T-2172-99 2013 FC 6 Harry Daniels, Gabriel Daniels, Leah Gardner, Terry Joudrey and the Congress of Aboriginal Peoples ( Plaintiffs ) v. Her Majesty the Queen, as represented by the Minister of Indian Affairs and Northern Development and the Attorney General of Canada ( Defendants ) Indexed as: Daniels v. Canada (Indian Affairs and Northern Development) Federal Court, Phelan, J.—Ottawa, May 2, 3, 4, 5, 6, 9, 10, 11, 12, 16, 17, 18, 19, 20, 24, 25, 26, 27, 30, 31, June 1, 2, 6, 7, 8, 9, 10, 27, 28, 29 and 30, 2011; January 8, 2013.

Aboriginal Peoples — Métis and Non-Status Indians — A ction seeking declarations that Métis, Non-Status Indians “Indians” within meaning of Constitution Act, 1867, s. 91(24) ; owed fiduciary duty as Aboriginal people; have right to be consulted, negotiated with by federal government — P rincipal issue whether federal government having jurisdiction to make laws in respect of Métis, Non-Status Indians under s. 91(24) — Métis, Non-Status Indians “Indians” within meaning of s. 91(24) — Evidence, key events, circumstances dating from pre-Confederation indicating federal policy of accepting Métis as “Indians” — Administrative line between Indians, Métis unclear or indistinct — “Indianness” distinguishing feature of Métis, Non-Status Indians — Actions of federal government vis-à-vis “Indians” indicative of intent, scope of s. 91(24) — Purposes of s. 91(24) power broader than protection of Indians, lands — T erm “Indian” in s. 91(24) broader than in Indian Act — Supreme Court of Canada aware in Reference whether “Indians” includes “Eskimo”of intent to include broad range of people of aboriginal heritage in s. 91(24) — P urpose of Indian power including intent to control all people of aboriginal heritage — Recognition of Métis, Non-Status Indians as Indians under s. 91(24) removing constitutional uncertainty — Declaration as to fiduciary duty dismissed — While fiduciary relationship existing as a matter of law flowing from declaration Métis, Non-Status Indians “Indians” pursuant to s. 91(24), declaration sought made without specific facts about which duty breached — As for duty to consult, negotiate, absent better particulars, not possible for Court to offer any guidance — Action allowed in part.

Constitutional Law — Distribution of Powers — Métis, Non-Status Indians “Indians” within meaning of Constitution Act, 1867, s. 91(24) ; — “Indianness” distinguishing feature of Métis, Non-Status Indians — Evidence, key events, circumstances dating from pre- Confederation indicating federal policy of accepting Métis as “Indians” — Actions of federal government vis-à-vis “Indians” indicative of intent, scope of s. 91(24) — P urpose of Indian power including intent to control all people of aboriginal heritage.

Constitutional Law — Aboriginal and Treaty Rights — Whether Métis, Non-Status Indians “Indians” within meaning of Constitution Act, 1867, s. 91(24) — Constitution Act, 1982 , s. 35 of little assistance to

interpretation of s. 91(24) — A ssertion of identity with one

section 35 Aboriginal group not precluding inclusion in subsection 91(24) — M axim expressio unius est exclusio alterius not totally applicable to s. 91(24) . Crown — Prerogatives — Whether Métis, Non-Status Indians “Indians” within meaning of Constitution Act, 1867, s. 91(24) — Misplaced to contend that Aboriginal treaties not relating to Constitution Act, 1867, s. 91(24) — S. 91(24) giving authority to federal Crown to exercise treaty power — P rerogative power in respect of treaties subsumed in s. 91(24) .

Construction of Statutes — Whether Métis, Non-Status Indians “Indians” within meaning Constitution Act, 1867, s. 91(24) — Purposive approach applied herein — I n case of constitutional power having racial tones, history not determining purpose for all time — Racial stereotyping not proper basis for constitutional

interpretation — Judicial caveat in Reference re Employment Insurance Act (Can.), ss. 22 and 23 speaking to reliability of debates, correspondence as basis for concluding on breadth of head of power — Greater reliance placed herein on a ctions of federal government vis-à-vis “Indians” as indicative of intent, scope of s. 91(24) — Purposes of s. 91(24) power broader than protection of Indians, lands — T erm “Indian” in s. 91(24) broader than in Indian Act — Constitution Act, 1982 , s. 35 of little assistance to

interpretation of Constitution Act, 1867, s. 91(24) — A ssertion of identity with one

section 35 Aboriginal group not precluding inclusion in subsection 91(24) — M axim expressio unius est exclusio alterius not totally applicable to s. 91(24) . This was an action seeking declarations that Métis and Non-Status Indians are “Indians” within the meaning of the expression “Indians, and Lands reserved for the Indians” in the head of power under subsection 91(24) of the Constitution Act, 1867 ; are owed a fiduciary duty as Aboriginal people by the Queen in right of Canada; and have the right to be consulted and negotiated with by the federal government. The plaintiffs grounded their claims on the basis that: (

a) the Métis people in Rupert’s Land and the Northwest Territories were part of the peoples called “aborigines” and that after jurisdiction over them was transferred to the federal government, they were considered “Indians” and treated as such in legislation and practice; (

b) that Non-Status Indians are Indians to whom, from time to time, the Indian Act did not apply but had either maternal or paternal ancestors who were Indians, or any person who self-identifies as an Indian and is mutually accepted by an Indian community, or branch or council of an Indian association or organization; and (

c) that the Métis and Non-Status Indians suffered deprivations and discrimination because of the federal government’s refusal to recognize them as Indians pursuant to subsection 91(24) . The central theme of the plaintiffs’ case was that the historical evidence established that it was the purpose and intent of subsection 91(24) to include Métis and Non-Status Indians as “Indians” and that, following Confederation until at least the 1930s, the federal government often treated Métis groups as if they were “Indians” subject to federal jurisdiction in its legislation, regulations, practices and policies.

The defendants resisted the plaintiffs’ claims on the grounds that there are insufficient facts for the relief sought by the plaintiffs; that Métis were never considered “Indians” either in fact, law or practice; and that there is no group legally known as “Non-Status Indians”. The defendants also denied the allegations of deprivation and discrimination, and held that the rights to consultation and negotiation are either not available to Métis and Non-Status Indians, or have been met. It was the defendants’ position that historical evidence and cases

from the Supreme Court of Canada establish that the word “Indian” in subsection 91(24) was not meant to include the distinct peoples and communities known as the Métis and that, with respect to Non-Status Indians, legislation enacted under subsection 91(24) must draw a line between those who are considered Indians and those who are not. The principal issue was whether the federal government has jurisdiction to make laws in respect of Métis and Non-Status Indians under subsection 91(24) of the Constitution Act, 1867 because they are “Indians”. Held , the action should be allowed in part.

The plaintiffs’ request for a declaration that Métis and Non-Status Indians are “Indians” within the meaning of the Constitution Act, 1867 , subsection 91(24) was granted. The decision focused on key events and circumstances relevant to the issue of whether Métis and Non-Status Indians are Indians under subsection 91(24) . The pre-Confederation evidence was directed at what the term “Indian” meant at the time when it was inserted into the

section 91 powers. Canada’s treaty experience with Natives during that period suggests that there was a need to, inter alia , establish and maintain peaceful relations with all Natives, pay one-time cash amounts for the surrender of Native interests in land, and recognize, pacify, control and deal with interest in the land of Métis who were seen as distinct in some respects from “Indians”. The subsection 91(24) power thus needed to be sufficiently broad for the federal government to be able to address a wide range of situations, in a wide range of ways covering a diverse composition of Native people.

The early post-Confederation statutes also give some indication of the intent of the subsection 91(24) power and its scope. The early post-1867 evidence shows that the Métis were considered as a subset of a wider group of Aboriginal-based people called “Indians”, and that Canada was prepared to exercise jurisdiction over them, to use Indian power-like methods and to justify the exercise of subsection 91(24) . Examples of the federal government’s exercise of jurisdiction over Métis include the Treaty No. 3

(1873) Adhesion, which gave Métis a reserve as part of their surrender of the claim to Indian title, and the federal government’s liquor policy. Numerous other cases occurred where Métis were treated as Indians or dealt with under the Indian power. The compounding of these cases leads to the conclusion that these were not anomalies but a reflection of the main line of thought and general view. There was, for administrative purposes, a very unclear or indistinct line between Indians and Métis. Métis were both included and excluded from recognized Indian status in accordance with changing government policies.

