E LAW - MURDOCH UNIVERSITY ELECTRONIC JOURNAL OF LAW ISSN 1321-8247 Volume 8 Number 2 (June 2001) Copyright E Law and author File: haslip82.txt ftp://cleo.murdoch.edu.au/pub/elaw/issues/v8n2/haslip82.txt http://www.murdoch.edu.au/elaw/issues/v8n2/haslip82.html ________________________________________________________________________ A Treaty Right to Sport? Susan Haslip Contents * Introduction * Terminology * Historical Bases of Exclusion o Historical Exclusion by Sport Organizations o Legislative Exclusion o Festivals, Dances and Other Ceremonies o Attendance at Pool Halls o Attendance at and Participation in Sport o Subsequent Legislative Amendments o Conclusion * Impact of Initiatives o Conclusion * Arguments in Support of a Treaty Right to Sport o Need for a Right to Sport o Arguments in Support of a Treaty Right to Sport o Case Law Interpreting Medicine Chest Clause o Fitting Sport within the Medicine Chest Clause o Scope of Right o Conclusion * Overall Conclusion * Notes Author's Note: The opinions, views and concerns expressed herein represent solely those of the author. As Patricia Monture Angus (formerly Okanee) has written, "[a]ny inaccuracy or vagueness must become my responsibility as the one who has woven this article together." (P.A. Monture Okanee, writing in S. O'Connor, P. Monture and N. O'Connor, "Grandmothers, Mothers and Daughters" (Summer/Fall 1989) 10 (2, 3) Canadian Woman Studies pp. 38-39 at 38.) This paper is written in the spirit of increasing understanding in the hope that "[t]o know who we were enables us to know who we are." (Muskeg Lake Cree Nation, ) Introduction 1. While sport is considered "an intrinsic element of Canadian society"[1] it is integral to the culture of First Nations peoples in Canada. 2. The integral nature of recreative activity for Aboriginal peoples is attributable, in large part, to the fact that the physical aspect of sport reflects one of the four parts of traditional First Nations teachings (the others are spiritual, emotional and mental)[2] According to traditional First Nations teachings, in order for a person to be balanced or whole, he or she needs to have balance between the four elements[3] and that in order to have balance, each of these elements must be "adequately exercised and improved upon"[4] To this end, sport is not simply an end in itself; rather, it is a "part of life[]"[5] Lacrosse, for example, while understood as a traditional Indian sport, was used as a mechanism to resolve disputes between communities, and also served as a 'place for spiritual recognition, as a place of spiritual gatherings and as a place of emotional celebration'[6] The integral role of sport in the lives of First Nations peoples suggests that sport has the capacity to promote the physical and social well-being of both individuals and communities. With this in mind, Aboriginal leaders in Canada are championing sport as a mechanism to address "many of the social ills facing Aboriginal people"[7] and the "heightened health risks"[8] faced by Aboriginal youth. Sport, for example, has also been likened to "the strongest type of medicine" because of its "preventative nature"[9] The difficulty, however, is that while sport is "deeply rooted in the cultural history of [] indigenous peoples"[10] and directly related to the cultural experience of indigenous peoples[11] many Aboriginal peoples no longer play sport[12] and are generally under-represented in the Canadian sport system[13] 3. In the first part of this paper, I consider these paradoxes through a historic lens and identify events occurring during the eighty year period - from the 1870's through to the 1950's - that I believe assist in understanding same. First, I outline the efforts of sport organizations to exclude First Nations peoples from participating in sport events. I then consider federal legislative initiatives that either directly or indirectly impacted upon Indian participation in or attendance at sport events. I suggest that these legislative initiatives were part of a broader scheme designed to civilize, and later assimilate, Indian peoples. In Part II, I consider the extent to which initiatives aimed at isolating, 'civilizing' and assimilating First Nations peoples inform the contemporary challenges faced by them. Given the importance sport to First Nations peoples, I consider in Part III why an alternative basis for a right to sport is important and suggest that a contemporary interpretation of the medicine chest clause in Treaty No. 6[14] supports such a right. Since similar verbal clauses form parts of Treaties 7, 8, 10 and 11, this analysis would be of interest in interpreting similar clauses in those treaties. Case law supporting the existence of incidental rights is used to support the existence of incidental rights to coaching and the existence of sport/recreational facilities. It is beyond the scope of this paper to engage in a consideration of the other components of the test established by the Supreme Court of Canada in R. v. Sparrow in relation to establishing the existence of a treaty right (i.e., extinguishment, infringement and justification)[15] Given the paucity of scholarly writing on point, and the absence of case law, any conclusions reached are "speculative and necessarily tentative."[16] Terminology 4. Before proceeding further, I would like to clarify the terminology appearing in this paper. While I traditionally use the term 'Aboriginal' (and occasionally First Nations) when referring to the indigenous peoples of Canada[17] throughout this paper I will, be using the terms Indian(s) and First Nation(s). The two terms are used interchangeably. I have opted to do so for two reasons. First, the extensive legislative provisions to which I will be making reference use the term Indian. Second, the selection of Treaty No. 6 as the basis for arguments in favour of a treaty right to sport, by definition, refers to a specific Indian group or groups. In the case of Treaty No. 6, for example, the agreement is between Her Majesty the Queen and the Plains and Wood Cree Indians and other tribes of Indians at Fort Carlton, Fort Pitt and Battle River[18] To use a more inclusive term such as 'Aboriginal' in this context would run the risk of misleading the reader that the scope of the right is somewhat broader than is intended. On occasion, however, I have used the term 'Aboriginal'. The rationale in doing so is that such terminology more closely approximates, or replicates, the intended meaning of a source to which I have referred. 5. For sake of clarity, however, I have opted to provide definitions of the various terms used to refer to indigenous persons in Canada since other terminology appears in reference sources throughout this paper. Pursuant to subsection 91([24] of the Constitution Act, 1867 (formerly the British North America Act, 1867) the Parliament of Canada (the federal government) has jurisdiction over "Indians and land reserved to the Indians."[19] The people referred to as 'Indian' are from 45 different nations having 56 different languages[20] Peoples referred to as 'status Indians' are Indians registered under the Indian Act[21] A community of status Indians is referred to as a 'band'[22] Indian persons not registered under the Indian Act are referred to as 'non-status Indians'[23] Pursuant to the decision in Re Eskimos24, the people referred to as 'Inuit' (or 'Eskimo') are also understood to be 'Indian' for division of powers purposes pursuant to subsection 91(24) of the Constitution Act, 1867. Hogg notes, however, that Inuit persons are "outside the reserve system", and are therefore not covered by the Indian Act definition"[25] There is, however, no federal registration system for Inuit persons[26] The group referred to as "Aboriginal peoples of Canada" is defined as including "the Indian, Inuit and Métis peoples of Canada"pursuant to subsection 35(2) of the Canadian Charter of Rights and Freedoms[27] The individual groups of persons, however, are not defined[28] The group referred to as the 'Métis' do not have Indian status under the Indian Act and that there is no federal registration system for Métis persons[29] There is, however, provincial legislation in Alberta that provides for the identification of members of Métis communities[30] 6. The other clarification which I wish to make concerns what I mean by 'sport'. The Minister's Task Force Report on Federal Sport Policy, Sport: The Way Ahead - The Report of the Minister's Task Force on Federal Sport Policy, defined sport as "one part of a physical activity spectrum that includes play, fitness activities, recreational sport, organized competitive sport and high-performance sport."[31] I have opted to use 'sport' in the same way in the context of arguments in favour of a treaty right to sport since it is my intention to include in this sport net, where possible, as much activity as possible and to allow for contemporary understandings of 'living practices'[32] and incidental rights that may arise in relation to sport. In so saying, I am unclear whether participation in, festivals, dances and other ceremonies should be included in such a definition. From a 'more is better' perspective, I am tempted to include such activity. On the other hand, however, I am mindful that such practices, as well as other activities that might be caught within my sport definitional net, are much more than 'mere recreational activity'[33] and would be grossly misrepresented by referring to such practices as 'sport' as that term is understood from a non-First Nations perspective - i.e., sport as an end in itself as opposed to a means to another end. Ultimately the definitional issue is a matter for First Nations peoples to address. Historical Bases of Exclusion Historical Exclusion by Sport Organizations 7. A consideration of the exclusion of First Nations peoples from participating in 'Indian-derived cultural practices[34] (i.e., sport events) by non-First Nations sport organizations provides a historic understanding of why many First Nations peoples may have stopped playing traditional sport and may suggest why First Nations peoples are under-represented in the Canadian sport system despite being deeply entrenched in the cultural history of First Nations peoples. One exclusionary initiative used to exclude Indian peoples was a classification system introduced in snowshoeing to ensure separate races existed for Indians and White Anglo-Saxon Protestant members of a given sport organization[35] As will be seen below, this period of definitional exclusion occurred around the same time period when Indians were defined as 'non-persons' "unless the context clearly required that construction pursuant to the Indian Act[36] The basis for separate systems was the belief that Indian persons were perceived as having a 'natural ability' vis. a vis. sport while non-Indian persons were thought to only approximate such ability through systematic training. As a result, Indian persons were perceived as having an inherent superiority in competition[37] Cosentino notes that when an Indian person won a competition, his 'Christian' name along with the qualifier of 'Indian' in brackets also appeared in order to "put their achievements into perspective and to otherwise distinguish them from other segments of society."[38] Despite the existence of separate classification systems, there also existed 'open' races. The 'open race' category appeared to some Indian participants to represent a loophole of sorts to the separate streams. In the late 19th century, for example, the Montreal Gazette reports that two Indian men entered an 'open race' competition held at the Maple Leaf Snowshoe Club[39] This 'loophole' was quickly addressed by way of clarifying what had been an "unwritten understanding" - "Open Race (Indians excepted)."[40] A second exclusionary initiative designed to exclude First Nations peoples from participation in recreation and sport competitions in Canada, particularly in the sport of lacrosse, was the classification of all Indian athletes as 'professionals' and, as such, automatically ineligible to compete in 'amateur' competitions[41] Unlike in Great Britain where the distinction between amateur and professional was based on class, the determining factor in Canada "as to who might be excluded and classified as a professional[]" was race[42] In 1880, for example, the newly formed National Amateur Lacrosse Association (NALA), by virtue of their amateur status, prohibited Indian peoples from playing lacrosse because of the 'professional' status of all Indian athletes[43] An exception was made that permitted Indian people to work as trainers on lacrosse teams or also to play on amateur teams when there was an exhibition match. As Cosentino notes, "[t]he clubs therefore had it both ways. The superior skill of the aboriginal could be used when large crowds were expected (i.e., exhibition match). On the other hand, whether the Amerindian had ever played lacrosse or had in fact ever played any sport, he was declared to be outside amateur competition by virtue of having been born an Amerindian."