THE BLOG ARCHIVE ON THE RIGHT LISTS THE POSTS IN THE ORDER THAT THEY SHOULD BE READ. PLEASE FOLLOW THE BLOG FROM THE ARCHIVE LIST.

Sunday, September 30, 2018

Intent...Problem...Solution

In June of 2016, Lisa Dobbins sent me, by email, the transcript for the 2014 land claim information meeting held in Sauble Beach. The meeting was first recorded and the transcription was taken from that recording. It is fortunate that Lisa had the foresight to take such an action so we know exactly what was presented and what was not.

At the meeting, Gary Penner, lawyer for Canada, discussed the obligation of a trial judge when making a decision involving a Native treaty. This is what he said:

"Now I will just leave you with this last note and then I will deal with questions, but I think that the question period, more generally is about to follow.

What the Supreme Court of Canada felt that in the field of Aboriginal Law, and they've said this over and over again in approaching these treaty cases and in interpreting a treaty, that it's critically important, and there are many different principles to the interpretation that have to be applied, but the fundamental principle is that (it) is the understanding and intention of the party at the time the treaty was entered into that is on the basis of the interpretation, not what somebody thinks what it was supposed to mean some 100 years later or 150 years later. 


So, what they're telling judges, trial judges, to do, you've got to look to the treaty and all the events surrounding it and you have to come to a conclusion and forfeit the understanding of dissension of the parties at the time the treaty was entered into in 1854."

This posting reviews and summarizes a lot of what I have presented throughout this blog, but I wanted to demonstrate how it holds up to the statement Mr. Penner provided.

If what Mr. Penner is saying is true, that is, the trial judges are obligated to, and I quote, "look to the treaty and all the events surrounding it" to come to their conclusion, my interpretation would have to be considered correct, since it matches all terms of the treaty to the final map submitted by Charles Rankin in 1856. The Copway Road Amendment is an event surrounding the treaty that is required to make the treaty instructions correct. Mr. Penner also goes on to say, it is "not what somebody thinks it, (the Treaty and the events surrounding it) was supposed to mean some 100 years later or 150 years later."

INAC, today, thinks the interpretation should be that the shoreline boundary of the Saugeen Reserve should end at the NE < Ind. Res. notation at midpoint lot 31, found on the 1855 draft map. This interpretation does not match the terms of the treaty and would result in a shoreline measurement of 11 miles rather than 9 1/2 miles. Their entire argument is built on assumptions and what they think the Treaty and surrounding events are supposed to mean.

For this particular case, Mr. Penner is saying: The trial judge is obligated to first look to the treaty instructions for the intent of the treaty. He must then look to Charles Rankin's final map, submitted to and accepted by Indian Affairs in 1856, and the events surrounding the creation of the map to determine what led to Rankin's final interpretation of the reserve boundary. The trial judge must then compare these events to see if it correctly interprets the treaty instructions. 


Treaty 72 promised the Saugeen Band a 9 1/2 mile shoreline boundary and that is what they received. Charles Rankin stated "the Copway Road Amendment would not alter the terms of the treaty in any way" and it didn't. What did change, was the location of the NE corner of the Saugeen Reserve boundary from midpoint lot 31 to its new location of lot 25/26 (Main Street). The terms of Treaty 72 from 1854 and the terms of the Copway Road amendment of 1855 compared to what the Saugeen Band received, match their reserve boundaries found on Charles Rankin's final map in every detail and are still in place today.

To illustrate the "intent" of the events surrounding Treaty 72 and the Saugeen Reserve boundaries, we can look to the Treaty instructions, the maps Rankin produced, and the events following the treaty signing. First, the treaty instructions:

"For the benefit of the Saugeen Indians we reserve all that block of land bounded on the west by a straight line running due north from the River Saugeen, at the spot where it is entered by a ravine immediately to the west of the village, and over which a bridge has recently been constructed, to the shore of Lake Huron; on the south by the aforesaid northern limit of the lately surrendered strip; on the east by a line drawn from a spot upon the coast at a distance of about (9 ½ ) nine miles and a half from the western boundary aforesaid, and running parallel thereto until it touches the aforementioned northern limits of the recently surrendered strip;

Although the treaty instructions are ambiguous as to how and where a measurement of 9 1/2 miles from the Western boundary was to be conducted, the shoreline measurement is the most conclusive. It equals, almost exactly, 9 1/2 miles when measured from the NW position of the original western boundary to midpoint lot 31. Expert reports I have read confirm this. 

Therefore, initially, the instruction from the treaty would have located the starting point for the 9 1/2 mile measurement at the NW position of the original western boundary. This would have placed the NE corner of the Saugeen Reserve exactly where INAC/Saugeen Band argue it should be, at midpoint Lot 31, and if it had been mathematically possible, the shoreline boundary and the western boundary of the Saugeen Reserve would have appeared as I have illustrated by the red lines below on Rankin's final map:


INTENT: of Treaty 72 Instructions


However, it wasn't mathematically possible. You cannot have an eastern boundary that runs parallel to the western boundary in 1855 and a 9 1/2 mile measurement start from the NW position of the original western boundary which would include land from Lot 25/26 (Main Street) to midpoint Lot 31. Just by looking at the map, you can see that the eastern boundary is not going stay within the shoreline from Lot 25/26 to midpoint Lot 31. 


The first map Rankin ever produced that outlined the boundaries of the Saugeen Reserve is the Grey/Bruce map of January, 1855 and it confirms the impossibility. Rankin does not place the NE corner of the Saugeen Reserve at midpoint lot 31, but instead, it is positioned at Lot 25/26 (Main Street). The scale of the map proves the NE position of the reserve to be Lot 25/26, but it is easy to confirm this location just by looking at it. It is impossible to know exactly how Rankin realized, this early on, that the Treaty instructions were impossible to achieve, but the illustration of the Saugeen Reserve on the Grey/Bruce map proves he knew it as early as January, 1855. 