The federal government adopted these flexible policies because it could and it was assumed, implied and accepted that the federal government could do so because Métis were “Indians” under subsection 91(24) . On the evidence herein, both Métis and Non-Status Indians are connected to the racial classification “Indian” by way of marriage, filiation and intermarriage. The single most distinguishing feature of either Métis or Non-Status Indians is that of “Indianness”, not language, religion or connection to European heritage. The purposive approach, or “living tree” doctrine, was the applicable constitutional

interpretation principle. History helps to understand perspectives on the purpose but does not necessarily determine the purpose for all time, particularly in the case of a constitutional power that has racial tones and involved people who were seen in a light that would be offensive today. Racial stereotyping is not a proper basis for constitutional

interpretation. In Reference re Employment Insurance Act (Can.), ss. 22 and 23 , the Supreme Court of Canada cautioned against undue reliance on debates and correspondence in reaching conclusions on the precise scope of legislative competence. This judicial caveat is more applicable to analysing the constitutional competence of specific legislation than in interpreting the scope of a head of power, but it does speak to the reliability of this type of evidence as a basis for concluding on the breadth of the power.

Greater reliance was placed herein on what was done by the federal government vis-à-vis “Indians” in the early years of Confederation as indicative of intent and scope of subsection 91(24) than on statements made in the political milieu.

The argument that the purpose of subsection 91(24) was to allow the federal government the power to protect Indians and their lands because Indians were viewed as childlike uncivilized people ignores the far broader and more acceptable purposes for the subsection 91(24) power, including the acceptance of the Crown’s responsibilities to Natives, obligations under The Royal Proclamation, 1763 , the need for a coordinated approach to Natives rather than the balkanized colonial regimes and the need to deal with the rapid and forcible expansion into the West.

The Supreme Court of Canada’s Reference whether “Indians” includes “Eskimos” established that the term “Indian” in subsection 91(24) is much broader than the term in the Indian Act , and concluded that the term “Indian” included all the Aboriginal people of British North America. While the Supreme Court of Canada may not have applied the modern purposive approach to constitutional

interpretation, it was aware of the significance of the Indian power and the intent to include a broad range of people of aboriginal heritage within that power. Applying the purposive approach in light of the finding in Reference whether “Indians” includes “Eskimos” , it was determined that the purpose of the Indian power included the intent to control all people of aboriginal heritage in the new territories of Canada. The recognition of Métis and Non-Status Indians as Indians under subsection 91(24) should accord a further level of respect and reconciliation by removing the constitutional uncertainty surrounding these groups.

Section 35 of the Constitution Act, 1982 is of little assistance to the

interpretation of subsection 91(24), each serving different purposes and reflecting different times. The consistency of having all Aboriginals covered in both provisions is neither a goal to strive for nor a result to resist. The decision in Keewatin v. Minister of Natural Resources does not support the plaintiffs’ argument that the principles of “identity of jurisdiction and interjurisdictional immunity” support the need to assign jurisdiction over Métis and Non-Status Indians to the federal government to protect Aboriginal and treaty rights protected under

section 35 , whereas the defendants’ contention that treaties are entered into pursuant to royal prerogative and therefore do not relate to subsection 91(24) is misplaced. Constitutionally, there is a royal prerogative applicable to the Crown in right of Canada and to the Crown in right of a province. It is subsection 91(24) which gives authority to the federal Crown rather than the provincial Crown to exercise that treaty power. Any prerogative power in respect of treaties is subsumed in subsection 91(24) . While

section 35 requires that the identification with one of the three Aboriginal groups leads to the exclusion from the other two with respect to identity, culture and self-governance, assertion of identity with one

section 35 group does not preclude inclusion in subsection 91(24) . With regard to subsection 91(24) , unlike

section 35, the latin legal maxim expressio unius est exclusio alterius is not totally applicable. Finally, the requests to declare that the federal Crown owes a fiduciary duty to Métis and Non-Status Indians, and must consult and negotiate with them were dismissed. In view of the Supreme Court of Canada’s decision in Wewaykum Indian Band v. Canada , a fiduciary relationship exists as a matter of law flowing from the declaration that Métis and Non-Status Indians are Indians pursuant to subsection 91(24) .

However, the declaration that the plaintiffs sought was made without specific facts about which duty had been breached. As for the duty to consult and negotiate, absent better particulars of what is at issue to consult on or negotiate, no guidance

could be offered by the Court. STATUTES AND REGULATIONS CITED Act of Indians , R.S.N.S. 1859, c. 58.

An Act for the better protection of the Lands and Property of the Indians in Lower Canada , Prov. C.S. 1850 (13 & 14 Vict.), c. 42, s. V.

An Act for the gradual enfranchisement of Indians, the better management of Indian affairs, and to extend the provisions of the Act 31st Victoria,

Chapter 42 , S.C. 1869, c. 6.

An Act for the protection of the Indians in Upper Canada from imposition, and the property occupied or enjoyed by them from trespass and injury , S. Prov. C. 1850, c. 74.

An Act for the temporary Government of Rupert’s Land and the North-Western Territory when united with Canada , S.C. 1869, c. 3 (R.S.C., 1985, Appendix II, No. 7).

An Act further to amend “The Indian Act ” , S.C. 1894, c. 32, s. 2.

An Act providing for the organisation of the Department of the Secretary of State of Canada, and for the management of Indian and Ordnance Lands , S.C. 1868, c. 42.

An Act respecting Civilization and Enfranchisement of certain Indians , C.S.C. 1859 (22 Vict.), c. 9.

An Act respecting Indians and Indian Lands , C.S.L.C. 1860, c. 14, ss. 10, 11.

An Act to amend and consolidate the several Acts respecting the Public Lands of the Dominion , S.C. 1879, c. 31.

An Act to amend and continue the Act 32 and 33 Victoria,

chapter 3; and to establish and provide for the Government of the Province of Manitoba , S.C. 1870, c. 3, s. 31.

An Act to amend the Indian Act , S.C. 1985, c. 27.

An Act to amend “The Indian Act , 1876” , S.C. 1879, c. 34.

An Act to encourage the gradual Civilization of Indian Tribes in this Province, and to amend the Laws respecting Indians , S. Prov. C. 1857 (20 Vict.), c. 26,

preamble.

An Act to repeal in part and to amend

an Act, intituled,

An Act for the better protection of the Lands and property of the Indians in Lower Canada , S. Prov. C. 1851 (14 & 15 Vict.), c. 59, s. II. Alberta Natural Resources Act (The) , S.C. 1930, c. 3. British Columbia Act, 1866 (The) (U.K.), 29 & 30 Vict., c. 67. British Columbia Terms of Union , R.S.C., 1985, Appendix II, No. 10, s. 11. British North America Act, 1867 (The) , 30 & 31 Vict., c. 3 (U.K.) [R.S.C. 1970, Appendix II, No. 5], ss. 145, 146, 147. Canadian Bill of Rights , R.S.C. 1970, Appendix III. Canadian Charter of Rights and Freedoms , being

Part I of the Constitution Act, 1982 ,

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

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

Schedule B, Canada Act 1982 , 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 35 (as am. by Constitution Amendment Proclamation, 1983 , SI/84-102, Schedule, s. 2), 35.1 (as enacted idem , s. 3), 37, 37.1 (as enacted idem , s. 4). Constitutional Act, 1791 (The) , 30 Geo. III, c. 31 (U.K.) [R.S.C., 1985, Appendix II, No. 3]. Indian Act , R.S.C. 1927, c. 98 , s. 126. Indian Act , R.S.C., 1985, c. I-5, s. 6(1), (2) . Indian Act , S.C. 1951, c. 29. Indian Act, 1876 (The) , S.C. 1876, c. 18, s. 1. Manitoba Act, 1870 , 33 Vict., c. 3 (U.K.) (as am. by Canada Act 1982 , 1982, c. 11 (U.K.),

Schedule to the Constitution Act, 1982 , Item 2) [R.S.C., 1985, Appendix II, No. 8], ss. 31, 32. Manitoba Natural Resources Act (The) , S.C. 1930, c. 29. Metis Settlements Act , R.S.A. 2000, c. M-14.