[44] An alternative lacrosse league, the Canadian Lacrosse Association (CLA), however, created in 1887, permitted Indian people to play lacrosse[45] According to Cosentino, alternative clubs such as the CLA sprung up at the end of the nineteenth century due to increased leisure due to technological advances[46] These clubs focused on developing "competitive sporting skills rather than purely social graces"[47] Thus the CLA was skills-oriented while the NLA was "socially oriented"[48] 8. A consideration of the extent to which the class system in Britain influenced the determination of professional status, however, suggests that the Canadian distinction between social- versus skills-orientations was based on class as well as race. The use of class to maintain to retain the distinction of 'amateur' for the upper classes was attributable to the fact that participation in sport and recreation was considered to be the prerogative of those with leisure time. Until the 19th century, however, no such categorization was needed in Britain due to the fact persons of the lower classes did not have sufficient amounts of leisure time to pose a threat to the upper classes - either in terms of fraternizing with the upper classes or actually succeeding in competition against the upper classes[49] 9. As the lower classes acquired more leisure time owing to technological advances, however, there was increasing opportunity for such fraternization[50] The combination of increased amounts of leisure time, however, was particularly lethal in the hands of persons employed in positions related to recreation and sport, characterized as "work-professionals" (i.e., persons employed in professions such as a water-taxi operator), a cycling salesman, a foot courier and/or "instructor-professionals" (i.e., persons working in golf courses, boat houses or cricket pitches)[51] These persons posed a double threat - in terms of increased 'risk' fraternization and being sufficiently proficient to beat members of the upper class[52] The term 'amateur' was preserved and jealously guarded for only those persons of elite social standing, while the term 'professional' was used to describe those persons who were socially "inferior"[53] Thus the 'professional' category expanded to include persons whose work involved "any form of manual labour" as a "regular routine" and thus not deserving of such 'worthy' classification[54] By maintaining the distinction between 'amateur' and 'professional', the upper classes were able to ensure that members of the upper class were able to compete against "those with similar backgrounds[]."[55] 10. A consideration of the exclusion of First Nations peoples from participating in First Nations-based sport events by non-First Nations sport organizations provides a historic understanding of why some First Nations peoples may have stopped playing traditional sport and may suggest why First Nations peoples are under-represented in the Canadian sport system despite being deeply entrenched in the cultural history of First Nations peoples. Morris, for example, writes of how difficult it was at time to sit with his grandfather, "having the appreciation for when he [the grandfather] was involved in sport to try to figure out why he stopped - why did he not go on."[56] In the next portion of this paper I consider federal initiatives specifically targeting Indian peoples that either directly or indirectly impacted upon Indian participation in or attendance at sport events. Legislative Exclusion 11. Pursuant to powers rooted at subsection 91(24) of the Constitution Act, 1867, the Parliament of Canada, and thus the federal government, has jurisdiction over "Indians and land reserved to the Indians."[57] The Indian Act, a federal legislative mechanism, was employed by the federal government as a vehicle to 'civilize' and later assimilate 'Indians'[58] The Indian Act is filled with examples of federal government initiatives directed at these ends. Many provisions of the Indian Act, for example, addressed integral components of First Nations' culture and what it meant to be 'Indian'[59] The Indian Act, for example, defined who was an "Indian"[60] and specifically defined a "person" as "an individual other than an Indian, unless the context clearly requires another construction"[61] 12. Other provisions concentrated on attacking First Nations language, culture, teachings and spirituality[62] The residential school system, a product of the patriarchal Indian Act, and informed by assimilationist and diminutionist policies[63] has been described as "the Canadian government's most destructive and blatant tool of cultural genocide perpetrated against Aboriginal people in Canada's 125-year history"[64] Between 18[67] and 1967, for example, First Nations children were forcibly uprooted from their families[65] elders and communities in an effort to 'purify' these children for entry into mainstream society[66] As part of this 'purification' process, First Nations children and their families were indoctrinated into believing that they were "pagan" or represented an "inferior state of being"67. Siblings attending the same school, for example, were prohibited from speaking to one another[68] 13. Amendments to the Indian Act addressing the participation of Indians in, and/or attendance at festivals, dances, and other ceremonies; pool halls and provisions empowering Indians to regulate participation in and attendance at events continued the Indian Act's emphasis on 'civilizing' and assimilating Indians. These amendments were considered necessary to address the "slow advancement of Indians toward 'responsible citizenship'" and the government's concern that this tardiness served "as an impediment to the growth and development of Canada."[69] While much has been written on the impact of amendments affecting the participation of Indians in, and/or attendance at festivals, dances, and other ceremonies, there is a paucity of literature on this area vis. a vis. the indirect impact of such amendments on Indian participation in sport events often accompanying such festivals, dances and other ceremonies. Similarly, there is an absence of literature on the impact of provisions regulating pool halls and empowering Indians to regulate participation in and attendance at events on reserves vis. a vis. Indian participation in sport events. Festivals, Dances and Other Ceremonies 14. Between the years 1884 through to 1951, a number of amendments were made to the Indian Act concerning attendance at, or participation in, festivals, dances and other ceremonies. While such activities were not sports,[70] a consideration of legislative amendments prohibiting concerning such activity reveals that such amendments frequently affected the participation or attendance of Indian peoples in sport events. An 1884 amendment, for example, prohibited the celebration of, or inciting to celebrate, either the Potla[t]ch festival or Tamanawas dance[71] The Potlatch festival was a "a complex ceremony among the west coast tribes that involved giving away possessions, feasting and dancing, all to mark important events, confirm social status and confer names and for other social and political purposes."[72] A traditional ceremony such as the Potlatch "validated status, rank and established claims to names, powers and privileges."[73] The Tamanawas dance was an "equally complex west coast ceremon[y] involving supernatural forces and initiation rituals of various kinds, many of which were repugnant to Christian missionaries."[74] Further, the same section prohibited any person either directly or indirectly encouraging "an Indian or Indians to get up such a festival or dance, or to celebrate the same[]" themselves assisting in the celebration of this festival or dance[75] Initially, breach of such provisions rendered one guilty of a misdemeanour and "liable to imprisonment for a term of not more than six nor less than two months in any gaol or other place of confinement"[76] 15. Pursuant to this prohibition, Indian agents harassed and arrested Indians[77] Despite the prohibition, however, some Indian agents, at least in British Columbia, were reluctant to vigorously enforce the ban[78] The Royal Commission on Aboriginal Peoples' report suggests a number of reasons for this reluctance including an early decision of former Chief Justice Begbie of British Columbia indicating he was "unsympathetic to such prosecutions" and the fact that not all Indian agents were against the banned activities[79] The arrests and harassment, however, had the effect of reducing the prevalence of potlatching and Tamanawas dances or "forcing adherents to conduct these activities in secret."[80] Additional activities such as "official disapproval and the pressure generated by it, harassment from the Indian agents, use of the Indian Act trespass provisions to evict Indians from other reserves, and mass arrests and trials" also assisted in achieving the desired effect of "eliminating or at least undermining the potlatch and other traditional ceremonies in many cases."[81] 16. A subsequent amendment in 1895 was even more oppressive in terms of prohibition and nature of penalty for contravening the provision. While this amendment no longer specifically referred to a festival, dance or other ceremony - it sought to prohibit "[e]very Indian or other person" from engaging in, or assisting in celebrating or encouraging another either directly or indirectly to celebrate, "any Indian festival, dance or other ceremony of which the giving away or paying or giving back of money, goods or articles of any sort forms a part, or is a feature, whether such gift of money, goods or articles takes place before, at, or after the celebration of the same...."[82] (emphasis mine) 17. This same section also prohibited "every Indian or other person" from engaging or assisting in "any celebration or dance of which the wounding or mutilation of the dead or living body of any human being or animal forms a part or is a feature..."[83] The Royal Commission on Aboriginal Peoples notes that "while practices associated with traditional dances, including the Blackfoot sundance and the Cree and Saulteaux thirst dance" were specifically targeted with an outright ban, the dances themselves were insulated from prohibition as "the ban applied only to the giving away of property and to the wounds and other injuries that were customary for some of the participants[]" but not the dances themselves. The 1895 amendment also contained a clarifying provision which provided that the prohibition was not designed to "prevent the holding of any agricultural show or exhibition or the giving of prizes for exhibits thereat."[84] 18. The offence for contravening these 1895 prohibitions was no longer considered a misdemeanour but was now an indictable offence while the range of penalty remained the same[85] As a result of the increased scope of this amending prohibition, "arrests and prosecutions immediately went up."[86] However, since the offences were no longer misdemeanours but indictable offences, they were outside the jurisdiction of Indian agents that were also acting as justices of the peace and in order to have charges laid, Indian agents had to have the charges laid in another court[87] The Royal Commission on Aboriginal Peoples report notes, however, that despite the fact that indictable offences were outside the jurisdiction of Indian agents, the agents frequently sought to suppress the dances themselves[88] Arrests and imprisonments did occur during this period as evidenced by the arrest in 1904 of Taytapasahsung, a nearly blind 90-year old man sentenced to two mounts imprisonment "at hard labour"[89] Amending legislation in 1918 that reduced the severity of the offence from an indictable offence to a summary conviction offence, sponsored by Deputy Superintendent Duncan Campbell Scott, resulted in such offences being brought within the jurisdiction of the Indian Act thereby removing such offences "from courts outside the reserve."[90] Pursuant to this amending provision, Indian agents, when acting as justices of the peace, were also empowered to "prosecute the anti-dancing and anti-potlatching provisions."[91] There was not change in the penalty itself - liability to imprisonment "for a term of not more than six nor less than two months in any gaol or other place of confinement."[92] The Royal Commission on Aboriginal Peoples notes that no one was jailed for "potlatching" until 1920 during a time of "intense official enforcement of prohibitions on traditional cultural practices in British Columbia and on the prairies."[93] 19. While the Indian Act provision that nothing would prohibit the holding of agricultural shows or exhibitions or the awarding of prizes at these shows or exhibitions, the "scandal associated with such cases and the growing popularity of stampedes and agricultural exhibitions at which Indians were increasingly invited to dance" resulted in a further amendment being passed in 1914 which required Indians in the province of Manitoba, Saskatchewan, Alberta, British Columbia, or the Territories who sought to participate "in any Indian dance outside the bounds of his own reserve" were required to obtain the prior consent of the Superintendent General of Indian Affairs or his authorized Agent[94] This same pre-approval was also mandated for those Indians in the specified provinces or Territories who wanted to participate[] in any show, exhibition, performance, stampede or pageant in aboriginal costume"[95] Restrictions on attendance at shows, exhibitions, performances, stampedes or pageants reflected was informed by "the difficulties we [Canadian government officials] have in keeping the Indians farming in the communities ... if there is an agricultural fair within a hundred miles we have a most difficult time in keeping them at work on the reserve."[96] 20. In addition, the subsection prohibited "any person" from inducing or employing "any Indian to take part in such dance, show, exhibition, performance, stampede or pageant[]" or from inducing "any Indian to leave his reserve or employ[ing] any Indian for such a purpose"[97] Contravention of this new subsection was a summary conviction offence and the offender was liable "to a penalty not exceeding twenty-five dollars, or to imprisonment for one month, or to both penalty and imprisonment."