It also proves that because of the mathematical impossibility, Rankin's intention moving forward, was to rely on the treaty instruction that the eastern boundary would run parallel to the western boundary to enable him to locate the "spot on the coast" which identifies the NE corner of the Saugeen Reserve. He also intended to keep the western boundary in the exact location as described by the treaty. We can only speculate that Rankin concluded that since the eastern  boundary could not include land from Lot 25/26 to midpoint Lot 31 to complete a "block of land" as stated in the treaty, the Saugeen Band were not really giving anything up in form of their reserve boundaries.


PROBLEM: Treaty instructions are mathematically impossible 

The Saugeen Band's response was one of outrage. They contended that they believed they had agreed that the western boundary was to be at, and include, Copway Road and everything north of it. Therefore, their interpretation of what was originally agreed upon wouldn't have placed the NE corner of their reserve at Lot 31, it would have positioned it at Lot 25/26 (Main Street). The fact that they made this contention proves that the Saugeen Band of 1854 never believed that their NE boundary was ever supposed to be located at midpoint Lot 31 since it would make the shoreline boundary 11 miles rather than 9 1/2 miles. Their interpretation of the agreement in 1855 proved to be correct since it allowed both the shoreline measurement of 9 1/2 miles and the eastern boundary parallel to the western boundary to intersect and terminate a "block of land" at the same location. The location is just inside the Lot 25/26 dividing line.

As a result, the Copway Road Amendment was put in place which allowed all terms of the treaty to be honoured without alteration. The final result was and still is what we have observed to be the boundaries of the Saugeen Reserve for over 160 years. Rankin's final map of 1856 outlines it as seen below:


Solution: Copway Road Amendment allows all terms of Treaty 72 to be fulfilled without alteration.

The intent of the survey, based on the surrounding facts, is conclusive when observing Rankin's final map. Each event since the signing of the treaty logically builds to how the boundaries of the Saugeen Reserve that are found on Rankin's final map of 1856 were created, but more importantly, how and why the NE corner of the reserve ended up at Lot 25/26 rather than midpoint Lot 31.

And what about the October 12th, 1855 draft map that INAC/Saugeen Band rely on for their argument? What could a trial judge conclude about the intent of the treaty and the surrounding events from it? The map, on its own, without the surrounding events, raises more questions than answers.




The notation, NE < Ind. Res. presumably marks the location of the NE corner of the Saugeen Reserve, yet the NE corner is clearly drawn on the draft map as terminating in the vicinity of Lot 25/26.

Neither the original western boundary or the amended western boundary is marked on the map to show a starting point for the 9 1/2 mile measurement. How could a judge confirm intent of the 9 1/2 mile measurement without either western boundary drawn on the map?


There is an extension line from Lot 26 that intersects the post, drawn on the map, at midpoint Lot 31 and then extends beyond. This line clearly shows that it is impossible for the eastern boundary to remain within the confines of land from Lot 26 to Lot 31. The intention of the line is most likely to intersect with the extension line from Chief's Point to allow a True North bearing reading of Chief's Point eastern boundary. It is most definitely not a boundary line of any kind. How could a judge determine it was the final intent of the survey or the treaty to include land from Lot 25/26 to Lot 31 when it is mathematically impossible to do so?


Regardless of whether the treaty instructions were recorded incorrectly or mutually misinterpreted, the initial intention was to create a 9 1/2 mile shoreline boundary for the Saugeen Band that extended from the NW position of the original western boundary to midpoint Lot 31
INTENT


The treaty instructions for the Saugeen Reserve were found to be impossible to achieve and a shoreline boundary of 8.1 miles instead of 9 1/2 was the result. This upset the Saugeen Band.

PROBLEM

The Saugeen Band recognized the treaty instructions were misinterpreted from what was initially agreed upon. As a result, the western boundary was moved south 1.4 miles to include Copway Road (a dirt path that led from the Saugeen village to Lake Huron) and the NE corner of the Saugeen Reserve was moved south 1.4 miles to Lot 25/26. The result was a Saugeen Reserve boundary that met all terms of the treaty which can be confirmed on Rankin's final map of 1856.


SOLUTION

What you see illustrated in the three maps above is basically all any trial judge or anyone needs to know about the Treaty 72 survey of the Saugeen Reserve to come to a logical determination.


Is the argument I have provided throughout this blog irrefutable? No. 

There are other weak arguments built on assumption that can spin another tale. However, what is irrefutable, is my argument matches the terms of Treaty 72 regarding the boundaries of the Saugeen Reserve to Rankin's final map of 1856 in every way. No other argument, including the INAC/Saugeen Band argument, can make the same claim. There is no other documentation more valuable to making a final determination of intent than the treaty terms and the final map that interprets those terms. 

Do the events surrounding the signing of the Treaty support my conclusion? Yes.

Very little of what I have presented is built on assumption. Many of the surrounding events of the treaty factually support my conclusions. Some of my interpretations show there is other considerations to be made compared to how INAC/Saugeen Band present the same information.

I ask you: How could a trial judge rule in favour of the Saugeen Band based on the obligation that they are required to "look to the treaty and events surrounding the treaty" to decipher intent to allow for the presiding judge to come to a proper interpretation? Based on the facts, the determination has to be that the Saugeen Band did surrender all land north of lot 25/26 (Main Street) to midpoint lot 31. Therefore, the INAC/Saugeen Band argument is irrelevant.