Natural Resources Transfer Agreement (Manitoba) (confirmed by the Constitution Act, 1930, 20 & 21 Geo. V, c. 26 (U.K.) (as am. byCanada Act 1982, 1982, c. 11 (U.K.),

Schedule to the Constitution Act, 1982, Item 16) [R.S.C., 1985, Appendix II, No. 26], Sch. (1.)),para. 13. Order of Her Majesty in Council admitting Rupert’s Land and the North-Western Territory into the Union, dated June 23, 1870, online:<http://www.justice.gc.ca/eng/rp-pr/csj-sjc/constitution/lawreg-loireg/p1t31.html>. Quebec Act, 1774 (The), 14 Geo. III, c. 83 (U.K.) [R.S.C., 1985, Appendix II, No. 2]. Prince Edward Island Terms of Union, R.S.C., 1985, Appendix II, No. 12. Royal Proclamation, 1763 (The), R.S.C., 1985, Appendix II, No. 1. Saskatchewan Natural Resources Act (The), S.C. 1930, c. 41.

Union Act, 1840 (The), 3 & 4 Vict., c. 35 (U.K.) [R.S.C., 1985, Appendix II, No. 4]. TREATIES AND OTHER INSTRUMENTS CITED Manitoulin Island Treaty, 1862. Robinson-Huron Treaty (1850). Robinson-Superior Treaty (1850). Treaty No. 1 (1871). Treaty No. 2 (1871). Treaty No. 3 (1873). Treaty No. 4 (1874). Treaty No. 5 (1875). Treaty No. 6 (1876). Treaty No. 7 (1877). Treaty No. 8 (1899). Treaty No. 9 (1905–1906). Treaty No. 10 (1906). Treaty No. 11 (1921). CASES CITED applied: Reference whether “Indians” includes “Eskimo”, (SCC), [1939] S.C.R. 104, [1939] 2 D.L.R. 417; R. v.

Powley, 2003SCC 43, [2003] 2 S.C.R. 207, 68 O.R. (3d) 255, 230 D.L.R. (4th) 1; Lovelace v. Ontario, 2000 SCC 37, [2000] 1 S.C.R. 950, 188 D.L.R.(4th) 193, [2000] 4 C.N.L.R. 145; Alberta (Aboriginal Affairs and Northern Development) v. Cunningham, 2011 SCC 37, [2011] 2S.C.R. 670, 334 D.L.R. (4th) 577, [2011] 12 W.W.R. 417; Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44, 315D.L.R. (4th) 1, 251 C.C.C. (3d) 435; Reference re Same-Sex Marriage, 2004 SCC 79, [2004] 3 S.C.R. 698, 246 D.L.R. (4th) 193, 125C.R.R. (2d) 122; Wewaykum Indian Band v.

Canada, 2002 SCC 79, [2002] 4 S.C.R. 245, 220 D.L.R. (4th) 1, [2003] 1 C.N.L.R. 341. distinguished: R. v. Blais, 2003 SCC 44, [2003] 2 S.C.R. 236, 230 D.L.R. (4th) 22, [2004] 11 W.W.R. 199; Keewatin v. Minister of Natural Resources,2011 ONSC 4801 , [2012] 1 C.N.L.R. 13. considered: Daniels v. Canada (Minister of Indian Affairs and Northern Development), 2008 FC 823; Solosky v. The Queen, (SCC),[1980] 1 S.C.R. 821, (1979), 105 D.L.R. (3d) 745, 50 C.C.C. (2d) 495; Manitoba Metis Federation Inc. v. Canada (Attorney General),2007 MBQB 293 , [2008] 4 W.W.R. 402, 223 Man.

R. (2d) 42, [2008] 2 C.N.L.R. 52, affd 2010 MBCA 71 , [2010] 12W.W.R. 599, 255 Man. R. (2d) 167, [2010] C.N.L.R. 233, affd in part, 2013 SCC 14; Attorney General of Canada et al. v. Canard, (SCC), [1976] 1 S.C.R. 170, (1975), 52 D.L.R. (3d) 548, 4 N.R. 91; Labrador Metis Nation v. Newfoundland and Labrador(Minister of Transportation and Works), 2006 NLTD 119 , 258 Nfld. & P.E.I.R. 257, [2006] 4 C.N.L.R. 94; Black v.

LawSociety of Alberta, (SCC), [1989] 1 S.C.R. 591, (1989), 96 A.R. 352, 58 D.L.R. (4th) 317, [1989] 4 W.W.R. 1;Reference re Employment Insurance Act (Can.), ss. 22 and 23, 2005 SCC 56, [2005] 2 S.C.R. 669, 258 D.L.R. (4th) 243, 45 C.C.E.L.(3d) 159; Confédération des syndicats nationaux v. Canada (Attorney General), 2008 SCC 68, [2008] 3 S.C.R. 511, 300 D.L.R. (4th)193, 81 Admin. L.R. (4th) 1.

referred to: Kitkatla Band v. British Columbia (Minister of Small Business, Tourism and Culture), 2002 SCC 31, [2002] 2 S.C.R. 146, 210 D.L.R.(4th) 577, [2002] 6 W.W.R. 1; R. v. Edwards Books and Art Ltd., (SCC), [1986] 2 S.C.R. 713, (1986), 35 D.L.R. (4th) 1,30 C.C.C. (3d) 385; Reference re Canada Assistance Plan (B.C.), (SCC), [1991] 2 S.C.R. 525, (1991), 83 D.L.R. (4th)297, [1991] 6 W.W.R. 1; Daniels v. Canada (Indian Affairs and Northern Development), 2011 FC 230, 387 F.T.R. 102; Reference reSecurities Act, 2011 SCC 66, [2011] 3 S.C.R. 837, 519 A.R. 63, 339 D.L.R. (4th) 577; Montana Band v.

Canada, 2006 FC 261, [2006] 3C.N.L.R. 70, 287 F.T.R. 159; Attorney General of Canada v. Lavell, (SCC), [1974] S.C.R. 1349, (1973), 38 D.L.R.(3d) 481, 7 C.N.L.C. 236; Hunter et al. v. Southam Inc., (SCC), [1984] 2 S.C.R. 145, (1984), 55 A.R. 291, 11 D.L.R.(4th) 641, [1984] 6 W.W.R. 577; Canadian Pioneer Management Ltd. et al. v. Labour Relations Board of Saskatchewan et al., (SCC), [1980] 1 S.C.R. 433, (1980), 107 D.L.R. (3d) 1, [1980] 3 W.W.R. 214; R. v. Sparrow, (SCC),[1990] 1 S.C.R. 1075, (1990), 70 D.L.R. (4th) 385, [1990] 4 W.W.R. 410; Haida Nation v.

British Columbia (Minister of Forests), 2004SCC 73, [2004] 3 S.C.R. 511, 245 D.L.R. (4th) 33, [2005] 3 W.W.R. 419. AUTHORS CITED Commission to Inquire into the Matters of Membership in the Indian Bands in Lesser Slave Lake Agency, August 7, 1944, online:<http://epe.lac-bac.gc.ca/100/200/301/pco-bcp/commissions-ef/macdonald1947-eng/macdonald1947-eng.pdf>. Department of Regional Economic Expansion. Special ARDA in Relation to the Future Direction of Native Socioeconomic Development.Ottawa: Department of Regional Economic Expansion, 1977.

Debates of the House of Commons of the Dominion of Canada, 5th Parl., 3rd Sess., 48-49 Vict. (July 6, 1885), p. 3113. Flanagan, Thomas. “The Case Against Métis Aboriginal Rights” (1983), 9 Can. Pub. Pol’y 314. Hogg, Peter. Constitutional Law of Canada. 5th ed. Toronto: Thomson/Carswell, 2007. Lambton, John George, Earl of Durham et al. Report on The Affairs of British North America. Toronto: Robert Stanton, 1839. Morris, Alexander. The Treaties of Canada with the Indians of Manitoba and the North-West Territories Including the Negotiations onWhich They Were Based, and Other Information Relating Thereto.

Toronto: Belfords, Clarke & Co., Publishers, 1880. ACTION seeking a declaration that Métis and Non-Status Indians are “Indians” within the meaning of subsection 91(24) of theConstitution Act, 1867, that they are owed a fiduciary duty by Canada and that they have the right to be consulted and negotiated with bythe federal government. Action allowed in part. APPEARANCES Andrew K. Lokan, Joseph E. Magnet and Lindsay Scott for plaintiffs. Brian McLaughlin, Donna Tomljanovic, Kim McCarthy, Amy Martin-Leblanc and E. James Kindrake for defendants.