[98] The provision concerning employing or inducing an Indian to take part in such activity, or to leave his reserve to take part in such activity was deemed to be contravened regardless of "whether the dance, show, exhibition, stampede or pageant has taken place or not"[99] 21. Reference to Indians participating "in any show, exhibition, performance, stampede or pageant in aboriginal costume" was reviewed during the period 1932-1933 and amending legislation was passed eliminating the phrase "in aboriginal costume"[100] Following this amendment, pre-approval was required for those Indians in the specified provinces or Territories who wanted to participate[] in any show, exhibition, performance, stampede or pageant" regardless of whether or not they were "in aboriginal costume"[101] 22. The intention in so doing was to make the legislation more and not less restrictive. During debate in the House of Commons, it was noted that the removal of reference to 'aboriginal costume' was designed "to address the situation of Indians being paraded around to display themselves for the amusement of the white onlooker"[102] During debate on the same provision, the purpose of the amendment was described as "intended to render it a little more difficult for Indians to evade the ban by making a slight change in their costume."[103] 23. Since sport events such as lacrosse, football and rodeos were often integral parts of dances, shows, exhibitions, performances, stampedes and pageants, the restrictions imposed upon Indian peoples in terms of participation or attendance at such events had the effect of restricting participation or attendance at sport events. A hypothetical situation presented by the Honourable Mr. Neill observed during debate in the 1933 House of Commons concerning the removal of the phrase 'in aboriginal costume' suggests that Parliament knew the far-reaching effects of such a restrictive provision on the participation of Indians in sport events: "[a] country fair is being held a long way from an Indian agent. Arrangements have been made that a team of Indians shall play a team of whites at lacrosse or football. Permission has been obtained - which, I must says is rather humiliating. We will suppose however that permission has been obtained. At the last minute one of the Indian boys cannot play, and it is impossible to replace him with another Indian without breaking the law, because permission could not be obtained from the Indian agent two hundred miles away."[104] 24. Thus, restrictive legislation aimed at prohibiting and/or controlling participation in festivals, dances and other ceremonies indirectly affected the participation or attendance of Aboriginal peoples in sport events. Despite the restrictive nature of such legislation, the federal government was of the opinion that it was not sufficiently restrictive to control the 'leisure time' of Indian peoples. Thus, it embarked on a full-scale legislative attack to control how First Nations peoples spent their 'leisure' time. The effect was to specifically restrict attendance at and/or participation in recreation and sport activities for Indians. Attendance at Pool Halls 25. In 1927, a provision empowered the Superintendent General of Indian Affairs was empowered to "make regulations governing the operation of pool rooms, dance halls and other places of amusement on Indian reserves."[105] The violation of any such provision rendered one liable to "a fine not exceeding thirty dollars or imprisonment not exceeding thirty days" at the discretion of the Superintendent General[106] Where a conflict existed between "any regulation made by the Superintendent General and any rule or regulation made by any band, the regulations made by the Superintendent General shall prevail."[107] The Royal Commission of Aboriginal Peoples notes that this "unusual power" provided to the Superintendent General "was apparently to ensure that Indians would learn industriousness and would not spend too much time in leisure pursuits that were available to non-Indians."[108] 26. Concern with 'Indians wasting their time in a poolroom' and not farming in the fields gave way to a further amendment to the Indian Act in 1930[109] This provision was an addition to the section outlining prohibitions related to the celebration of festivities, dances or ceremonies discussed above. Pursuant to this provision, an Indian could be forbidden to enter a poolroom for one year if found to be "misspend[ing] or wast[ing] his time or means to the detriment of himself, his family or household, of which he is a member" by the "inordinate frequenting of a poolroom either on or off an Indian reserve"[110] The determination of how much frequenting constituted "inordinate frequenting", whether time spent was misspent or wasted, and whether such misspent time or wasted time was to the detriment of the individual was determined in court by either a "police magistrate, stipendiary magistrate, Indian agent, or two justices of the peace holding such court"[111] 27. Following such a finding, an order prohibiting the owner or operator of the pool hall "which such Indian is in the habit of frequenting" was prohibited from allowing the Indian to enter the poolroom for a period of one year from the date of the order[112] It was a summary conviction offence for an owner or operator of a poolroom to violate this provision; similarly, it was a summary conviction offence for an Indian to enter a poolroom "where his admission had been so forbidden"[113] Violators faced a penalty "not exceeding twenty-five dollars and costs or to imprisonment for a term not exceeding thirty days."[114] 28. The 'rationale' for this provision was outlined during debate in the House of Commons on the pool room provision. Then Minister of the Interior, the Honourable Mr. Stewart, for example, noted in support of this provision, that "[o]ne of the difficulties we have in keeping the Indians farming in the communities where we are making some progress with them, is that they waste so much time loitering around the pool rooms in the towns, and if there is an agricultural fair within a hundred miles we have a most difficult time in keeping them at work on the reserve."[115] Concern was also expressed that the federal government would not be able to "keep the young men particularly, and the old men as well, from engaging in games of chance within a pool room."[116] Mr. Irvine, objecting to the provision concerning the pool room, inquired whether the pool room was the only place where "an Indian would become liable to punishment if he frequented it too much?" or whether behaviours such as "standing on the sidewalk or sitting under a tree" would also be problematic[117] 29. The examples provided to this point illustrate that the ability of Indian persons to attend and/or participate in sport activities was either indirectly or directly affected by restrictive federal legislation. In the next subsection of this paper I outline federal initiatives designed to permit Indians themselves to control and prohibit attendance at sport events. Attendance at and Participation in Sport 30. In 1930, the federal government, pursuant to a further amendment to the Indian Act, introduced two amendments to the Indian Act concerning sport. Pursuant to one of these provision, "[t]he chief or chiefs of any band in council may likewise and subject to such confirmation [by the Governor in Council], make rules and regulations" in a number of areas including "controlling or prohibiting participation in, or attendance at, "public games, sports, races, athletic contests or other such amusements on the Sabbath."[118] Pursuant to the second of these two provisions, the Band Council (of an Indian Band) could "make by-laws, rules and regulations, approved and confirmed by the Superintendent General" in a number of areas, including the same prohibitory provision concerning participation and attendance outlined above[119] 31. The 'rationale' informing this provision was apparently not to stop the games themselves but what was described as "the vicious practices that grow up around those games[][.]"[120] The 'vicious practices' referred to were the "[c]ollections that were made at the games" and the issue of the distribution of liquor and resulting intoxication of Indian peoples as supported by police evidence[121] During debate in the Senate on this provision, for example, one Senator notes that "the Department think[s] that the band should be given some authority for their own protection."[122] address "[s]erious complaints" that had been made concerning "the assembling of boisterous and undesirable crowds on Indian reserves on the Sabbath to attend public games and contests such as football, baseball and horse-racing, etc. These games attract especially the undesirable elements from the adjoining municipalities. This amendment will enable a band that has been afflicted in this way to make regulations to provide for the situation."[123] 32. However, there is some reason to be suspicious of these apparently altruistic intentions. The 'undesirable elements', for example, attending the reserves, usually came "from the outside" and were in fact "white men"[124] However, it appears that despite the fact that the federal government was able to regulate trespassing on reserves, no attempt was made to regulate the attendance of these men by the federal government[125] While one of the goals of this provision was to address the bringing of liquor onto reserves, there was no mention of same in the provision itself. Thus because some white men behaved 'badly', Indian persons faced the prospect of being prohibited from playing sport on Sunday[126] Subsequent Legislative Amendments 33. Amendments to the Indian Act in 1951 served to repeal many of the provisions discussed above. When the Indian Act was amended in 1951, the provisions concerning the celebration of festivities, dances and ceremonies and Indians 'wasting' their time in a poolroom and associated penalties were repealed and not re-enacted[127] The extensive regulation-making provision of 1927, empowering the Superintendent General of Indian Affairs to "make regulations governing the operation of pool rooms, dance halls and other places of amusement on Indian reserves[,]" was amended in 1951 to provide the Governor in Council, rather than the Superintendent General of Indian Affairs, with more expansive powers in this area[128] The expanded powers now provide not only for regulation-making ability in relation to the operation of pool rooms, dances halls and other places of amusement to include the ability to make regulations concerning the supervision and control of these places[129] The Governor in Council has the same powers in relation to this provision as at May 2001[130] 34. The 1951 amendments repealed the powers related to the chief or chiefs of any band in council to control and prohibit activities on the Sabbath[131] The section concerning a band council's power in relation thereto, however, was repealed and subsequently re-enacted, eliminating reference to the Sabbath[132] The same provision is in the most recent version of the Indian Act[133] While the removal of reference to the Sabbath might be seen as liberating since Indian persons were no longer subject to have various activities controlled or prohibited on Sundays, the fact that the identical provision exists, save for reference to the Sabbath, means that such behaviour is now capable of being restricted at any time - thus effectively creating the potential of a month of Sundays. 35. Since the powers of Band Councils were expanded, the amendments were perceived as 'progressive' for the time period. During debate in the House of Commons on the provision expanding the powers of Band Council, for example, it was noted that "[t]he powers of the council are broadened to bring them more into line with those ordinarily exercised by municipal authorities, in order that Indians may become more self-reliant and have greater power of governing themselves and the reserves in which they reside."