Joyce v. Nova Scotia (Attorney General), 2022 NSSC 22

SUPREME COURT OF Nova Scotia Citation: Joyce v. Nova Scotia (Attorney General), 2022 NSSC 22 Date: 20220127 Docket: Hfx No. 490119 Registry: Halifax Between: Stephen Joyce, Robert Cooper, E. Dianne Langley, Kenneth Langille Plaintiffs v.

The Attorney General of Nova Scotia, representing Her Majesty the Queen, in right of the Province of Nova Scotia Defendant Decision Judge: The Honourable Justice Peter RosinskiHeard: June 4, 22 and 23, 2021, in Halifax, Nova ScotiaCounsel: Andrew Lokan, Glynnis Hawe, and Robert Pineo, for the Plaintiffs Sean Foreman, Q.C. and Jeremy Smith, for the Defendant Revised Decision: The text of the original decision has been corrected according to the attached erratum, dated March 15, 2022 By the Court: Introduction [1] In R v Bernard, 2002 NSCA 5 at para. 37 Justice Roscoe stated for the unanimous Court:[1] “As mentioned above, there is no debate that the Mi'kmaq people have an aboriginal right to hunt for food in Nova Scotia. (See R. v.Isaac (1975), (NS CA), 13 N.S.R. (2d) 460 (C.A.); R. v.

Denny (1990), (NS CA), 94 N.S.R. (2d)253 (C.A.); and R. v. Toney (1993), (NS PC), 127 N.S.R. (2d) 322 (P.C.)).” [2] However, there remains a serious legal debate about what Nova Scotian persons are included within the group Justice Roscoeidentified as “the Mi’kmaq people”. [3] The Plaintiffs in this proposed class proceeding (who, for convenience, I will collectively refer to as a subset of the Self-Identifying Mi’kmaw peoples of Nova Scotia: “SIMM”) are requesting the court to give them the opportunity to address that question. [4] Stephen Joyce, Robert Cooper, E.

Dianne Langley and Kenneth Langille say that they are directly descended from NovaScotian Mi’kmaw peoples and are the beneficiaries of treaty and aboriginal rights that exist to this day, and entitle them to hunt andharvest. [5] Because they are not Status Indians associated with a specific Band under the federal Indian Act, the Province refuses torecognize the Plaintiffs as “Mi’Kmaw people” who have those hunting and harvesting rights protected by s. 35 of the Constitution Act1982. [6] Stephen Joyce and the others want this court to formally recognize and declare that they too are entitled to

section 35 rights tohunt and harvest.

[ 7 ] These so-called

section 35 rights are only available to persons who are “aboriginal peoples of Canada”. [ 8 ] The rights to hunt and harvest arising from both treaty and aboriginal rights, were constitutionally enshrined in Canada by

Section 35 of the Constitution Act, 1982 : Recognition of existing aboriginal and treaty rights 35

(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. Definition of aboriginal peoples of Canada

(2) In this Act, aboriginal peoples of Canada includes the Indian, Inuit and Métis peoples of Canada. Land claims agreements

(3) For greater certainty, in subsection (1) treaty rights includes rights that now exist by way of land claims agreements or may be so acquired. Aboriginal and treaty rights are guaranteed equally to both sexes

(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons. [ 9 ] The Province denies that the Plaintiffs have

section 35 rights. [ 10 ] However, for 28 years, starting in 1989, the Province did recognize each of them as having these rights, as a result of each of them having been issued so-called ATRA (“Aboriginal and Treaty Rights Access”) Passports. [ 11 ] The Native Council of Nova Scotia (“NCNS”) is a voluntary association registered under the Nova Scotia Societies Act . Since 1974, it has continuously represented the interests of individuals like the Plaintiffs. [ 12 ] In the years between 1989 and 2017, the Province relied upon the NCNS to determine which claimant SIMM/ “Mi’kmaw” individuals (beyond Status Indians associated with Bands) should be accepted by the Province as having

section 35 rights to hunt and harvest. [ 13 ] The Province also accepted that such SIMM persons issued ATRA Passports (identification cards to that effect) were entitled to exercise

section 35 rights in relation to matters within provincial jurisdiction. [ 14 ] Since 2017, the Province has no longer recognized the previously issued ATRA passports. [ 15 ] Instead, the Province has only permitted those Mi’Kmaw who are Status Indians under the Indian Act and are associated with Indian Act Bands to exercise a

section 35 right to hunt and harvest. [2] [ 16 ] Stephen Joyce and the others are suing the Province. They claim they are being discriminated against contrary to

section 15 of the Charter of Rights and Freedoms , and that their

section 35 rights ought to be formally recognized by the court. [ 17 ] To achieve this recognition, they seek to proceed by way of a class action. To succeed they must satisfy the court that they have met all the pre-conditions for a class action under the Class Proceedings Act , S.N.S. 2007, c. 28 as amended [“ CPA ”]. [3] [ 18 ] The question for me is whether I should “certify” or permit the Plaintiffs to proceed with their claims by way of the class action procedure ? [ 19 ] I am satisfied that their class action should be certified.