SOLICITORS OF RECORD Paliare Roland Rosenberg Rothstein LLP, Toronto and Joseph E. Magnet, Ottawa, for plaintiffs. Deputy Attorney General of Canada for defendants. Table of Contents Paragraph I. Introduction ...................................................................................................................1 II. Court

summary.............................................................................................................19 III. Parties...........................................................................................................................29 A. Gabriel Daniels ...................................................................................................... 30 B. Leah Gardner ......................................................................................................... 34 C.

Terry Joudrey .......................................................................................................... 37 D. The Minister of Indian Affairs and Northern Development ............................ 38 E. The Attorney General of Canada ........................................................................ 39 F. Congress of Aboriginal Peoples ......................................................................... 40 IV. Discretion to decide ...................................................................................................48 V.

Nature of the problem ................................................................................................ 84 VI. Problem of definition .................................................................................................111 A. Non-Status Indians ............................................................................................... 116 B. Métis ......................................................................................................................... 124 VII.

Witnesses ..................................................................................................................131 A. Ian Cowie (plaintiffs’ witness) ............................................................................. 132 B. John Leslie (plaintiffs’ witness) ........................................................................... 137

VIII. Historical expert witnesses..................................................................................... 147 A. William Wicken (plaintiffs’ witness) .................................................................... 147 B. Stephen Patterson (defendants’ witness) ......................................................... 152 C. Gwynneth Jones (plaintiffs’ witness) ................................................................. 161 D. Sébastien Grammond (plaintiffs’ witness) ........................................................ 170 E.

Alexander von Gernet (defendants’ witness) ................................................... 175 IX. Historical evidence..................................................................................................... 183 A. Pre-Confederation era........................................................................................... 183

(1) Atlantic Canada ................................................................................................ 184 (

a) Nova Scotia .................................................................................................. 211 (

b) New Brunswick ............................................................................................ 225 (

c) Prince Edward Island .................................................................................. 227 (

d) Newfoundland and Labrador .................................................................... 229

(2) Quebec/Ontario (Upper/Lower Canada) ...................................................... 233 (

a) Kahnawake .................................................................................................. 256 (

b) Six Nations of the Grand River ................................................................. 259 (

c) Impact of these issues ................................................................................ 261

(3) Pre-Confederation statutes ............................................................................ 268

(4) Pre-Confederation reports re “Indians” ....................................................... 288

(5) Pre-Confederation treaties ............................................................................. 302

(6) Synopsis: Indian power pre-Confederation ................................................ 319 B. Confederation ........................................................................................................ 324

(1) Genesis .............................................................................................................. 324

(2) Objects and purposes of Confederation ...................................................... 339 C. Post-Confederation ............................................................................................... 355

(1) Rupert’s Land ................................................................................................... 355

(2) Post-Confederation statutes—1867–1870................................................... 360

(3) Aboriginal population of the Northwest ....................................................... 369

(4) The Manitoba Act, 1870 /The scrip system ................................................... 385 D. Other examples—Half-breeds and subsection 91(24) .................................... 423

(1) Adhesion to Treaty No. 3 ................................................................................ 424

(2) The reserve and industrial school at St.-Paul-des-Métis .......................... 437

(3) Liquor policy ...................................................................................................... 445 (4) “Half-breeds” whose ancestors took scrip .................................................... 453

(5) Other examples of jurisdiction over Non-Status Indians ........................... 459 E. Modern era .............................................................................................................. 469

(1) Pre-patriation .................................................................................................... 469

(2) Post-patriation ................................................................................................... 485 F. Treaties and half-brreds ........................................................................................ 513 X. Legal analysis and conclusions .............................................................................. 523 A. Subsection 91(24)—Métis and Non-Status Indians ........................................ 523

(1) Introduction ....................................................................................................... 523

(2) Interpretation principles .................................................................................. 534

(3) Judicial guidance ............................................................................................. 545 B. Fiduciary duty ......................................................................................................... 602 C. Duty to negociate ................................................................................................... 610 XI. Costs ............................................................................................................................ 618 XII.

Conclusion ................................................................................................................ 619 The following are the reasons for judgment and judgment rendered in English by Phelan J.: I. INTRODUCTION [ 1 ] The critical question posed in this litigation is straightforward—Are Non-Status Indians and Métis (MNSI), identified as “Indians” under subsection 91(24) of the Constitution Act, 1867 , 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982 , 1982, c. 11 (U.K.),

Schedule to the Constitution Act, 1982 , Item 1) [R.S.C., 1985, Appendix II, No. 5] (the Constitution [or BNA Act])? Subsection 91(24) reads:

Legislative Authority of Parliament of Canada 91.

It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next here-in-after enumerated; that is to say, … 24.

Indians, and Lands reserved for the Indians. [ 2 ] The canvas over which the parties have painted the answer encompasses Canadian history virtually from the time of Champlain in Passamaquoddy Bay in 1603 to the present day. The reach of time and space makes this case a difficult one, not amenable to the same organization and analysis as has been the case with specific disputes over specific agreements or treaties affecting Natives. However, for ease of organization, these reasons generally follow a chronological framework. [ 3 ] The plaintiffs ask this Court to issue the following declarations: (

a) that Métis and Non-Status Indians are “Indians” within the meaning of the expression “Indians, and Lands reserved for the Indians” in subsection 91(24) of the Constitution Act, 1867 ; (

b) that the Queen (in right of Canada) owes a fiduciary duty to Métis and Non-Status Indians as Aboriginal people; (

c) that the Métis and Non-Status Indian peoples of Canada have the right to be consulted and negotiated with, in good faith, by the federal government on a collective basis through representatives of their choice, respecting all their rights, interests and needs as Aboriginal peoples. [ 4 ] In brief and non-exhaustive

summary, the plaintiffs ground their claim on the following basis: (

a) the Métis people in Rupert’s Land and Northwest Territories were part of the peoples called “aborigines” and jurisdiction over them was transferred to the federal government. Thereafter, Métis were generally considered part of, although often distinct from, “Indians” and were treated as Indians in legislation and practice. (

b) Non-Status Indians are Indians to whom, from time to time, the Indian Act , R.S.C., 1985, c. I-5 did not apply but had either maternal or paternal ancestors who were Indians, or any person who self-identifies as an Indian and is mutually accepted by an Indian community, or branch or council of an Indian association or organization. (

c) that because of the federal government’s refusal to recognize Métis and Non-Status Indians as Indians pursuant to subsection 91(24) , they have suffered deprivations and discrimination in the nature of: lack of access to health care, education and other benefits available to Status Indians; lack of access to material and cultural benefits; being subjected to criminal prosecutions for exercising Aboriginal rights to hunt, trap, fish and gather on public lands; and being deprived of federal government negotiations on matters of Aboriginal rights and agreements. [ 5 ] The defendants resist the plaintiffs’ claims on several grounds.

The principal grounds are that no declaration can or should issue because there are insufficient facts and grounds for such relief; that Métis are not and were not, either in fact or law or practice, considered “Indians”; that there is no such group legally known as “Non-Status Indians”; that the allegations of deprivation and discrimination are denied and that the forms of relief required of rights to consultation and negotiations are either not available to Métis and Non-Status Indians or in any event, all legal obligations have been met. [ 6 ] This matter came before this Court by way of an action for a declaration by the three individuals (Harry Daniels having died before the case was heard) and the organization named as plaintiffs.

The manner of bringing this case has been an issue between the parties even though the litigation was financed by the very government that opposes even the manner of proceeding. [ 7 ] It is a definitional minefield to use terms such as “Indian” or “Aboriginal” when the purpose of the litigation is to provide some definition of those words which appear in different places and different contexts in the Constitution. The term “Native” or “Native people” is an effort to find a more neutral term for those First Nations peoples and their descendants.

In a somewhat similar fashion the Court has used the term “Euro-Canadian” to identify the non-Native group of predominantly Caucasian persons, fully recognizing that even this effort to avoid the colloquial term “White” is not entirely accurate. [ 8 ] The parties have outlined a somewhat consistent history of early relations between firstly the French government and the Native people and then between the British government and the Native people particularly in Eastern Canada. The parties’ respective perspectives start to drift apart with the lead up to Confederation and thereafter.

While most of the actual events are not in dispute, their meaning and significance to the key issue in this case is strongly debated. [ 9 ] The plaintiffs’ case commenced with a review of the pre- and post-repatriation of the Constitution as it related to the Native people.