[134] This progressive philosophy, however, did not inform debate on the band council's by-law making powers. In 1926-1927, for example, during debate in the House of Commons concerning the shared areas of power between the then Superintendent-General's expansive regulation-making power in relation to the operation of pool rooms, dance halls and other places of amusement and the band council's by-law making power in these same areas, Superintendent Stewart emphasized that his regulations would be applicable across Canada while a band council's by-laws would be directed only at local matters[135] Conclusion 36. Part I of this paper has considered the efforts of sport organizations to directly exclude First Nations peoples from participation in sport, particularly from participating in 'Indian-derived cultural practices[136] (i.e., sport events) by non-First Nations sport organizations. It has also considered the effect of federal government initiatives that, either indirectly or directly, impacted upon the participation of First Nations persons in sport. These considerations suggest possible historic bases for the fact that many First Nations peoples may have stopped playing traditional sport and may suggest why First Nations peoples are under-represented in the Canadian sport system despite being deeply entrenched in the cultural history of First Nations peoples. These considerations are also illustrative of federal government initiatives designed to 'civilize', and later assimilate, Indian peoples. In turn, these initiatives are linked, either directly or indirectly, to "many of the social ills facing Aboriginal people"[137] and the "heightened health risks"[138] faced by Aboriginal youth. In Part II of this paper, I consider the impact of these initiatives on Aboriginal peoples in further detail. Impact of Initiatives 37. Federal government initiatives aimed at the 'civilization' and assimilation of First Nations peoples have been linked either directly or indirectly with the contemporary "social ills"[139] facing First Nations peoples. The prohibitions concerning participation in and/or attendance at festivals, dances and other ceremonies, for example, caused serious harm to the traditions of First Nations. British Columbia Provincial Court Judge Scow, for example, informed the Royal Commission on Aboriginal Peoples, that: "The Indian Act did a very destructive thing in outlawing the ceremonials. This provision of the Indian Act was in place for close to 75 years and what that did was it prevented the passing down of our oral history. It prevented the passing down of our values. It meant an interruption of the respected forms of government that we used to have, and we did have forms of government be they oral and not in writing before any of the Europeans came to this country. We had a system that worked for us. We respected each other. We had ways of dealing with disputes. We did not have institutions like the courts that we are talking about now. We did not have the massive bureaucracies that are in place today that we have to go through in order to get some kind of recognition and some kind of resolution."[140] 38. The residential school system wreaked havoc on the lives of many Aboriginal peoples. Many First Nations peoples, for example, continue to live with the legacy of neglect and abuse and decades of indoctrination by residential school teachers that Indian peoples, and their children and families were "pagan"and represented an "inferior state of being"[141] courtesy of the residential system. The effect of the residential school system has been likened to the fall out from a nuclear explosion - while the blast from the explosion damaged "some more directly than others", the resulting "fall-out and nuclear winter" has "affect[ed] everyone."[142] 39. Many First Nations peoples have faced, felt the effect of, the combined effect of the residential school system, decades of dislocation attributed to forced government relocation, and/or destruction of subsistence economies "through a combination of development projects and unilateral restrictions on access to wildlife and resources"[143] The resulting "grinding poverty and economic destruction,"[144] have resulted in "low incomes, high unemployment, lack of opportunities and options, lack or irrelevance of education, substance abuse, loneliness, [] community fragmentation"[145] and "family violence, depression and suicide"[146] Turpel writes, for example, that "[s]kyrocketing rates of diabetes, heart disease, fetal alcohol syndrome and mental health disorders have created a health care crisis that is a by-product of the assimilationist mentality that has insisted on changing First Nations lifestyles to suit southern Canada's industrial society."[147] 40. Another area where the effect of government initiatives aimed at 'civilization' and assimilation of First Nations peoples is also evident is the over-involvement of Aboriginal peoples in the criminal justice system and, in particular, the over-representation of Aboriginal peoples in provincial and federal institutions[148] In the context of sentencing, for example, the fall-out of federal government initiatives has the insidious effect of systemically discriminating against Aboriginal peoples in the sentencing process. Quigley, for example, writes that "[s]ocioeconomic factors such as employment status, level of education, family situation, etc., appear on the surface as neutral criteria. They are considered as such by the legal system. Yet they can conceal an extremely strong bias in the sentencing process. Convicted persons with steady employment and stability in their lives, or at least prospects of the same, are much less likely to be sent to jail for offences that are borderline imprisonment offences. The unemployed, transients, the poorly educated are all better candidates for imprisonment. When the social, political and economic aspects of our society place Aboriginal people disproportionately within the ranks of the latter, our society literally sentences more of them to jail. This is systemic discrimination."[149] 41. The existence of systemic discrimination also impacts upon Aboriginal youth. Jackson, for example, citing data from a 1976-1977 study, notes that a 'treaty' Indian boy living in Saskatchewan that turned 16 in 1976 had a 70% chance of staying in prison at least one time before turning the age of 25[150] The percentage for a male Métis or non-status Indian youth was 34%, and the figure dropped to 8% for a non-native male youth in that province[151] Jackson writes that "this means that in Saskatchewan, prison has become for young native men, the promise of a just society which high school and college represent for the rest of us[152] Placed in historical context, the prison has become for many young native people the contemporary equivalent of what the Indian residential school represented for their parents."[153] 42. In addition to higher rates of incarceration, the fall-out from this government imposed 'nuclear winter' has also manifested itself in "heightened health risks" for Aboriginal youth[154] First Nations youth, for example, have higher rates of suicide[155] substance abuse[156] and lower levels of education and employment opportunities than the non-Aboriginal population[157] Given that the population rate in First Nations communities is estimated to grow at twice the rate of the general Canadian population, and that approximately 25% of community members are between the ages of 10 to 24 years of age[158] the heightened health risks faced by Aboriginal peoples generally, and Aboriginal youth in particular, are profound. Conclusion 43. The myriad of critical challenges facing First Nations peoples, particularly First Nations youth, has led Aboriginal sport leaders to identify the area of youth sport and recreation as a key mechanism to address "many of the social ills facing Aboriginal people"[159] and the "heightened health risks"[160] faced by Aboriginal youth. Sport, for example, has also been likened to "the strongest type of medicine" because of its "preventative nature" owing to the power of sport "to rid our communities from many of the social ills facing Aboriginal people."[161] Given the importance sport to First Nations peoples, I consider in Part III why an alternative basis for a right to sport is important and suggest that a contemporary interpretation of the medicine chest clause in Treaty No. 6[162] supports such a right. The scope of the right is also considered. Arguments in Support of a Treaty Right to Sport 44. In this section of the paper, I consider why it is necessary to pursue a right to sport and present arguments in favour of a treaty right to sport that First Nations peoples may wish to consider the existence of a treaty right to sport as a means by which to obtain more meaningful access to sport and recreation opportunities. Need for a Right to Sport 45. As the discussion in Part II suggests, the situations faced by many Aboriginal peoples in Canada is at a critical point. While sport is not the panacea for the challenges faced by Aboriginal peoples, Aboriginal sport leaders have identified sport as having the capacity to promote the physical and social well-being of both individuals and communities. While federal legislative initiatives that either directly or indirectly affected the participation and attendance of First Nations peoples in sport have, for the most part, been repealed, "the powers of the Ministry and Governor-in-Council remain[] formidable."[163] (emphasis in original) Further, despite the federal government's intense interest in utilizing its constitutional powers over "Indians and land reserved to the Indians"[164] to introduce legislative initiatives that either directly or indirectly negatively affected the participation and attendance of First Nations peoples in sport, a similar concentrated legislative effort targeting First Nations peoples is markedly absent today. While it might be thought that the right to participate in sport and recreation is a 'right' that should be enjoyed by all persons living in Canada, to the extent that it can be established that such a right is conferred by a legal authority, such as a treaty, "[a] general right enjoyed by all citizens can nevertheless be made the subject of an enforceable treaty promise."[165] Therefore, "... treaty rights-holder not only has the right or liberty ... but may enjoy special treaty protection against interference with its exercise."[166] Arguments in Support of a Treaty Right to Sport 46. There are a number of distinctive branches to the doctrine of Aboriginal rights[167] These branches include "customary rights, powers of self-government, the fiduciary role of the Crown, and the status and effects of treaties."[168] The existence of a treaty right to sport would be significant since if such a right exists, and is unextinguished, it would fall within the protection of subsection 35(1) of the Constitution Act, 1982 and, as such, would be recognized and affirmed as an "existing aboriginal and treaty right[]."[169] This recognition itself would be significant in view of the Crown's obligation towards Aboriginal peoples. While the Crown has a fiduciary obligation to Aboriginal peoples generally[170] the existence of specific treaty undertakings, and rights arising therefrom, provide for specific fiduciary obligations in order to honour those undertakings[171] 47. In arguing that the medicine chest clause in Treaty No. 6 supports a treaty right to meaningful participation in sport there are three hurdles to be addressed: (i) the narrow interpretation of the medicine chest clause afforded by appellate courts in Saskatchewan; (ii) assuming a broad interpretation of the clause, how to fit the concept of participation in sport and recreation within a broader interpretation of that clause; and (iii) if such arguments were to succeed, the scope of such a clause. Case Law Interpreting Medicine Chest Clause 48. The point of departure for the analysis of an alleged treaty right are the specific words of the provision alleged to support the right in question[172] The medicine chest clause in Treaty No. 6 provides "[t]hat a medicine chest shall be kept at the house of each Indian Agent for the use and benefit of the Indians, at the direction of such Agent[.]"[173] A review of the limited cases interpreting the medicine chest clause in Treaty No. 6 reveals two very distinct approaches to the interpretation of that clause. The first case interpreting the medicine chest clause was a 1935 decision of the Exchequer Court of Canada, Dreaver et al. v. The King[174] (Dreaver) Justice Angers' decision in Dreaver evidenced a broad approach to treaty interpretation. The Dreaver decision was subsequently followed several decades later by the Saskatchewan Magistrate's Court in R. v. Johnson (Johnson, Magistrate Court) (decided between March 1965 and March 1966)[175] and R. v. Swimmer (Swimmer, Magistrate Court) (decided between May 1968 and December 1970)[176] The Saskatchewan Court of Appeal, however, in overturning both Johnston[177] and Swimmer[178] established a second more restrictive approach to the interpretation of the medicine chest clause[179] I argue however, that a 1999 decision of the Federal Court of Canada in Wuskwi Sipihk Cree Nation v. Canada (Minister of National Health and Welfare)[180] (Wuskwi Sipihk Cree Nation) combined with Supreme Court of Canada decisions which require that treaties be interpreted in a contemporary context[181] suggests that the interpretation of the medicine chest clause may have come full circle and that the restrictive interpretation favoured by the Saskatchewan Court of Appeal is no longer be good law and that Dreaver should be followed. 49. In Dreaver, George Dreaver, Chief of the Mistawasis band on the Mistawasis Reserve, and two others, sought to be reimbursed by the Crown for a sum of monies which they claimed had been deducted from monies otherwise owing to the band. A portion of the total amount deducted ($4,489.95 of the $20,309.26) concerned "drugs and medical supplies" and medicines[182] Chief Dreaver argued that the amount pertaining to drugs, medical supplies and medicines, should not have been deducted by the Crown from monies otherwise owing to the band since the band did not have to pay for any of these supplies pursuant to the medicine chest provision in Treaty No. 6. In other words, Indian peoples were entitled to all of the medicines, drugs or medical supplies that they required without incurring any charge[183] The Crown, on the other hand, argued that the Department of Indian Affairs, pursuant to the terms of Treaty No. 6, "had the privilege of deciding which medicines, drugs and medical supplies were to be furnished to the Indians gratuitously and which were to be charged to the funds of the band."[184] Justice Angers determined that since the medicine chest clause in Treaty No. 6 did not distinguish between which medicines, drugs or medical supplies could be included or excluded for the purposes of payment/reimbursement (and, to this end, might unquestionably have been more explicit)[185] the Crown did not have the privilege to pick and choose which medicines, drugs and medical supplies it wished to cover. Thus Justice Angers determined that "all medicines, drugs or medical supplies which might be required by the Indians of the Mistawasis Band were to be supplied to them free of charge."