Background [4] [ 20 ] For present purposes, these are the following arguable categories of Nova Scotian Mi’kmaw : 1. persons who are registered under the Indian Act and live on Reserve as “Status” Indians; 2. persons who are registered as Indian, but are Off-Reserve because they do not live on or are not associated with a Reserve, yet are still recognized by the Federal Government - for example, on the Atlantic General List (as is Mr. Cooper – who is “Status”); 3. persons who are not entitled to be registered as Indian under the Indian Act (as are Mr. Joyce, Ms. Langley, and Mr.

Langille), but claim to be Mi’kmaw . [ 21 ] Presently, the Province of Nova Scotia’s position is that it will only recognize as having

section 35 Constitution Act rights: 1. Indian Act Band members (“Status” Indians associated with a specific Band); and 2. those claimants (possibly Status Indians not associated with a specific Band, Non-Status Indians and others [5] ) who are vetted and accepted as Mi’kma w by the “Wula na kinu” (“This is Who We Are” initiatives) which only since 2019 has claimed to be the sole authority to determine which persons should be issued Nova Scotia Mi’kma w “Harvester Identification Cards” (similar to the

ATRA Passports). This initiative was created pursuant to a decision of the Assembly of Nova Scotia Mi’Kmaw Chiefs, and those of the Millbrook and Sipekne’katik First Nations (all of whom are Status Indians). [ 22 ] The latter initiative purports to give sole responsibility for determining which applicants claiming to be Mi’kmaw , are in fact and law Mi’kmaw , and therefore entitled as beneficiaries to

section 35 Constitution Act rights. [ 23 ] However, from 1989 to 2017 the Province of Nova Scotia did recognize as if having

section 35 Constitution Act rights, persons who were approved by the Native Council of Nova Scotia and were consequently issued a so-called “Aboriginal and Treaty Rights Access” (“ATRA”) Passport. This document was prima facie accepted by the Province of Nova Scotia as proof that the bearer was a beneficiary of

section 35 Constitution Act rights and entitled to harvest renewable resources in Nova Scotia. [ 24 ] The Province’s 1989- 2017 position is consistent with the articles of a September 20, 1990 Agreement between itself and the bulk of the Status Indian Band’s governance, the Native Council of Nova Scotia and the Union of Nova Scotia Indians. In particular,

Article 2.01 thereof read: “The hunting rights described in the Agreement may be exercised by a Mic Mac resident of Nova Scotia who qualifies in accordance with Articles 2.02 and 2.03 and (

a) is a member of a Band, (

b) is (unless a majority of the Joint Management Board concludes that member does not have an ancestral connection to the Mic Mac nation) … ‘a full member of the [NCNS] as at the date of this Agreement…’ [ 25 ] Then almost 30 years later there was an abrupt change. As the Province stated in its April 6, 2021 brief: “In

summary, the Province’s position was concisely stated and clearly communicated by Minister Miller in the final paragraph of her July 13, 2017 letter to the President of the NCNS [Native Council of Nova Scotia]: ‘I would like to reiterate that this decision [i.e. to no longer accept ATRA Passports as a prima facie sufficient basis upon which to recognize the bearers as entitled to exercise s. 35 Constitution Act rights in Nova Scotia] was not taken lightly.

The Native Council has been a leader in resource conservation and in administering its ATRA program and continues to provide valued programs and services to the off reserve aboriginal community in Nova Scotia. This issue is fundamentally about how the Mi’kmaw of Nova Scotia, as a

section 35 rights bearing community, identifies its harvesters. The Province, in making this decision, will respect to the consensus position of the recognized representatives of the Mi’kmaw of Nova Scotia. ’” [My bolding added] [ 26 ] According to the Province, the “recognized representatives of the Mi’kmaw of Nova Scotia” are those who represent the 13 Indian Act Bands in Nova Scotia.

Since August 15, 2017, the Province’s “Mi’kmaq Harvest Policy” (Soriano affidavit Exhibit “B”) provides: “To be accepted as a Mi’kmaq of Nova Scotia harvester, individuals must have a federal Indian status card associated with a Mi’kmaq of Nova Scotia First Nation or a Nova Scotia Mi’kmaq Harvest Card, issued by the Assembly of Nova Scotia Mi’kmaw Chiefs.” [ 27 ] The Plaintiffs point out that since 1974 the Native Council of Nova Scotia has been representing the interests of Mi’kmaw persons, including those who are now members of the proposed Class (including Joyce, Cooper, Langley and Langille). [ 28 ] It is a voluntary membership organization under the Societies Act , RSNS 1989, c. 435 as amended. [ 29 ] The NCNS has approximately 3300 to 3500 full members , who have to be 16 years or older; domiciled in Nova Scotia; and prove native ancestry or be a Non-Status Indian Act member of the Mi’kmaw .