The evidence seemed designed to show the nature of the problem of this unresolved issue, its impact on the people most directly affected, the MNSI, and to some extent the alleged duplicitous dealings by Canada because of the recognition within government that Canada did indeed have jurisdiction over MNSI. [ 10 ] The plaintiffs’ case was made more difficult by the defendants’ refusal to admit numerous documents which came from its own archives and departments, introduced to show the manner in which these two groups were viewed by government and how these two groups were treated. [ 11 ] It was a central theme of the plaintiffs’ case that the historical evidence established that it was the purpose and intent of

subsection 91(24) that Non-Status Indians (being by description Indians) and Métis were “Indians” and that following Confederationuntil at least the 1930s the federal government often treated many Métis groups as if they were “Indians” subject to federal jurisdiction.This, the plaintiffs contend, was done in legislation, regulation and in the practices and policies of the federal government. [12] The defendants adopted a more traditional approach to the organization of the case in a chronological format. It was theirposition that: (

a) historical evidence and cases from the Supreme Court of Canada establish that the word “Indian” in subsection 91(24) was not meantto include the distinct peoples and communities known as the Métis; (

b) with respect to the question of Non-Status Indians, the defendants say that legislation enacted under subsection 91(24) must draw aline between those who are considered Indians and those who are not. The plaintiffs claim that trying to determine the natural limits ofParliament’s jurisdiction (absent actual or proposed legislation) is an impossible task. [13] In these reasons, the Court has dealt with the defendants’ position that this is too difficult a case to decide, that the definitionaldifficulties of definition of who falls within the term “Indian” in subsection 91(24) should preclude a remedy.

It is the Court’s view thatthere is a live, justiciable issue for which the difficulties, real or otherwise, cannot be a reason to deny people a remedy whereappropriate. In general terms persons have a right to know who has jurisdiction over them and the adage “where there is a right, there is aremedy” is applicable. [14] It is a central theme of the defendants’ argument that this Court ought not to decide this matter because, in

summary, it is atheoretical matter which will resolve nothing. The defendants also urge the Court not to exercise its discretion to grant one or more of thedeclarations requested. [15] The defendants’ position is that none of the declarations will do anything but lead to further litigation. It is their thesis that whatis at issue between the parties is alleged discrimination as between the treatment of MNSI and Status Indians, a matter which should beresolved by Charter [Canadian Charter of Rights and Freedoms, being

Part I of the Constitution Act, 1982,

Schedule B, Canada Act1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] or human rights proceedings. [16] A more complete review of the preliminary issues is canvassed in paragraphs 48–83 [of these reasons]. [17] The plaintiffs put great reliance on the “living tree” doctrine for a purposive approach to be progressively applied to theinterpretation of subsection 91(24).

They reject the historical approach said to be prevalent in such cases as in Reference whether“Indians” includes “Eskimo”, (SCC), [1939] S.C.R. 104 (In Re Eskimo Reference). [18] The interpretative principles which the Court must apply to these historical facts is made more nuanced than the plaintiffsconcede by the Supreme Court of Canada’s comments in R. v.

Blais, 2003 SCC 44, [2003] 2 S.C.R. 236 (Blais), at paragraph 40, whichsuggests a limit on the “living tree”, a need to stay anchored in historical context and to avoid “after-the-fact largesse”: This Court has consistently endorsed the living tree principle as a fundamental tenet of constitutional

interpretation. Constitutionalprovisions are intended to provide “a continuing framework for the legitimate exercise of governmental power”: Hunter v. Southam Inc., (SCC), [1984] 2 S.C.R. 145 , per Dickson J. (as he then was), at p. 155. But at the same time, this Court is not free toinvent new obligations foreign to the original purpose of the provision at issue. The analysis must be anchored in the historical context ofthe provision.

As emphasized above, we must heed Dickson J.’s admonition “not to overshoot the actual purpose of the right or freedomin question, but to recall that the Charter was not enacted in a vacuum, and must therefore … be placed in its proper linguistic,philosophic and historical contexts”: Big M Drug Mart, supra, at p. 344; see Côté, supra, at p. 265. Dickson J. was speaking of theCharter, but his words apply equally to the task of interpreting the NRTA. Similarly, Binnie J. emphasized the need for attentiveness tocontext when he noted in R. v.

Marshall, (SCC), [1999] 3 S.C.R. 456, at para. 14, that “'[g]enerous' rules ofinterpretation should not be confused with a vague sense of after-the-fact largesse.” Again the statement, made with respect to theinterpretation of a treaty, applies here. II. COURT

SUMMARY [19] The plaintiffs’ declaratory relief is for a determination of the meaning of a head of power under the Constitution, subsection91(24) that the term “Indian”, as used in that head of power, encompasses Métis and Non-Status Indians. This is not a

section 35 [as am.by Constitution Amendment Proclamation, 1983, SI/84-102, Schedule, s. 2] of the Constitution Act, 1982 [Schedule B, Canada Act 1982,1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] case nor the

interpretation or application of particular rights either under theConstitution or under specific agreements, nor is it about Aboriginal rights. [20] This is an appropriate circumstance and the plaintiffs have sufficient standing for this Court to make a declaratory order.

Thedeclaration with respect to subsection 91(24) is granted; the other two declarations, ancillary in nature, are dismissed. [21] The timeframe covered by this case commences with among the first interactions between French colonial government andAboriginal people up to the very near past. [22] During the colonial era, particularly the British colonial era, people of mixed European and Native ancestry were largelyconsidered as Indians.

This was furthered by the colonial government’s attempt to grant status as Indians to Natives—the first efforts atinclusion/exclusion notions through “marrying-in—marrying-out” provisions.

Métis and others of mixed ancestry in the landsadministered by the Hudson’s Bay Company [HBC] were also generally classed as Natives or Indians and often described as “half-breeds”. [23] With Confederation and the takeover of responsibility for the lands and people in the areas of the Hudson’s Bay Company, it wasimportant to have a broad power over those who were not part of Euro-Canadian society to facilitate expansion and development of thenew country. A purposive approach to constitutional

interpretation is mandated by the Supreme Court of Canada.

[ 24 ] In the absence of any record of debates or discussions concerning this Indian power, the Court had to rely on what was done just before and for some period after Confederation to give context and meaning to the words of subsection 91(24). [ 25 ] The evidence concerning Non-Status Indians establishes that such persons were considered within the broad class of “Indians”. The situation regarding Métis was more complex and in many instances, including in the Red River area, Métis leadership rejected any inclusion of Métis as Indians.

Nevertheless, Métis generally and over a greater area were often treated as Indians, experienced the same or similar limitations imposed by the federal government, and suffered the same burdens and discriminations. They were at least treated as a separate group within the broad class of “Indians”. [ 26 ] In more recent times those deprivations have been acknowledged by the federal government: The Métis and non-status Indian people, lacking even the protection of the Department of Indian Affairs and Northern Development, are far more exposed to discrimination and other social disabilities.

It is true to say that in the absence of Federal initiative in this field they are the most disadvantaged of all Canadian citizens. [ 27 ] In the same vein, the federal government had largely accepted the constitutional jurisdiction over Non-Status Indians and Métis until the mid-1980s when matters of policy and financial concerns changed that acceptance. [ 28 ] Consistent with past Supreme Court decisions which taught towards a more inclusive

interpretation of the term “Indian”, such

interpretation must stand on its own neither undermined nor supported by

section 35 [ Constitution Act, 1982 ]. A more inclusive

interpretation is consistent with the evidence in this case and facilitates reconciliation with the broad group of Native peoples and their descendants. III. PARTIES [ 29 ] The plaintiffs consist of three individuals and one organization. Other than the declarations sought, which are to be applicable to all MNSI, the plaintiffs seek no specific relief for themselves. A. Gabriel Daniels [ 30 ] Gabriel Daniels is the son of Harry Daniels (now deceased), an original plaintiff in this action and a recognized advocate for Métis’ rights.

While raised in Edmonton by his mother, he moved to Ottawa in 1997 to be with his father when he was the president of what is now the Congress of Aboriginal Peoples (CAP). [ 31 ] Gabriel Daniels identifies himself as Métis, as did his father, mother and paternal and maternal grandmothers. He testified to his Métis cultural roots and involvement in Métis gatherings. He is a member of the Manitoba Metis Federation (MMF) and a past member of the Métis Nation of Alberta (MNA) and the Ontario Métis and Aboriginal Association (OMAA).