[186] 50. Justice Dreaver's decision was followed by Saskatchewan Magistrate's Court in R. v. Johnston[187] In that case, Mr. Johnston was been charged with failing to pay hospital tax under the Saskatchewan Hospitalization Act[188] He alleged that we was exempt from paying such tax pursuant to paragraph 23(1)(iv) of the Regulations under that Act[189] This particular provision exempted persons from paying hospitalization tax if they were eligible to receive "general hospital services from the federal government."[190] The magistrate in Johnson, following the decision of Justice Angers in Dreaver, found that the defendant was exempt from paying the hospitalization tax alleged to be outstanding and thus was not guilty of the offence with which he had been charged. The Magistrate in that case is reported to have stated: "Referring to the 'medicine chest' clause of Treaty No. 6, it is common knowledge that the provisions for caring for the sick and injured in areas inhabited by the Indians in 1876 were somewhat primitive compared to present day standards. It can be safely assumed that the Indians had limited knowledge of what provisions were available and it is obvious that they were concerned that their people be adequately card for. With that in view, and possibly carrying the opinion of Angers J., a step farther, I can only conclude that the 'medicine chest' clause and the 'pestilence clause' in Treaty No. 6 should be properly interpreted to mean that the Indians are entitled to receive all medical services, including medicines, drugs, medical supplies and hospital care free of charge."[191] 51. In R. v. Swimmer,[192] Mr. Swimmer was charged with failing to pay hospitalization tax pursuant to the Saskatchewan Hospitalization Act and with failing to pay a medical care premium under the Saskatchewan Medical Care Insurance Act[193] An exception to paying the requisite tax and premium, respectively, existed for those persons who were "entitled to have payment made at the entire expense of the Government of Canada" in respect of hospital services received by that person (para. 23(1)(iv) Saskatchewan Hospitalization Act) and in respect of any medical services received by that person (para. 21(1)(vi) Saskatchewan Medical Care Insurance Act)[194] The Magistrate's Court found that Mr. Swimmer was an Indian within the meaning of the Indian Act[195] and that the medicine chest provision in Treaty No. 6 was applicable to Mr. Swimmer thereby rendering Mr. Swimmer exempt from paying both the tax and the premium and therefore not guilty of the offences with which he was charged[196] The lower court judge is described as holding that the medicine chest clause "should be interpreted to mean that all Indians to whom the said Treaty applies are entitled to receive all medical services, including medicine, drugs, medical supplies and hospital care free of charge."[197] 52. Both the decisions in Johnston[198] and Swimmer[199] were reversed on appeal to the Saskatchewan Court of Appeal. The same five judge panel heard both cases and in both cases a unanimous decision of a five member panel of the appellate court was delivered by Culliton, C.J.S.. In Johnston, (decision of March 1966) Culliton, C.J.S., stated that he "express[ed] no opinion as to the correctness of the interpretation of the clause as made by Mr. Justice Anger[s], Culliton, C.J.S., found that the interpretation in Dreaver did not justify "the extended meaning attributed thereto by the learned Judge of the Magistrate's Court."[200] Culliton, C.J.S.'s claim aside, however, the appellate court decision in Johnston clearly expressed an opinion, albeit obiter, that ran contrary to the decision in Dreaver. In applying the "ordinary meaning"[201] or "plain reading"[202] to the interpretation of the phrase 'medicine chest', for example, Culliton, C.J.S., stated that the phrase "meant no more than the words clearly convey: an undertaking by the Crown to keep at the house of the Indian agent a medicine chest for the use and benefit of the Indians at the direction of the agent."[203] (emphasis in original) He unequivocally stated that "[t]he clause itself does not give to the Indians an unrestricted right to the use and benefit of the 'medicine chest' but such rights as are given are subject to the direction of the Indian agent... ."[204] 53. It is also apparent from reading the Johnson appellate court decision that Culliton, C.J.S., had difficulty with Justice Angers' approach to treaty interpretation in Dreaver. The discussion of treaty interpretation in Johnson at the appellate court level, for example, takes up two pages of the six page decision (midway through page 752 through to the end of the decision, midway through page 754). Culliton, C.J.S., for example, noted the importance of treaty provisions being interpreted based on "whatever authoritative record may be available of the discussion surrounding the execution of the treaty"[205] and that, in Dreaver, Justice Angers had interpreted the medicine chest clause based "largely on the basis of Chief Dreaver's testimony."[206] In Dreaver, Justice Angers had accepted Chief Dreaver's deposition that the monies deducted by the Crown concerning medicines, drugs or medical supplies from the total sum otherwise owing to the band pertained to the period between 1918-1919[207] This timing was important since it fell between the time that Treaty No. 6 was entered in by Commissioners for Her Majesty and the plain and Wood Cree and other tribes of Indians on the 23rd and 28th of August, and the 9th of September, 1876 and shortly before lands were 'surrendered' to the Crown pursuant to Treaty No. 6 in 1919[208] Justice Dreaver also accepted deposition evidence of Chief Dreaver concerning the latter's being present when the treaty in question was signed in 1876[209] about his having overheard conversations concerning the medicine chest clause and how it was "understood that all medicines were to be supplied free to the Indians"[210] and the fact that medicines were so supplied until the time of surrender[211] 54. The appellate court decision in Johnson[212] however, was not followed by the Magistrate's Court in Swimmer[213] and Swimmer was subsequently overturned on appeal by the same five judge panel that had heard Johnson[214] The appellate court decision in Swimmer is significant, however, because it elevated its obiter observation in Johnson concerning the plain reading of a treaty clause to the ratio decidendi in Swimmer[215] As noted earlier, however, Justice Wilson in the Manitoba Hospital case had decided that the Johnson appellate court decision's reference to interpreting treaty clauses based on the meaning "conveyed by the words themselves" had already elevated the appellate court's obiter statement in Johnson to ratio decidendi[216] 55. The most recent decision to address the interpretation of the medicine chest clause in Treaty No. 6 is the decision in Wuskwi Sipihk Cree Nation decision[217] In this decision, Prothonotary Hargrave decided a motion concerning the granting of a stay of a proceeding under the Federal Court Act. In dismissing the defendant's motion for a stay of proceedings, Prothonotary Hargrave had occasion to briefly address the issue of "jurisdiction over health care to First Nations."[218] After reviewing the decision of Justice Angers in Dreaver, and the decision of Culliton, C.J.S., writing for a unanimous court in Johnson, Prothonotary Hargrave expressed the opinion that "Mr. Justice Angers took a proper approach in his 1935 decision in Dreaver, reading the Treaty No. 6 medicine chest clause in a contemporary manner to mean a supply of all medicines, drugs and medical supplies. Certainly, it is clear that the Saskatchewan Court of Appeal took what is now a wrong approach in its literal and restrictive reading of the medicine chest clause in the 1966 decision in Johnston. In a current context, the clause may well require a full range of contemporary medical services."[219] 56. Prothonotary Hargrave referred to the Supreme Court of Canada decision in Nowegijick v. The Queen as authority for treaties (and statutes) being "liberally construed and doubtful expressions resolved in favour of the Indians."[220] He also referred to the Supreme Court of Canada's decision in Sparrow as authority for interpreting rights in a flexible manner "in order to permit their evolution" as opposed to adopting a 'frozen rights' approach where the right in issue is interpreted rigidly within the confines of that concept at the time the treaty was signed[221] The Court in Badger, for example, stated that "... it is well settled that the words in the treaty must not be interpreted in their strict sense nor subjected to rigid modern rules of construction."[222] The SCC has also championed a "flexible and evolutionary" approach to treaty interpretation" - in other words, an approach that "is sensitive to changing conditions and practices[]" and not a "frozen-in-time" approach[223] The decision in Marshall is authority for the treaty interpretation principles that treaties to be applied in a contemporary context[224] This approach to the interpretation of treaties signed with First Nations is due to the fact that treaties represent "an exchange of solemn promises between the Crown and various Indian nations."[225] As such, the nature of a treaty agreement is sacred[226] Further, since treaty interpretation constitutes a dealing between the Crown and Aboriginal peoples, the Crown's honour is necessarily at stake; thus, treaty interpretation "must be approached in a manner which maintains the integrity of the Crown."[227] To the extent that "it is always assumed that the Crown intends to fulfil its promises[][,] [n]o appearance of 'sharp dealing' will be sanctioned."[228] 57. The pronouncements from the Supreme Court of Canada concerning the interpretation of treaty rights would support the liberal approach adopted by Justice Angers in Dreaver and would appear to suggest that the Saskatchewan Court of Appeal decisions in Johnson and Swimmer are no longer correct[229] Assuming that the narrow interpretation hurdle can be overcome, it is necessary to consider how the concept of participation in sport within a broader interpretation of that clause. Fitting Sport within the Medicine Chest Clause 58. In considering arguments in favour of sport as a form of medicine, it is essential that these arguments be understood from the point of view of Aboriginal peoples. In the context of determining what constitutes a practice, custom or tradition for the purposes of section 35(1) of the Constitution Act, 1982, the Supreme Court of Canada has held that it is crucial to be sensitive to the perspectives of Aboriginal people, and that what constitutes a practice, custom or tradition that is of central significance to an aboriginal culture must be examined through the eyes of the Aboriginal people themselves[230] It is respectfully submitted that such an approach should be extended to the context of treaty interpretation - i.e., what constitutes 'medicine' for Aboriginal peoples should be approached from the perspective of Aboriginal peoples. Generally speaking, non-Aboriginal concepts of health are informed by "[s]cientific thought [which] distinguishes the body from the person, establishes a dichotomy between the body and the spirt, and separates the individual from the human and physical environment."[231] From a fragmented western vantage point, being 'healthy' meant, and generally still means, being free from physical illness. Even when the concept of 'health' broadened to include mental health, the emphasis is generally on "the human organism and its symptoms of dysfunction."[232] 59. My understanding is that many First Nations peoples health from a different perspective - i.e., health is perceived as holistic and integrated and that this understanding stems from traditional teachings that give equal weight to the physical, spiritual, mental and emotional aspects of themselves which are interdependent[233] Balance and harmony among these factors results in well-being[234] A balance between these factors represented, and continues to represent, 'health' and it is this conception of 'health' that is essential "to live and grow."[235] To the extent that sport contributes to this balance, both individually and collectively, sport is an element in the health equation. 60. One approach that could be advanced in an effort to include opportunities for sport within a contemporary interpretation of the medicine chest clause in Treaty No. 6 is by emphasizing the medicinal value and healing properties associated with sport activity[236] Winther, for example, writes that "[t]he aboriginal view of games is a holistic approach that focuses on culture, education, health and the spiritual significance of sport."[237] Belief in healing properties of games, for example, was observed by Jesuit priests in early 17th century. The priests observed the Huron people playing lacrosse and other games. One of the "most healing" games was reported to be lacrosse[238] Barnes and others have observed that Aboriginal peoples played lacrosse for a number of reasons including "to thank the Creator, to honour members of the community who had made exceptional contributions, and to assist in healing the sick."