chief or Thunder Chief, representing the northern clans. Each was a war leader and Wilton Goodstriker says they operated as such, “until the death of Thunder Chief and then we ended up with one leader [Red Crow] representing the tribe”. [ 69 ] The Blood Tribe was represented by both Red Crow and Rainy Chief at Treaty No. 7.

Although Crowfoot, the Blackfoot Chief, was the principal First Nation spokesperson at the Treaty, Crowfoot did not speak for the Bloods. His mother was a Blood and he was related to Red Crow, but as Andrew Black Water testified, he “would not have spoken for the Blood Tribe”. d. Traditional Treaty Making Process [ 70 ] The plaintiffs note that “[t]he Elders testified to the importance of sacred alliances and the strength of such alliances because they were made in front of a pipe”. The same happened with Treaty No. 7.

Red Crow was advised to use the pipe, as there were fears that the white men would be deceitful. Wilton Goodstriker explains: The pipe was suggested in during the treaty talks by the Elders. In our case, by an Elder who was known as Maanistoko’s, a Father of Many Children. He was sacred teacher, he was sacred adviser to people, like Red Crow, the leaders at the time. Father of Many Children. He was one of the people present at the Lame Bull Treaty on the American side of the border. He was present at the Laramie treaties.

And he cautioned Red Crow and the other leaders, when you come together with the authorities, be careful because they do not speak the

truth. Because they will be deceitful in their relationship with you, use a pipe to solidify your alliance with them, your peace alliance with them. [ 71 ] There is evidence from these Elders that the Blackfoot tribes had experience in treaty-making in addition to making agreements with other tribes for trade and alliances. They were present at the negotiation of a treaty in Montana before Treaty No. 7, and some were present at Treaty No. 6 negotiations. e.

The Blood Tribe’s Understanding of Treaty No. 7 [ 72 ] Andrew Black Water, among others, testified that Treaty No. 7 was seen by the Blood Tribe as a peace treaty: [S]peaking to the Blackfoot treaty, it’s based on friendship. It’s a treaty to live in peace with the new—the newcomers, on the—upon the land, the surface of the land, but it was more the need to live in peace, you know, with each other. [ 73 ] None of the Blood Tribe members spoke English, and none of those negotiating for Canada spoke Blackfoot. Each side was dependent on translators.

The oral history of the Blood Tribe is that Potts was rejected as a translator because he drank heavily and, as Wilton Goodstriker said, “He is not all there”. L’Heureux was suggested as well, but the tribal leadership rejected him as they “quickly determined that he didn’t know enough Blackfoot to be a representative of our leaders that were there”. Father Lacombe was also suggested but rejected because when he was asked to try to speak Blackfoot, he spoke Cree. As Wilton Goodstriker explained: “Cree and Blackfoot are about as different as English and Chinese”.

Ultimately, the Blackfoot accepted Bird as the translator. This evidence was consistent among many who testified, including Andrew Black Water, David Stripped Wolf, and Bruce Wolf Child.

Wilton Goodstriker explained why Bird was selected, the results, and his death-bed confession: Bird who was identified as an interpreter, he was married into the Blackfeet Tribe in Montana, knew some Blackfoot and didn’t have a good command but knew, I suppose, enough to share what was being discussed and later on, in the stories about the old ladies that I talked to a few years back, namely, Rosie Red Crow and Louise Crop Eared Wolf, they shared a story with me that Bird, on that his death bed in Montana, had confessed to the people that were present with him there that he had not interpreted properly what was being discussed.

In fact, he had misled people and that he was sorry. He didn’t want to take, I suppose, a lie to his grave, came clean and so to many of our people, that story quickly spread and that he had not been truthful in the translation of what transpired at Blackfoot Crossing. [ 74 ] David Stripped Wolf’s testimony is that towards the end of the negotiations, Red Crow took some grass and some earth and he told Laird to look at him, and he said that this grass is what we will share but the earth is something that we cannot talk about. “[T]he earth is something we embody.

And so that’s why we can’t—we can’t discuss the earth”. [ 75 ] This account echoes that of Wilton Goodstriker: Through the translator, the government representative said that he will share the land. Red Crow spoke back and with his left hand, he picked up some earth and with his right—with his right hand, he picked up some grass. And he told the—he told the g

[…]