Both the MMF and MNA are affiliates of the Métis National Council (a split-off from CAP) while the OMAA is an affiliate of CAP. [ 32 ] While identifying as a Métis, Gabriel Daniels spoke to his long involvement in First Nations’ activities including pow-wows, sweat lodges and round dances. [ 33 ] Gabriel Daniels’ mother, in addition to identifying as a Métis, also applied for registered status under the Indian Act .

The denial of that request by Indian and Northern Affairs Canada (INAC) [now Aboriginal Affairs and Northern Development Canada] is indicative of the complexity of the issue as to who is an Indian and whether Métis are Indians under subsection 91(24) and the historical problem of categorizing such people. B. Leah Gardner [ 34 ] Leah Gardner is a Non-Status Indian from Ontario. Her children are Status Indians, as was her late husband. Her father acquired status as a result of subsection 6(2) amendments to the Indian Act known as Bill C-31 (

An Act to amend the Indian Act , S.C. 1985, c. 27) (Bill C-31) because he had one parent entitled to registration under subsection 6(1) of the Indian Act . [ 35 ] While Leah Gardner’s husband, whom she married in 1972, is a Status Indian under subsection 6(2) of the Indian Act , she was denied status because, as she explained, “section 6(2) of the Indian Act doesn’t provide for the registration of Non-Status wives of Indian men whose marriages took place prior to April 17, 1985. Only the wives of Indian men who are registered or entitled to be registered under section 6(1) (

a) of the Act are eligible for registration”. [ 36 ] Leah Gardner identifies herself as a Métis without status but prefers “Anish[i]nabe without status”—Anishinabe being the Ojibway word for “the original people” or “people of the land”. She is active in the OMAA and other Aboriginal organizations. She participates in both Métis and Anishinabe cultural events. C. Terry Joudrey [ 37 ] Terry Joudrey is a Non-Status Mi’kmaq Indian from Nova Scotia. He lives on the former New Germany reserve. Both his mother and his grandmother were Status Indians but his father was not.

He is a member of the Native Council of Nova Scotia and he uses his Aboriginal Treaty Rights Association card as if it was a licence to hunt and fish; activities he associates with Native traditions. D. The Minister of Indian Affairs and Northern Development [ 38 ] The defendant, the Minister of Indian Affairs and Northern Development, has the powers, duties and functions including all matters of which Parliament has jurisdiction, not by law assigned to any other department, board or agency of the Government of Canada, relating to Indian affairs. E. The Attorney General of Canada

[ 39 ] The Attorney General of Canada is responsible for the regulation and conduct of all litigation for or against the Crown or any department, in respect of any subject within the authority or jurisdiction of Canada. F. Congress of Aboriginal Peoples [ 40 ] CAP is a body corporate that offers representation to Métis and Non-Status Indians throughout Canada.

Its objectives include “to advance on all occasions the … interest of the Aboriginal people of Canada and to co-ordinate their efforts for the purpose of promoting their common interests through collective action”. [ 41 ] CAP has been involved in this litigation for approximately 12 years. It claims to have spent over two million dollars to bring this case to trial. [ 42 ] As indicated in the

section “Discretion to Decide” [below, at paragraph 48], a somewhat unique feature of this litigation is that it has been principally funded by the federal government notwithstanding their numerous efforts to curtail this litigation. [ 43 ] However, the federal government’s funding contribution should not be taken to undermine the pivotal role CAP played in advancing this claim—a role that few, if any, individuals falling within the group known as MNSI could do. [ 44 ] CAP has played a key position in the modern day discussions between Native groups and the federal government but it is not the only group to speak on behalf of the Métis. [ 45 ] CAP (previously known as the Native Council of Canada or NCC—then sometimes confused with the National Capital Commission) had a serious internal dispute over Métis issues and representation. [ 46 ] In March 1983, the Prairie Métis either left or were expelled from the NCC and formed their own organization—the Métis National Council (MNC).

Thereafter, at the various constitutional discussions involving Native issues, the MNC were present along with the NCC/CAP. [ 47 ] Although the MNC were not involved in this litigation, the Court is cognizant of the fact that CAP is not the sole recognized voice of Métis. IV. DISCRETION TO DECIDE [ 48 ] It is a central theme of the defendants’ argument that this Court ought not to decide this matter because, in

summary, it is a theoretical matter which will not resolve anything. The defendants urge the Court not to exercise its discretion to grant one or more of the declarations requested.¸ [ 49 ] The defendants’ position is that none of the declarations will do anything but lead to further litigation. It is their thesis that what is at issue between the parties is alleged discrimination as between the treatment of MNSI and Status Indians. [ 50 ] This is not the first time that the defendants have raised the issue of whether declaratory relief is appropriate.

In the many years that this case has been in the Court system (since 1999), the defendants have brought various proceedings to stop the action proceeding but without success. [ 51 ] Having not succeeded in preventing this action going forward, the defendants now ask the Court not to make any finding on the merits one way or the other but to simply decline to exercise jurisdiction to decide. [ 52 ] A somewhat unique feature of this action is that, until the recent advance cost order, it has been funded under the Test Case Funding Program (TCFP) administered by the federal government.

The TCFP was created to fund important Native-related test cases that had the potential to create judicial precedent. [ 53 ] The defendants’ first point is that the first declaration will not resolve the real dispute between the parties because at best it would provoke further litigation or at worse cause confusion. The further litigation is said to be some claim of discrimination between MNSI and Status Indians either under

section 15 of the Charter or

section 35 of the Constitution Act, 1982 . [ 54 ] The principal issue in this action is whether the federal government has jurisdiction to make laws in respect of MNSI under subsection 91(24) of the Constitution Act, 1867 because they are “Indians”. The other two declarations flow from the answer to the first issue. [ 55 ] The record in this action is replete with references to the dispute as to jurisdiction over MNSI and with reasons why the federal government has sometimes taken the position that it does not have such jurisdiction under subsection 91(24) .

It should be noted here, that at other times, federal officials acknowledged that the federal government had such jurisdiction even where it did not wish to exercise it. [ 56 ] As early as 1905, Ontario and Canada exchanged correspondence over which level of government was responsible for addressing the claims of half-breeds in respect of Treaty No. 9 (1905–1906).

A similar exchange arose in 1930 between Alberta and Canada concerning responsibility for indigent half-breeds with Saskatchewan calling on the federal government to address their needs as “part and parcel of the Indian problem”. [ 57 ] There is a real live jurisdictional issue which has been recognized by the Royal Commission on Aboriginal Peoples (RCAP) in its calling for the federal government to bring a reference, particularly in respect of Métis, to decide whether subsection 91(24) applies to Métis people. [ 58 ] Government documents destined to Cabinet assessing RCAP recommendations concluded that it would be premature to embrace RCAP’s recommendation to negotiate Métis claims absent a court decision on, amongst others, the division of federal-provincial

liability. [59] In the absence of any such reference or other proceeding, the plaintiffs have sought a declaration along the same lines as theRCAP recommendation. [60] Justice Hugessen summarized the three basic requirements for obtaining declaratory relief and concluded that they had been met.As Justice Hugessen said in respect of one of the defendants’ motions to dismiss this action (Daniels v.

Canada (Minister of IndianAffairs and Northern Development), 2008 FC 823 (Daniels), at paragraphs 6–8): The fact that the government has the power to raise the same issues which come up in this case and to raise them by way of a referencedoes not mean that those issues cannot come before the Court in some other way. In my view, the present action is precisely such anotherway and is legitimate. The classic three requirements in this and I think in every other Court for obtaining declaratory relief are: 1. That plaintiff has an interest 2. That there be a serious contradictor for the claim. 3.

That the issue raised and upon which a declaration is sought is a real and serious one and not merely hypothetical or academic.(Montana Band of Indians v. Canada, (FCA), [1991] 2 F.C. 30 (C.A.), leave to appeal to S.C.C. refused (1991), 136N.R. 421). In my opinion it is certainly not beyond question that those requirements have not been met in the present case. Indeed, I think that theyare all met and satisfied. [61] Justice Hugessen’s

summary is in accord with the following from Solosky v. The Queen, (SCC), [1980] 1 S.C.R.821, at pages 830–831: Declaratory relief is a remedy neither constrained by form nor bounded by substantive content, which avails persons sharing a legalrelationship, in respect of which a ‘real issue’ concerning the relative interests of each has been raised and falls to be determined. The principles which guide the court in exercising jurisdiction to grant declarations have been stated time and again. In the early case ofRussian Commercial and Industrial Bank v.