[239] Lacrosse has been identified as a game played for medical purposes where it was frequently the case that medicine men served as officials. The power of sport and culture to heal is also depicted in the Ditdaht creation story that was used as the symbol for the 1997 North American Indigenous Games: "In the story, Raven offers his knowledge of the world to the people for safe keeping. Over the course of generations, this knowledge is passed on, and the spirit of transformation begins to unfold. Within the context of the North American Indigenous Games, Raven symbolizes transformation, and speaks to the healing power of sports and culture."[240] Sport also played a role in the health of communities. Historically, for example, sport was used as a dispute resolution mechanism to settle conflicts between tribal communities[241] To the extent that sport plays a significant influence in both the development of the person and the community, sport and recreation can be viewed to be integral to the concept of health and a means of preventative medicine. 61. In addition to perceiving of sport itself as possessing medicinal and healing properties vis. a vis. the person and the community, there is also support for the concept that sport itself was, and is, perceived as 'medicine'. The term 'medicine', for example, is frequently used by Aboriginal sport leaders to refer to the qualities of sport and recreation. Alwyn Morris writes, for example, that "... sport in our communities is often referred to as medicine, the strongest type of medicine because it is preventative medicine that has the power to rid our communities from many of the social ills facing Aboriginal people."[242] Morris also refers to youth sport and recreation as "one of the primary means for community wellness" and to sport and recreation as "prevention for the social dilemma that our youth face."[243] Scope of Right 62. If it can be established that the medicine chest clause includes a right to participation in sport, the scope of the right must be considered. The test for determining whether an activity is incidental to a right was set out by the Supreme Court of Canada in Simon[244] and further developed in Sundown[245] and R. v. Côté[246] (Côté)These cases all involved hunting and fishing rights, rights which Imai notes, "necessarily involve[] related activity."[247] In Simon, Chief Justice Dickson [as he then was] writing for the court, stated that "[i]t should be clarified at this point that the right to hunt to be effective must embody those activities reasonably incidental to the act of hunting itself, an example of which is travelling with the requisite hunting equipment to the hunting grounds"[248] (emphasis added) Justice Cory wrote in Sundown: "[i]n my view it should be approached in this manner. Would a reasonable person, fully apprised of the relevant manner of hunting or fishing, consider the activity in question reasonably related to the act of hunting or fishing? It may seem old fashioned to apply a reasonable person test but I believe it is both useful and appropriate. For example, in the past it was reasonably incidental to hunting rights to carry a quiver of arrows. Today it is reasonably incidental to hunting rights to carry the appropriate box of shotgun shells or rifle cartridges. A form of shelter was always necessary to carry out the expeditionary hunting of the Joseph Bighead First Nation. At the time of the treaty, the shelter may have been a carefully built lean-to. That shelter appropriately evolved to a tent and then a small cabin. Thus, the reasonable person, informed of the manner of hunting at the time of the treaty, can consider it in the light of modern hunting methods and can determine whether the activity in question - the shelter -- is reasonably incidental to the right to hunt."[249] In focusing on "whether a particular activity is 'essential' in order for hunting to be possible but rather upon the concrete question of whether the activity was understood in the past and is understood today as significantly connected to hunting. Incidental activities are not only those which are essential, or integral, but include, more broadly, activities which are meaningfully related or linked ."[250] (emphasis added) Thus in Simon, the Supreme Court of Canada found that despite the fact that "the right to hunt was not absolute, to be effective, it had to include reasonably incidental activities, such as traveling with the necessary equipment to the hunting grounds and possessing a hunting rifle and ammunition in a safe manner."[251] In Sundown, the Court found that the hunter was permitted to construct a cabin in a park as a hunting base[252] Imai notes that the Court found that "the express right to hunt included the implied right to build shelters required to carry out the hunt[]"[253] In Côté the SCC found that the right to fish included the incidental right of educating Aboriginal youth concerning fishing[254] 63. To the extent that a contemporary interpretation of the medicine chest clause would support the inclusion of a right to participate in sport and recreation activities, it is possible to argue that activities such as coaching and training, for example, may be considered incidental to that right. Support for this argument is found in Côté where the incidental right to education concerning fishing was included in the right to fish. While Mr. Côté on the facts in that case was not fishing per se but rather teaching younger Aboriginal students "the traditional Algonquin practices of fishing for food", the Court determined that this should not be permitted to change the nature of the appellant's claim. The Court wrote that: "[i]n the aboriginal tradition, societal practices and customs are passed from one generation to the next by means of oral description and actual demonstration. As such, to ensure the continuity of aboriginal practices, customs and traditions, a substantive aboriginal right will normally include the incidental right to teach such a practice, custom and tradition to a younger generation."[255] Viewed from this perspective, assuming that it was possible to establish a sport or recreation activity as an Aboriginal practice, custom or tradition, the right to teach such a practice, custom or tradition could be said to include the right to coach[256] This would be significant since it may permit more National Certified Coaching Program courses to be held in Aboriginal communities and taught by Aboriginal peoples using more culturally appropriate information. 64. Expanding on the decision in Simon, (and assuming that a contemporary interpretation of the medicine chest clause would support the inclusion of a right to participate in sport and recreation activities), one could argue that to the extent just as the construction of a hunting shelter was seen as "reasonably incidental to the right to hunt[]"[257] in Sundown, the construction of recreation and sport facilities is integral to the right to meaningful participation opportunities in recreation and sport. Moreover, since physical activity itself may includes other physical activities which are meaningfully related and linked, it is possible that other still further arguments based on the concept of incidental rights could be advanced. Conclusion 65. A contemporary interpretation of the medicine chest clause in Treaty No. 6 "accords with the generally accepted view that Indian treaties should be given a fair, large and liberal construction in favour of the Indians."[258] Assuming that the medicine chest clause in Treaty No. 6 can be so interpreted, resort to the medicinal value and healing properties associated with recreational and sport activity and sport as medicine would permit the inclusion of the concept of sport and recreation within the context of the medicine chest clause. By way of analogy to cases addressing the concept of incidental rights, arguments can be made in support of incidental rights to coaching and sport/recreational facilities. Overall Conclusion 66. A consideration of the exclusion of First Nations peoples from sport events by non-Aboriginal sport organizations and federal legislative initiatives that either directly or indirectly impacted upon Aboriginal participation in or attendance at sport events has provided a historic basis from which to begin to understand why many Aboriginal peoples have stopped playing traditional sport and are generally under-represented in sport in Canada. Federal legislative initiatives in this area were considered as part of a continuum of other federal initiatives designed to civilize, and later assimilate, Aboriginal peoples into Canadian society. The challenges faced by Aboriginal peoples as a result of these initiatives is overwhelming and unlikely to be resolved in the near future. While sport does not represent the panacea for such challenges, it has been identified by First Nations people as a form of strong medicine that can assist First Nations peoples[259] To the extent that a contemporary interpretation of the medicine chest clause at Treaty No. 6 supports a treaty right to sport, the most pressing concern of government concerning sport and recreation for Aboriginal peoples is not whether the right to meaningful participation opportunities exist but how such meaningful recreation and sport opportunities are defined and achieved. Aboriginal peoples must have the freedom and means by which to construct a recreation and sport system that provides meaningful opportunities for participation by Aboriginal peoples - a system constructed by, and for, Aboriginal peoples. Notes [1] Minister's Task Force Report on Federal Sport Policy, Sport: The Way Ahead - The Report of the Minister's Task Force on Federal Sport Policy (Ottawa: Minister of State, Fitness and Amateur Sport, 1992) at 7. (Task Force Report) [2] Submission by R. Desnomie, Aboriginal Physical Education: For Middle Years (Trades Six to Nine) () [3] Ibid. [4] Ibid. [5] A. Morris, "The Olympic Experience: An Aboriginal Perspective" 9-11 at 9 in T. Taylor, ed., How You Play the Game: Papers from the First International Conference on Sports and Human Rights (September 1 - 3, 1999) (Australia: Human Rights Council of Australia, 2000) (ISBN 1 8636 566 2). (The Olympic Experience) In R. v. Nelson, Dr. Kinew, an expert testifying concerning Ojibway peoples, described "everything in Ojibway life" as being "enmeshed together; it's part of the whole". "... for Ojibway society it's - you don't compartmentalize amusements and play. It's part of the character of the society. It's interrelated to everything that people do. If you're going to meet with other Ojibway families in the annual round, you get together, You play games and gamble, that's part of society[]" (Dr. Kinew as quoted in R. v. Nelson [1997] M.J. No. 654 (Man. Prov. Ct.) at para. 178.) (Nelson, Trial Division) [6] Morris, "The Olympic Experience", supra note 6. Desnomie notes that the original name for lacrosse was 'Tokonhon', an Iroquois word meaning 'little brother of war'. When French settlers saw the stick used to play Tokonhon they perceived the stick as similar to a Bishop's staff named "la crossier". (Supra note 3) [7] A. Morris, Aboriginal Sport Circle Presentation (Corner Brook, Newfoundland, 1999) at 9. (Aboriginal Sport Circle Presentation) [8] Ibid. at 2. [9] Ibid. at 9. [10] Supra note 2 at 153. [11] See, for example, Morris, supra note 6. [12] See, for example, Desnomie, supra note 3 concerning lacrosse. See also Morris, "The Olympic Experience", supra note 6. [13] See, for example, Task Force Report, supra note 2 and Morris, Aboriginal Sport Circle Presentation, supra note 8 at 2. [14] Treaty No. 6 is entitled, "Between Her Majesty the Queen and the Plains and Wood Cree Indians and other tribes of Indians at Fort Carlton, Fort Pitt and Battle River" (Ottawa: Queen's Printer). The terms of the treaty itself provide that Treaty No. 6 was concluded on August 23rd and 28th, and September 9th, 1876. Youngblood Henderson refers to this as a "Victorian treaty". (J. [sáké] Youngblood Henderson, "Empowering Treaty Federalism" (1994) 58 Sask. L. Rev. 241 at 267. For reprints of treaties please see R. A. Reiter, The Law of Canadian Indian Treaties (Edmonton: Juris Analytica, 1995) at Part III. [15] [1990] 1 S.C.R. 1075. (Sparrow) Nor do I address the issue of whether sport or recreation is an 'Aboriginal' right activity (i.e., "an element of a practice, custom or tradition integral to the distinctive culture of the aboriginal group claiming the right."(R. v. Gladstone, [1996] 2 S.C.R. 723 at 743, Lamer, C.J.C., referring to test in R. v. Van der Peet, [1996] 2 S.C.R. 507 at para. 46) (Van der Peet) I plan to consider these issues in a future paper. [16] P. Macklem, "Aboriginal Rights and State Obligations" 36(1) (1997) Alberta L. Rev. 97 at 99. [17] See, for example, S. Haslip, "Aboriginal Sentencing Reform in Canada - Prospects for Success" (March 2000) Vol. 7(1) Murdoch University Electronic Journal of Law ; S. Haslip, "Who's Zooming Who? Sentencing Reform, Aboriginal Offenders and R. v. Gladue (Summer 2000) Vol. 5(2) Justice as Healing 1 and S. Haslip, "First Nations Women as Keepers of the Culture: A Consideration of the Roles and Responsibilities of First Nations Women (Fall 1999) Vol. 2(2) Journal of Indigenous Thought [18] For complete reference, please refer to supra note 15. [19] Constitution Act, 1867 (U.K.), 30 & 31 Vict., c.3, reprinted in R.S.C. 1985, App. II, No. 5 (formerly the British North America Act, 1867.) In Canada, legislative powers are distributed between the Parliament of Canada (the federal government) and the legislatures of the provinces. pursuant to sections 91 and 92 of the Constitution Act, 1867, respectively. [20] S. Imai, Aboriginal Law Handbook (2d ed.) (Scarborough: Carswell, 1999) at 10. [21] Ibid. at 11. [22] Ibid. [23] Ibid. [24] [1939] S.C.R. 104. See also P. Hogg, Constitutional Law of Canada (3d ed.) (Scarborough: Carswell, 1992) at 666. [25] Hogg, supra note 25. [26] Supra note 21 at 11. [27] Canadian Charter of Rights and Freedoms, ss 35(2), Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. [28] Hogg, supra note 25 at 688. [29] Supra note 21 at 11. [30] Ibid. [31] Supra note 2 at 22. [32] See V. Paraschak, "Fin de Siècle Native Sport: The 'Traditions' Continue". North American Society for Sport History Conference (May 1999) (College Park, Pennsylvania). Copy of paper on file with writer. [33] Royal Commission on Aboriginal Peoples, Final Report, Volume 1 - Looking Forward, Looking Back Available online at [34] Supra note 33 at 2. [35] F. Cosentino, "A History of the Concept of Professionalism in Canadian Sport" (1975) 6(2) Canadian Journal of History of Sport and Physical Education 75 at 78 (History of Professionalism). [36] S.C. 1876, c. 18, ss. 3(12). The provision defining persons as excluding Indians was finally repealed by S.C. 1951, c. 29, s. 123. See also H. Foster, "Forgotten Arguments: Aboriginal Title and Sovereignty in Canada Jurisdiction Act Cases (1992) 21 Mta. L.J. 343 at 370. [37] C. Ballem, "Missing from the Canadian Sport Scene: Native Athletes" (1983) XIV(2) Canadian Journal of History of Sport 33 at 33. The converse was also true - when an Aboriginal person lost "they were considered inferior, lacking the discipline necessary for training to compete against the white man." (Ibid.) The characterization of Tom Longboat, an Onondaga man who competed in the Olympics, is illustrative of same. According to Bruce Kidd, Longboat "won the Boston Marathon in world record time, was the first 'World's Professional Marathon Champion', and broke countless records. ... Yet despite magnific[e]nt performances and frequent battles for his services, the native runner has always been considered an athlete manqué. Within months of his first triumph he was accused of neglecting training and dissipating his 'natural' fitness on late-night alcoholic binges." B. Kidd, "In Defence of Tom Longboat" (December 1983 XIV(2) Canadian Journal of History of Sport 34 at 34. See also F. Cosentino, Afros, Aboriginals and Amateur Sport in Pre World One Canada (Ottawa: Canadian Historical Association, 1998) at 20-23 (Amateur Sport in Pre World One Canada); M.A. Salter, "The Indian Athlete: Exploiting or Being Exploited?" North American Society for Sport History Proceedings and Newsletter (1976) at 24 and K.G. Jones, "Thomas Longboat: A Great Canadian Sportsman" Second Canadian Symposium on the History of Sport and Physical Education (1972) Windsor, Ontario. [38] Cosentino, History of Professionalism, supra note 36 at 78. [39] Ibid. [40] Ibid. [41] See, for example, Cosentino, History of Professionalism, supra note 36 and Cosentino, Amateur Sport in Pre World One Canada, supra note 38 at 13-23. [42] Cosentino, History of Professionalism, supra note 36 at 77. Indian persons, along with persons of colour and persons of Irish and Scottish descent were perceived as 'posing a threat' to predominantly English-speaking society. (Ibid.) [43] Ibid. at 79. See also Cosentino, Amateur Sport in Pre World One Canada, supra note 38 at 19. [44] Cosentino, Amateur Sport in Pre World One Canada, supra note 38 at 19. [45] Cosentino, History of Professionalism, supra note 36 at 79. [46] Ibid. [47] Ibid. [48] Ibid. Additional time also meant that people were able to watch sports, thus creating a "commercial basis for sport". (Ibid.) This increased commercial interest meant that "[a]n athlete could not only earn money for participating in the sport, he might also be give a good job, a situation to entice him to play." (Ibid.) This translated into increased interest in skill development and, by the twentieth century, "the concept was taking hold that 'profession' meant not only one who competed for money but also one with a high degree of skill."(Ibid. at 80) As Cosentino notes, the reverse was also considered to be true: if one received no money for playing in a sport, then one "could not be very good". (Ibid.) Since an amateur, by definition, was unable to receive compensation, he was perceived as one who was not "good enough" to be a professional athlete. (Ibid.) The concept of a professional possessing a high level of skill and being paid was to have a significant effect on the concept of amateur. If a professional was an athlete who possessed a high skill level and was paid to play because of his skill level, then the more skilled an athlete, the more money he (or she) should receive. (Ibid. at 80) This changing concept of 'professional' meant that an Indian athlete who earned money through sport was now excluded as a 'professional' and therefore ineligible for competition not due to his Indian status but rather due to his having received payment through sport. (Ibid. at 79) Today, amateur athletes may receive compensation, but these monies are stored in trust funds for the athlete. (Johnson v. Athletics Canada [1997] O.J. No. 3201 (Gen. Div.)). [49] Cosentino, History of Professionalism, supra note 36 at 75. [50] Ibid. [51] Ibid. at 75-76. [52] Ibid. [53] Ibid. [54] Ibid. at 76. [55] Ibid. [56] A. Morris, "The Olympic Experience", supra note 6. [57] Supra note 20. [58] See, for example, the Report of the Royal Commission on Aboriginal Peoples, supra note 34. [59] M.E. Turpel in O. Mercredi and M.E. Turpel, In the Rapids: Navigating the Future of First Nations (Toronto: Penguin Books, 1994) at 3. (In the Rapids) [60] Indian Act, S.C. 1876, c. 18, ss. 3(3). The Indian Act continues to define 'Indian'. (R.S.C. 1985, c. I-5, s. 2(1)) [61] Supra note 37. [62] M.E. Turpel in O. Mercredi and M.E. Turpel, In the Rapids, supra note 60 at 4. [63] Ibid. at 4. [64] Cariboo Tribal Council, "Faith Misplaced: Lasting Effects of Abuse in a First Nations Community" 8(2) Canadian Journal of Native Education as cited in Canadian Panel on Violence Against Women, Final Report of the Canadian Panel on Violence Against Women: Changing the Landscape: Ending Violence-Achieving Equality viz. a viz. Aboriginal Women (Ottawa: Ministry of Supply and Services Canada, 1993) at 154. See also J.R. Miller, Shingwauk's Vision: a history of residential schools in Canada (Toronto: University of Toronto Press, 1996). See also J.S. Milloy, A National Crime: The Canadian Government and the Residential School System, 1879 to 1986 (Winnipeg: University of Manitoba Press, 1999). [65] See A.C. Hamilton and C.M. Sinclair, eds., Report of the Aboriginal Justice Inquiry of Manitoba, Vol. 1: The Justice System and Canada's Aboriginal People (Winnipeg: Queen's Printer, 1991) at 478. [66] Ibid. [67] Ibid. [68] Ibid. [69] J. Leslie and R. Macguire, eds., The Historical Development of the Indian Act (2d ed.) (Ottawa: no publisher listed, 1979) at 151. [70] See, for example, the Report of the Royal Commisson on Aboriginal Peoples, supra note 34. The following, for example, appears in that report: "In 1921, the deputy superintendent general wrote to one of his western officials, urging him in the following terms to find alternatives to what he clearly misunderstood to be a mere recreational activity: 'It has always been clear to me that the Indians must have some sort of recreation, and if our agents would endeavour to substitute reasonable amusements for this senseless drumming and dancing, it would be a great assistance.'" (Ibid.) [71] S.C. 1884, c. 27, s. 3. [72] Supra note 34. [73] J.H. Marsh, ed., Canadian Encyclopedia (2d ed.) Vol. 3 (Edmonton: Hurtig Publishers, 1988) at 1731, article written by R.R. Gadacz. [74] Supra note 34. While this provision was passed by the government, the Royal Commission on Aboriginal Peoples reports that at least in the province of British Columbia, support for the prohibitions came from "missionaries and Christian converts among the west coast tribes rather than from government officials." (Ibid.) [75] Supra note 72. [76] Ibid. [77] Supra note 34. [78] Ibid. [79] Ibid. [80] Ibid. [81] Ibid. [82] S.C. 1895, c. 35, s. 6., amending R.S.C. 1886, c. 43, s. 114 (S.C. 1884, c. 27, s. 3). Section 6 of the 1895 Act reflected a drafting error. As the section read when enacted an Indian or other person would have to engage in, or assist in celebrating or encouraging either directly or indirectly another to celebrate any Indian festival dance or other ceremony and engage or assist in a celebration or dance where the wounding or mutilation of a body occurred. This apparent oversight was remedied by changing the 'and' to 'or' in the 1906 legislation. The penalty for contravening this provision remained the same. (R.S.C. 1906, c. 81, s. 149 amending S.C. 1895, c. 35, s. 6 amending R.S.C. 1886, c. 43, s. 114 (S.C. 1884, c. 27, s. 3). [83] Ibid. [84] Ibid. [85] Ibid. [86] Supra note 34. [87] Ibid. [88] Ibid. [89] Ibid. [90] Ibid. S.C. 1918, c. 26, s. 7, S.C. 1914, c. 35, s. 8, amending R.S.C. 1906, c. 81, s. 149 amending S.C. 1895, c. 35, s. 6 amending R.S.C. 1886, c. 43, s. 114 (S.C. 1884, c. 27, s. 3). [91] Supra note 34. [92] S.C. 1918, c. 26, s. 7. [93] Supra note 34. [94] Ibid. S.C. 1914, c. 35, s. 8, amending R.S.C. 1906, c. 81, s. 149 amending S.C. 1895, c. 35, s. 6 amending R.S.C. 1886, c. 43, s. 114 (S.C. 1884, c. 27, s. 3). [95] S.C. 1914, c. 35, s. 8, amending R.S.C. 1906, c. 81, s. 149 amending S.C. 1895, c. 35, s. 6 amending R.S.C. 1886, c. 43, s. 114 (S.C. 1884, c. 27, s. 3). [96] Dominion of Canada, Debates of the House of Commons (1930) Vol. II (Ottawa: F.A. Acland, 1930) at 1116). Debate of March 31, 1930. [97] S.C. 1914, c. 35, s. 8, amending R.S.C. 1906, c. 81, s. 149 amending S.C. 1895, c. 35, s. 6 amending R.S.C. 1886, c. 43, s. 114 (S.C. 1884, c. 27, s. 3). [98] Ibid. [99] Ibid. Presumably the omission of the word 'performance' was an oversight. [100] S.C. 1932-33, c. 42, s. 10. [101] S.C. 1932-33, c. 42, s. 10 amending R.S.C. 1927, c. 98 s. 140, S.C. 1918, c. 26, s. 7. S.C. 1914, c. 35, s. 8, amending R.S.C. 1906, c. 81, s. 149 amending S.C. 1895, c. 35, s. 6 amending R.S.C. 1886, c. 43, s. 114 (S.C. 1884, c. 27, s. 3). [102] Dominion of Canada, Debates of the House of Commons (1933) Vol. III (Ottawa: F.A. Acland, 1933) at 2611. Debate of March 1, 1933. According to Honourable Member Mr. Reid, "hundreds of years ago a measure of this kind was passed having reference to Scotchmen, and they have not recovered from that insult to this day." (Ibid. at 2612) [103] D.J. Halpin, Debates of the Senate 1932-1933 (Ottawa: F.A. Acland, 1933) at 497. Debate of May 11, 1933. The reality today is very different. Paraschak, for example, has described the government's selective 'construction of colourful images' of Aboriginal peoples in costume during the opening ceremonies of major games held in Canada for national and international consumption under the guise of a public demonstration of the respect that Canada shows Aboriginal peoples. (V. Paraschak, "Aboriginal Inclusiveness In Canadian Sporting Culture" An Image Without Substance?" Sport as Symbol, Symbols in Sport: Proceedings of the 3rd ISHPES Congress, Capetown, South Africa, 1995 347-356 at 11 and 1 of copy of author's paper on file with writer.) [104] Dominion of Canada, Debates of the House of Commons (1933) Vol. III, supra note 103 at 2609. [105] R.S.C. 1927, c. 98, s. 95(g). [106] R.S.C. 1927, c. 98, s. 95(3). [107] R.S.C. 1928, c. 98, s. 95(2). [108] Supra note 34. [109] S.C. 1930, c. 25, s. 16 amending R.S.C. 1927, c. 98, s. 140. [110] Ibid. [111] Ibid. [112] Ibid. [113] Ibid. [114] Ibid. [115] Supra note 97. The timing of the amendment occurred just several years prior to the amendment eliminating reference to "in aboriginal costume" noted above. [116] Ibid. [117] Ibid. [118] S.C. 1930, c. 25, s. 9 amending R.S.C. 1927, c. 98, s. 101. [119] S.C. 1930, c. 25, s. 17 amending R.S.C. 1927, c. 98, s. 185. [120] Supra note 97 at 1112. [121] Ibid. [122] D.J. Halpin, Debates of the Senate (1930) (Ottawa: F.A. Acland, 1930) at 155. Debate of April 8, 1930. [123] Dominion of Canada, Debates of the House of Commons (1930) Vol. II, supra note 97 at 1117 (referring to "the assembling of boisterous and undesirable crowds on Indian reserves"). D.J. Halpin, Debates of the Senate (1930), supra note [123] (referring to quote in its entirety). [124] Supra note 97 at 1117. [125] R.S.C. 1927, c. 98 s. 34. [126] Supra note 97 at 1117. [127] S.C. 1951, c. 29, s. 123. [128] R.S.C. 1927, c. 98, s. 95(g), repealed by S.C. 1951, c. 29, s. 123, re-enacted in amended form by S.C. 1951, c. 29, para. 72(1)(e)), R.S.C. 1952, c. 149, s. 72(1)(e), R.S.C. 1970, c. I-6, para. 80(1)(m), R.S.C. 1985, c. I-5, 81(1)(m). [129] S.C. 1951, c. 29, para. 72(1)(e)). [130] R.S.C. 1985, c. I-5, 81(1)(m). [131] S.C. 1930, c. 25, s. 9, amending R.S.C. 1927, c. 98, s. 101, repealed by S.C. 1951, c. 29, s. 123. [132] S.C. 1930, c. 25, s. 17, amending R.S.C. 1927, c. 98, s. 185, repealed and reinstated by S.C. 1951, c. 29, s. 123. Specific reference to council's powers is found at S.C. 1951, c. 29, para. 80(1)(m). [133] R.S.C. 1985, c. I-5, 81(1)(m). As of May 2001 this provision is still in force. [134] D.J. Halpin, Debates of the Senate (1951) (Ottawa: F.A. Acland, 1951) at 458. Debate of May 23, 1951. [135] Dominion of Canada, Debates of the House of Commons (1926-1927) Vol. I at 319-320. [136] Supra note 33 at 2. [137] A. Morris, Aboriginal Sport Circle Presentation, supra note 8 at 9. [138] Ibid. at 2. [139] Ibid. [140] Supra note 34. [141] C.A. Hamilton and C.M. Sinclair, eds., supra note 66. [142] Cariboo Tribal Council, supra note 65. [143] M.E. Turpel in O. Mercredi and M.E. Turpel, In the Rapids, supra note 60 