British Bank for Foreign Trade Ltd. ([1921] 2 A.C. 438), in which parties to a contractsought assistance in construing it, the Court affirmed that declarations can be granted where real, rather than fictitious or academic,issues are raised. Lord Dunedin set out this test (at p. 448): The question must be a real and not a theoretical question, the person raising it must have a real interest to raise it, he must be able tosecure a proper contradictor, that is to say, someone presently existing who has a true interest to oppose the declaration sought. In Pyx Granite Co. Ltd. v.

Ministry of Housing and Local Government ([1958] 1 Q.B. 554), (rev’d [1960] A.C. 260, on other grounds),Lord Denning described the declaration in these general terms (p. 571): … if a substantial question exists which one person has a real interest to raise, and the other to oppose, then the court has a discretion toresolve it by a declaration, which it will exercise if there is good reason for so doing. [62] The trial record’s amended statement of claim raises discrimination under

section 15 of the Charter and

section 35 of theConstitution Act, 1982, but in the context of denial of jurisdiction and refusal or failure to consult in good faith. [63] The plaintiffs’ prayer for relief makes no reference to discrimination or grounds for a remedy in the usual nature for adiscrimination case. [64] The defendants have tried to cast the plaintiffs’ case as one of discrimination, the subject of a

section 15 proceeding or a questionof federal spending power to extend programs and services. However, this is the plaintiffs’ case to frame and it has chosen not to frame itas the defendants would wish it. [65] The first declaration will resolve the immediate dispute over jurisdiction. Whether such resolution leads to further litigation orpossible political pressure is not a grounds for refusing to hear this matter.

The plaintiffs are not claiming a right to specific legislation oraccess to specific programs. [66] It is an accepted right that a plaintiff may frame the action (subject to various rules of pleading) as it wishes. It is not for thedefendants to tell the plaintiffs what their case is or should be. [67] The defendants also argue that these declarations are being advanced in a factual vacuum. The defendants are correct that theremust be a factual foundation upon which to base a determination of rights (see Kitkatla Band v.

British Columbia (Minister of SmallBusiness, Tourism and Culture), 2002 SCC 31, [2002] 2 S.C.R. 146; R. v. Edwards Books and Art Ltd., (SCC), [1986] 2S.C.R. 713). [68] While people per se rather than the subject-matter do not fall in or out of the division of powers, the plaintiffs assert the right forMNSI to be included as Indians under subsection 91(24) and subject to the exclusive jurisdiction of the federal government to make lawsin relation to them. The nature of subsection 91(24) is to confer jurisdiction over a specific group of people.

In that regard, it is differentthan most other powers conferred to either the federal or provincial governments under the Constitution. [69] It is no answer for the defendants to say that a case such as this cannot be brought because there is no federal legislation againstwhich to assert an action. There is no such legislation because the federal government denies jurisdiction over MNSI. This is a classic

Catch-22 situation. It is a situation for which the declaration proceeding is well suited to resolve. [70] It is difficult to sustain any argument that there is a factual vacuum in a case with more than six weeks of evidence, much of itexpert and profoundly historical, encompassing approximately 800 exhibits (with few, if any, single page exhibits) extracted from over15 000 documents.

The sweep of the historical evidence ranged from first contact with North American Natives to very currentAboriginal-federal government negotiations. [71] In many regards the type of evidence in this action is similar and sometimes identical to that of Manitoba Métis Federation Inc. v.Canada (Attorney General), 2010 MBCA 71 , [2010] 12 W.W.R. 599, both at the trial and appellate levels.

The type ofevidence is also similar in many respects to that in Blais, above. [72] The defendants argue that this action cannot result in a duty to legislate even if the defined people fall within subsection 91(24)(see Reference re Canada Assistance Plan (B.C.), (SCC), [1991] 2 S.C.R. 525).

The plaintiffs have not sought any ordersuggesting a duty to legislate or to have access to specific programs; they seek to know whether they fall within that class of people inrespect of whom Canada has the exclusive jurisdiction to make laws. [73] Any uncertainty about provincial laws such as Alberta’s Metis Settlements Act, R.S.A. 2000, c. M-14, can only be removed by adecision on the issue raised whether the Métis are Indians for purposes of subsection 91(24).

The legitimacy of the Alberta legislationdoes not necessarily preclude federal jurisdiction to legislate in respect of Métis. [74] There is no question that there are certain definitional difficulties in this action but there is evidence that this can be resolved.Further, the Supreme Court in R. v. Powley, 2003 SCC 43, [2003] 2 S.C.R. 207 (Powley), dealing with who are Métis, held thatdifficulties of definition are not to be exaggerated as a basis for defeating constitutional rights. The principle is particularly apt in thisaction.

Should difficult cases be a grounds for not deciding, and this case has more than enough difficulties, the courts would not becarrying out their constitutional obligations as courts to decide real legal disputes. [75] The Court has addressed the issue that

section 15 of the Charter is a better and more appropriate way to proceed. Given thedecision in Lovelace v. Ontario, 2000 SCC 37, [2000] 1 S.C.R. 950 (Lovelace) and Alberta (Aboriginal Affairs and NorthernDevelopment) v. Cunningham, 2011 SCC 37, [2011] 2 S.C.R. 670 (Cunningham), there may be significant doubt as to the availability ofthat remedy. [76] The defendants also contend that this action is tantamount to an impermissible private reference.

Justice Hugessen has addressedthat point fully in Daniels, above, at paragraph 6 of his decision. [77] In addition to the above forming the grounds to reject the defendants’ arguments not to decide, there are additional factors whichassist in resolving this issue. In exercising the Court’s discretion, the Court must also have considered the practicality and prejudice ofdeclining to decide. [78] This action has taken over 12 years to get to this point. It has been funded largely by the TCFP, a program which is subject togovernment policy as to its continuance.

The plaintiffs are already under an advance costs order to ensure that this action could continueto be tried when the TCFP funding cap had been reached, which it has. There is no assurance that some other alternate action could befinancially sustained by which the plaintiffs could address the issues they have brought to Court. [79] Furthermore, the public has already advanced approximately $2 million to the plaintiffs even with plaintiffs’ counsel’scontribution of work at substantially below usual hourly rates. The government of Canada has also had to pay its Justice counsel andtheir experts.

The Court considered the overall financial public investments in the advance costs order (Daniels v. Canada (Indian Affairsand Northern Development), 2011 FC 230, 387 F.T.R. 102) with a rough estimate of $5–6 million. [80] There has been significant time, and millions of public funds invested in this action which would be wasted if the Court declinedto decide this matter.

It would not be in the public interest to exercise the Court’s discretion to not decide the matter in addition to all theother reasons cited above. [81] Returning to the basic principles underlying the right to seek a declaration from a court, the Supreme Court of Canada has againrecently affirmed the basic principles applicable to such cases. In Canada (Prime Minister) v.

Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44, atparagraph 46, the Supreme Court said: In this case, the evidentiary uncertainties, the limitations of the Court’s institutional competence, and the need to respect the prerogativepowers of the executive, lead us to conclude that the proper remedy is declaratory relief. A declaration of unconstitutionality is adiscretionary remedy: Operation Dismantle, at p. 481, citing Solosky v. The Queen, (SCC), [1980] 1 S.C.R. 821. It hasbeen recognized by this Court as “an effective and flexible remedy for the settlement of real disputes”: R. v.

Gamble, (SCC), [1988] 2 S.C.R. 595, at p. 649. A court can properly issue a declaratory remedy so long as it has the jurisdiction over the issue atbar, the question before the court is real and not theoretical, and the person raising it has a real interest to raise it. Such is the case here. [82] This Court has jurisdiction over the case, the question before the Court is real, and the persons raising the issues have a realinterest to raise it. [83] Therefore, the Court cannot accept the defendants’ invitation to decline to decide this matter. V.

NATURE OF THE PROBLEM [84] The circumstances which the plaintiffs claim to have given rise to this litigation is well described in a memorandum to Cabinetfrom the Secretary of State dated July 6, 1972: The Métis and non-status Indian people, lacking even the protection of the Department of Indian Affairs and Northern Development, are

far more exposed to discrimination and other social disabilities. It is true to say that in the absence of Federal initiative in this field they are the most disadvantaged of all Canadian citizens. [ 85 ] The Métis and Non-Status Indians have been described similarly in various other documents in evidence in this case. [ 86 ] From the Métis perspective, they see the provincial governments as treating the Métis as “political footballs”.