at 4-5. [144] Ibid. at 4. [145] R. v. Gladue, [1999] 1 S.C.R. 688 at 742. (Gladue) [146] M.E. Turpel in O. Mercredi and M.E. Turpel, In the Rapids, supra note 60 at 4. [147] Ibid. [148] See, for example, factors outlined in Gladue, supra note 146 and references cited therein, R. v. Williams, [1998] 1 S.C.R. 1128; M. Jackson, "Locking Up Natives in Canada" (1989) 23 U.B.C. L. Rev. 215; Government of Manitoba and Public Inquiry into the Administration of Justice and Aboriginal People, Report of the Aboriginal Justice Inquiry of Manitoba/Public Inquiry into the Administration of Justice and Aboriginal People, Vol. 1; Hamilton and Sinclair, supra note 66; and Royal Commission on Aboriginal Peoples, Bridging the Cultural Divide: A Report on Aboriginal People and Criminal Justice in Canada (Ottawa: Supply and Services Canada, 1996). [149] T. Quigley, "Some Issues in Sentencing of Aboriginal Offenders" in R. Gosse, J. Youngblood Henderson & R. Carter, compilers, Continuing Poundmaker and Riel's Quest: Presentations Made at a Conference on Aboriginal Peoples and Justice (Saskatoon: Purich Publishing, 1994) at 275-276. [150] M. Jackson, supra note 149 at 216. Winther notes that the phrase 'treaty Indian' refers to a "member of a band (Nation) of Indians which was a signatory to a Treaty with the Government of Canada." (N. Winther, "A Comprehensive Overview of Sports and Recreation Issues Relevant to Aboriginal Peoples in Canada (Manitoba, August 1994) at 9). Since many Indians in the prairie regions of Canada would fall within the phrase 'treaty Indian', this term is frequently used in place of the terms 'registered Indian' or 'status Indian'. (Ibid.) [151] M. Jackson, supra note 149 at 216. [152] Ibid. [153] Ibid. [154] A. Morris, Aboriginal Sport Circle Presentation, supra note 8 at 2. [155] Ibid. [156] Ibid. [157] Task Force Report, Alberta Indigenous Peoples Participation in Sport and Recreation Programs (Alberta: Task Force, January 1997) at 1. (Alberta Indigenous Peoples Participation in Sport and Recreation Programs Report) [158] S. Clatworthy and M. Mendelson, S. Clatworthy and M. Mendelson, A Statistical Profile of Aboriginal Youth in Canada, 1996. (Report prepared for the Aboriginal Relations Office of Human Resources Development Canada on behalf of the National Aboriginal Youth Strategy Working Group, September 26, 1999) at 94). According to these authors, in 1996, the average age of the Aboriginal population was 25.5 years, approximately 10 years younger than that of the non-Aboriginal population. (Ibid.) [159] A. Morris, Aboriginal Sport Circle Presentation, supra note 8. [160] Ibid. at 2. [161] Ibid. at 9. [162] For complete reference, please refer to supra note 15. [163] J. Leslie and R. Macguire, eds., The Historical Development of the Indian Act (2d ed.) Paper prepared for Treaties and Historical Research Centre, Research Branch, Corporate Policy, Department of Indian and Northern Affairs Canada, 1979 at 150. [164] Supra note 20. [165] R. v. Marshall [1999] 3 S.C.R. 456 at para. 45. (Marshall) [166] Ibid. at para. 47. [167] B. Slattery, "Making Sense of Aboriginal and Treaty Rights" (2000) 79 Can. Bar Rev. 196 at 204. [168] Ibid. [169] Canadian Charter of Rights and Freedoms, ss 35(2), Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. [170] Guerin v. R. [1984] 2 S.C.R. 335 and Sparrow, supra note 16. [171] Supra note 168 at 205. [172] Justice Binnie, writing for the majority in Marshall noted that "[t]he starting point for the analysis of the alleged treaty right must be an examination of the specific words used in any written memorandum of its terms." (Supra note 166 at para. 5) [173] Reference to Treaty No. 6, supra note 15. [174] (1935), 5 C.N.L.C. 92 (Can. Ex. Ct.) Available online at [previously unreported]. The Exchequer Court of Canada was the predecessor to the current Federal Court of Canada. [175] The date of the magistrate court's decision, citation information and/or name of the magistrate hearing the lower level decision in Johnston are not referred to in the appellate court decision. In view of the date on the information in that case (March 22nd, 1965) and the date of the appellate court decision (R. v. Johnston (1966), 56 D.L.R. (2d) 749 (Sask. C.A.), March 17th, 1966) (Johnson - Court of Appeal), the magistrate court decision must have issued between March 1965 and March 1966. [176] The date of the decision and citation information vis. a vis. the magistrate's court decision in Swimmer are not referred to in the appellate court decision. (R. v. Swimmer (1970), [1971] 1 W.W.R. 756 (Sask. C.A.)) (Swimmer - Court of Appeal) Culliton, C.J.S., writing for the appellate court in Swimmer identifies the Magistrate Court judge as Policha P.M. (Ibid. at 756). In view of the date the charges arose in that case (May 13th, 1968), and the date of the appellate court decision (December 4th, 1970), the magistrate court decision must have issued between May 1968 and December 1970. [177] Supra note 176. [178] Supra note 177. [179] Up until 1999, the only other decision that had considered the interpretation of the medicine chest clause was a 1969 decision of the Manitoba Court of Queen's Bench in Manitoba Hospital Commission v. Klein and Spence, (1969), 67 W.W.R. 440 (Man. Q.B.). (Manitoba Hospital) While acknowledging that it was unlikely that Treaty No. 6 had any application to the facts in that case, Justice Wilson indicated a willingness to follow the appellate court decision in Johnston: "I would, if I may, adopt the language of Culliton, C.J.S. in Reg. v. Johnston [citation omitted], where, having said that no significance was to be given to the 'medicine chest' agreement other than that conveyed by the words themselves in the context in which they are used[][.]"(at 446-447 citing Johnston - Court of Appeal, supra note 178 at 570) This obiter of Justice Wilson indicates that the obiter statement in Johnson was interpreted as 'the law' on the issue of how a treaty should be interpreted. [180] [1999] F.C.J. No. 82 (T.D.). [181] See, for example, Sparrow, supra note 16 and Marshall, supra note 166. [182] Supra note 175 at 95 and 115. [183] Ibid. at 115. It was unclear on the facts whether this amount amounted to the entire amount or a portion of such supplies provided to the Band by the Department of Indian Affairs or the purpose for which such amounts were charged. [184] Ibid. [185] Ibid. [186] Ibid. [187] Supra note 176. [188] R.S.S. 1953, c. 232. [189] O.C. 1400/62, 58 Sask. Gaz. at 861 noted in Johnson - Court of Appeal, supra note 176 at 750. [190] P.A. Barkwell, "The Medicine Chest Clause In Treaty No. 6" [1981] 4 C.N.L.R. 1 at 15. [191] Culliton, C.J.S. in Johnson - Court of Appeal, supra note 176 at 751 quoting Magistrate's court decision in Johnston, supra note 176. [192] Supra note 177. [193] Ibid. at 756. [194] Ibid. at 757-758. [195] R.S.C. 1952, c. 149. [196] Supra note 177 at 757-758 describing lower court decision. [197] Ibid. at 757 referring to lower court decision. [198] Supra note 177. [199] Supra note 178. [200] Supra note 176 at 754 (Johnston - Court of Appeal). [201] Ibid. at 752. [202] Ibid. at 753. [203] Ibid. [204] Ibid. [205] Ibid. at 752. [206] Ibid. at 754. [207] Supra note 175 at 116. [208] Ibid. at 90. [209] Ibid. at 117. [210] Ibid. at 117-118. [211] Ibid. at 116. [212] Supra note 176. [213] Supra note 177. [214] Ibid. [215] See, for example, Barkwell, supra note 191 at 19 and decision of Prothonotary Hargrave in Wuskwi Sipihk Cree Nation, supra note 181 at para. 12. Culliton, C.J.S. in Swimmer (Court of Appeal) wrote: "The interpretation and application to be given to the 'medicine chest' clause in Treaty No. 6 was considered by this Court in Regina v. Johnston (citations omitted). Speaking for the Court I said at p. 570: 'Again, on the plain reading of the 'medicine chest' clause, it means no more than the words clearly convey: An undertaking by the crown to keep at the house of the Indian agent a medicine chest for the use and benefit of the Indians at the direction of the agent. (Italics in original)' ... I have no reason to depart from this opinion. There was, in my view, nothing in the present case that justified the rejection of this view by the learned Judge of the Magistrate's Court (in Swimmer)." (Supra note 177 at 759, 760) In all due respect to Culliton, C.J.S., however, the Judge of the Magistrate's Court in Swimmer had every reason not to follow the appellate court decision in Johnson - the statement concerning "plain reading" of the medicine chest clause at Treaty No. 6 (Ibid. at 759) was, after all, obiter and, therefore, not binding on the Magistrate Court judge in Swimmer. [216] Manitoba Hospital decision, supra note 1806 at 446-447 citing Johnston - Court of Appeal, supra note 177 at 570. The Manitoba Court of Queen's Bench obiter statement, however, is itself significant since it indicated that a lower court outside of Saskatchewan was prepared to follow an obiter statement of the Saskatchewan Court of Appeal as the approach to follow in treaty interpretation. [217] Supra note 181. [218] Ibid. at para. 9. [219] Ibid. at para. 14. [220] [1983] 1 S.C.R. 29 at 36, cited in Wuskwi Sipihk Cree Nation, supra note 181 at para. 13. See also Simon v. The Queen, [1985] 2 S.C.R. 387 (Simon) and R. v. Badger, [1996] 1 S.C.R. 771 at para. 41. (Badger) [221] Supra note 16 at 1093 and 1099, cited in Wuskwi Sipihk Cree Nation, supra note 181 at paras. 12 and 13. [222] Badger, supra note 221 cited in Marshall, supra note 166 at para. 14. [223] Supra note 168 at 209 citing Simon, supra note 221 at 402-403, R. v. Sundown [1999] 1 S.C.R. 393 at para. 32 (Sundown) and Marshall, supra note 166 at para.53. Historic treaties are binding on, and enforceable against, the Crown in its courts. (Supra note 168 at 209 citing Simon, supra note 221 at 408-409; R. v. Sioui [1990] 1 S.C.R. 1025 at 1063 (Sioui) and Badger, supra note 221 at 793-794.) [224] Simon, supra note [224] at 404; Sioui, supra note [224] at 1039 and Marshall, supra note 166. [225] Badger, supra note 221 at para. 41. [226] Ibid. [227] Ibid. [228] Ibid. [229] See decision cited supra note 181. Even if I am wrong, however, the above analysis supports the finding that the appellate court decisions in Johnson (supra note 176) and Swimmer (supra note 177) are problematic and vulnerable to attack. Further, as Barkwell notes, Treaty No. 6 also extends into Alberta, however, writing in 1982, that "no case involving this clause has yet been litigated in that province." (Supra note 191 at 19) In addition, the Supreme Court of Canada has not yet addressed the interpretation of the medicine chest clause. (Ibid.) [230] See, for example, Van der Peet, supra note 16 cited in Nelson (Trial Division), supra note 139 at para. 43 [231] "The Belief in Interconnectedness" in online version of Royal Commission on Aboriginal Peoples, Bridging the Cultural Divide: A Report on Aboriginal People and Criminal Justice in Canada, supra note 33. [232] Ibid. [233] Ibid. [234] Ibid. [235] Ibid. [236] G. Eisen, "Games and Sporting Diversions of the North American Indians as Reflected in American Historical Writings of the Sixteenth and Seventeenth Centuries" (1978) IX(1) Canadian Journal of History of Sport and Physical Education 58 at 67. [237] Winther, supra note 151 at 5. [238] On the facts in Nelson (Trial Division), supra note 6, however, since the Hurons are not Algonquian people, and thus not related to the Ojibway, the judge stated that the material was not culturally relevant and thus of "no relevance in this case." (at p. 83 of hard copy decision) [239] J. Barnes, Sports and the Law in Canada (2d ed.) (Toronto: Butterworths, 1988) as cited by Winther, supra note 151 at 3 [240] I am mindful of Cardinal's caution to non-Aboriginal peoples vis. a vis. not misinterpreting Aboriginal stories. [241] Morris, "The Olympic Experience", supra note 6. [242] Supra note 8. [243] Ibid. at 2. [244] Simon, supra note 221. Mr. Simon was charged under a provincial statute with unlawfully carrying a rifle and shotgun shells. In his defence, he argued that he was immune from prosecution as a result of his treaty right to hunt and the application of s. 88 of the Indian Act. [245] Supra note 224. [246] [1996] 3 S.C.R. 139. [247] Supra note 21 at 51. [248] Simon, supra note 221 at 403. In Sundown, the SCC considered how the term "reasonably incidental" should be "defined and applied"[][.]" (Supra note 224 at 403) (S. Imai, supra note 21 at 59) [249] Sundown, supra note 224 at paras 28 and 29. [250] Ibid. at para 30. [251] Supra note 221, headnote.. [252] Ibid. [253] Supra note 21 at 59. [254] Ibid. [255] Supra note 247. [256] I have only been able to find one case that addresses the right to play traditional games. In Nelson (Trial Division) (supra note 6 ), Justice Giesbrecht's stated, in obiter, that the "[t]he sum of the evidence supports a claim of an aboriginal right to play and participate in traditional Ojibway games[]". (at para. 494) Lacrosse was one of the traditional Ojibway games that was considered by the judge. While the trial decision was upheld on appeal, this statement was neither approbated nor rejected by the appellate court. Appellate Justice Huband, writing for the court, noted that while he was "in entire agreement with what I regard as the key conclusion; that the actions of the accused are not the manifestation of a distinctive Aboriginal culture[,]" he neither approbate[d] nor reject[ed] the learned trial judge's conclusions." (R. v. Nelson (1999), [2000] 2 C.N.L.R. 222 (C.A.) (Nelson - Court of Appeal) [257] Simon, supra note 221 at paras 28 and 29. [258] Ibid. at 402. [259] Morris, Aboriginal Sport Circle Presentation, supra note 8.