The federal government denies that they have responsibility for Métis; the provinces take the opposite position and see the matter as a funding issue for which the federal government is primarily, if not exclusively, responsible. [ 87 ] The essential feature of this perspective—the jurisdictional avoidance feature—was confirmed by Ian Cowie, a senior official in the Department of Indian and Northern Affairs (as it was known) who had significant experience in Aboriginal affairs and who possessed the corporate policy history of the Department.

The result was that services to MNSI just were not supplied while governments fought about jurisdiction—principally a fight about who bore financial responsibility. [ 88 ] In an interim report from the Consultative Group on MNSI Socioeconomic Development in 1979 (a federal government report developed to outline future consultation strategies with provincial MNSI associations and the Native Council of Canada), federal officials point out: (

a) the impact of changing the criteria for Indian registration (a matter that goes to the root of the Non-Status Indian issue); (

b) the federal government has restricted its special powers and obligations (under the Constitution) to Status Indians and land reserved for Indians whereas the provinces have recognized no special obligations to Native people other than those imposed by treaty or in the Prairie provinces, the Natural Resources Transfer Acts (1930) [ The Alberta Natural Resources Act , S.C. 1930, c. 3; The Manitoba Natural Resources Act , S.C. 1930, c. 29; The Saskatchewan Natural Resources Act , S.C. 1930, c. 41]. Neither level of government recognizes any special legal obligation for people of Indian ancestry other than Status Indians; (

c) while neither the federal nor provincial level of government officially recognizes any special obligation to MNSI, there are some joint federal-provincial programs which seem to be the only type of help on the horizon. [ 89 ] In addition to the discussion of federal provincial positions in respect of MNSI, the paper gave a useful synopsis of some of the historical factors affecting MNSI; none of which are in serious disagreement with the expert opinions that were put before the Court. [ 90 ] The process of recording the history of Native people in Canada is an activity that will be ongoing well into the future.

Although oversimplification of such a massive subject is fraught with danger, a brief explanation of certain historical elements is necessary as background to an understanding of present conditions concerning the legal status, geographic location and current circumstances of Native people. [ 91 ] The Department of Indian Affairs and Northern Development (DIAND) paper of August 1978 entitled “The Historical Development of the Indian Act ” indicates that one of the first legislative provisions to differentiate between “status” and “non-status” Indians was an 1851 amendment (

An Act to repeal in part and to amend

an Act, intituled,

An Act for the better protection of the Lands and property of the Indians in Lower Canada , S. Prov. C. 1851 (14 & 15 Vict.), c. 59) to the Upper Canada Indian Protection Act of 1850 (

An Act for the protection of the Indians in Upper Canada from imposition, and the property occupied or enjoyed by them from trespass or injury , S. Prov. C. 1850, c. 74). This amendment was made to clarify the definition of an “Indian” in relation to the legislative purpose of securing Indian land from “White” encroachment. Through the definition of “Indian”, the 1851 amendment indirectly excluded “Whites” living among Indians and non-Indian males married to Indian women from obtaining legal status as “Indians”. On the other hand, the definition of “Indian” included [section II]: II. … Thirdly.

All women, now or hereafter to be lawfully married to any of the persons included in the several classes hereinbefore designated; the children issued of such marriages, and their descendants. Thus started one of the discriminatory practices based on sex that was destined to be carried throughout the evolution of the Indian Act to the present day.

Those practices have of course had a major influence on the composition of the group called Non-Status Indians. [ 92 ] A few years later, on June 10, 1857, An Act to encourage the gradual Civilization of the Indian Tribes in this Province, and to amend the Laws respecting Indians , S. Prov. C. 1857 (20 Vict.), c. 26, contained a

preamble indicating that the government favoured integration of Indians rather than additional legislative exclusions. The

preamble said this:

Preamble. Whereas it is desirable to encourage the progress of Civilization among the Indian Tribes in this Province, and the gradual removal of all legal distinctions between them and her Majesty’s other Canadian Subjects, and to facilitate the acquisition of property and of the rights accompanying it, by such Individual Members of the said Tribes as shall be found to desire such encouragement and to have deserved it ….

This 1857 Act started the process of enfranchisement for “deserving Indians”—another practice that was destined to be continued throughout the evolution of the Indian Act and to contribute substantial numbers to the ranks of the Non-Status Indians. [ 93 ] While these actions of government in the Canadas were setting the legislative course for the future division of Status Indians and other people of Native ancestry, which was later extended to all provinces, events in the vast territory of the Hudson’s Bay Company were continuing to recognize another group referred to as “Métis”.

The term, originally restricted to the offspring of French and Indian parents, later Scottish and Indian parents and predominantly west of Southern Ontario, has gradually been broadened in common usage to include all people of mixed Indian and other ancestry who are not Status Indians but who claim a culture distinction. However, amongst

the Native people it still carries a connotation somewhat different than the term Non-Status Indian, and relates principally to the mixed ancestry descendants of the fur trade era who did not become registered as Indians during the treaty making and registration processes. [ 94 ] The cumulative effects over time of these parentage relations and legislative and administrative events produced, by evolution, a group called Métis and Non-Status Indians.

Because of their community of interest as people of Indian ancestry, their grievances against government, and their adverse social and economic circumstances, the group has been able to maintain its identity and form national, provincial and regional associations claiming a potential membership of approximately one million people. [ 95 ] The geographic distribution of these people today strongly reflects their historical origins and social evolution.

In Central and Eastern Canada, where Native Euro-Canadian inter-relationships and integrative forces have been operative for a comparatively long time, people of some Native ancestry, other than Status Indians living on reserves, are generally distributed throughout the population. There are some communities, often near reserves, where groups of inter-related families of Native ancestry constitute a recognized portion of the community.

But throughout the Maritimes, and the southern portions of Ontario and Quebec, there are few communities considered to be primarily Métis or Non-Status Indian in character. [ 96 ] In contrast, throughout the mid-northern region of Canada, and particularly in the vast reaches of the former territory of the Hudson’s Bay Company, stretching from Western Quebec to the Rockies, Métis and Non-Status Indians make up a large percentage of the population of many communities.

Most of these communities began as fur trading posts and now commonly consist of a mixture of Status Indians living on reserve land, Métis living on adjacent Crown land and a small enclave of “white” public servants and merchants. In the Prairie provinces the Métis communities tend to be concentrated along the agricultural-forest fringe, frequently again in close proximity to Indian reserves. In large measure, this concentration is a reflection of the administration of lands during the homesteading era on the Prairies.

These historical influences on the distribution of Native people throughout Canada have been tempered in more recent times by the growing migration to cities. [ 97 ] The present location of Native people in relation to the general population of Canada and the main stream of economic activity has major consequences in terms of their present circumstances and their developmental opportunities.

In a Department of Regional Economic Expansion publication of February 10, 1977, entitled Special ARDA in Relation to the Future Direction of Native Socioeconomic Development , Canada was divided into four main “socio-economic regimes” for purposes of describing the diversity of current circumstances and opportunities of Native people. The divisions selected were: metropolitan centres; developed rural areas; mid- north and coastal regions; and the arctic region.

The differences in social and economic conditions amongst these “regions” are critical to the formulation of policies and programs aimed at developmental assistance. [ 98 ] The Native population of Canada is young. In recent years, a number of factors have combined to produce a Native population which has a much higher percentage of children and youth than the Canadian population as a whole. It is estimated that 56 percent of the present Native population is under the age of 20. This compares with 36 percent in the total population.

In Saskatchewan, where the Native population is estimated at about 12 percent of the total, the proportion of Native people in the school age population is considered to be over 20 percent.

This age distribution has major implications for the educational system, future entrants to the labour force and, of course, the design of policies and programs for developmental assistance. (All percentages are approximate.) [ 99 ] The DIAND document of 1980, “Natives and the Constitution—Background and Discussion Paper” (1980 DIAND Paper), was a document which formed part of Cabinet documents and has been reviewed for and considered by the highest level of government. The views expressed represented prevailing views of the highest levels of the bureaucracy and the political structure.

The federal position was described (and continues to be): The federal government has chosen to exercise the authority assigned to it under the BNA Act very narrowly (by its definition of Indian in the Indian Act and policy decisions to provide only very limited direct services to off-reserve Indians). This has created a point of considerable contention. [ 100 ] The provincial position i

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