One cannot be a full member if one is an Indian Act Band member. [ 30 ] I have earlier collectively referred to this group as the Off- Reserve, Non-Status or Self-Identifying Mi’kmaw - i.e. “SIMM”. [ 31 ] The Plaintiffs argue that they have

section 35 rights, and their chosen representative for consultations has been, and remains, the Native Council of Nova Scotia. [ 32 ] The Plaintiffs claim that the Decision of the Province to no longer recognize the ATRA Passports after July 2017, has breached their: 1. right to be consulted (specifically through their “chosen representative”- the NCNS) and is a failure to uphold the honour of the Crown; 2.

section 35 Constitution Act rights (treaty and aboriginal); and 3.

section 15 Charter of Rights protection to the “equal protection and equal benefit of the law without discrimination and, in

particular, without discrimination based on race, national or ethnic origin…” [6] [ 33 ] The Plaintiffs have decided to proceed by way of a class action pursuant to the Class Proceedings Act , 2007 SNS, c. 28. [ 34 ] This decision addresses whether or not, as a matter of procedure, all or some of their claims should be dealt with by the court as a class action. [ 35 ] The Province vigorously opposes the Plaintiffs’ motion.

The Class Proceedings Act [ 36 ] The authors of The Law of Class Actions in Canada , (Canada Law Book, Thomson Reuters Canada Limited 2014) aptly summarized such legislation (pp. 1-2): “The class action is a procedural device for people who have suffered a common wrong. One or more plaintiffs can bring an action on behalf of many, and in this way have an efficient mechanism to achieve legal redress.… In its modern formulation, the class action promotes more than just efficiency; there is also the idea that modern society creates harms that affect large numbers of people who do not have the means to seek redress.

As discussed further in this

chapter and a theme throughout the text, the three public policy purposes that underlie the modern class action are: 1) access to justice 2) behaviour modification; and 3) judicial economy, including the avoidance of a multiplicity of proceedings.” [ 37 ] In Wright Medical Technology Canada Ltd. v. Taylor, 2015 NSCA 68 , Justice Saunders stated for the court: CRITERIA FOR CERTIFICATION Section 7(1) Class Proceedings Act sets out the criteria which must be met before the court can certify a matter as a class proceeding. That

section states as follows: 7(1)The court shall certify a proceeding as a class proceeding on an application under

Section 4, 5 or 6 if, in the opinion of the court, (a)the pleadings disclose or the notice of application discloses a cause of action; (b)there is an identifiable class of two or more persons that would be represented by a representative party; (c)the claims of the class members raise a common issue, whether or not the common issue predominates over issues affecting only individual members; (d)a class proceeding would be the preferable procedure for the fair and efficient resolution of the dispute; and (e)there is a representative party who (i)would fairly and adequately represent the interests of the class,

(ii)has produced a plan for the class proceeding that sets out a workable method of advancing the class proceeding on behalf of the classand of notifying class members of the class proceeding, and (iii)does not have, with respect to the common issues, an interest that is in conflict with the interests of other class members. The factors to be considered in determining whether a class proceeding would be preferable under s. 7(1)(

d) are found in s. 7(2) ofthe Act, which provides:

(2) In determining whether a class proceeding would be the preferable procedure for the fair and efficient resolution of the dispute, thecourt shall consider (a)whether questions of fact or law common to the class members predominate over any questions affecting only individual members; (b)whether a significant number of the class members have a valid interest in individually controlling the prosecution of separateproceedings; (c)whether the class proceeding would involve claims or defences that are or have been the subject of any other proceedings; (d)whether other means of resolving the claims are less practical or less efficient; (e)whether the administration of the class proceeding would create greater difficulties than those likely to be experienced if relief weresought by other means; and (f)any other matter the court considers relevant.

Other than the requirement that the pleadings disclose a cause of action, the plaintiff has the burden of establishing the remaining criteriaon evidence. The burden on the plaintiff is to show “some basis in fact” for each of the criteria. This is obviously a very low thresholdand indicates that the court is not to engage in the assessment or weighing of evidence on a certification motion.

A defendant maychoose to provide evidence to rebut that filed by the plaintiff, but if they wish to avoid certification, they will have to satisfy the courtthat there is no basis in the evidence for one or more of the certification criteria.

An examination of each of the statutory criteria that the plaintiffs must establish. 1-Do the pleadings disclose a cause of action? [38] The Plaintiffs have chosen to make claims based on three causes of action:[7] 1. a breach of the duty to consult, and a failure to uphold the honour of the Crown; 2. breaches of their treaty and aboriginal rights; 3. breaches of the protection against discrimination afforded to them by

section 15 of the Charter of Rights. [39] Whether a pleading “discloses a cause of action”, requires this court to presume that the pleaded facts are true, and considerwhether “a pleading should not be struck for failure to disclose a cause of action unless it is ‘plain and obvious’ that no claim exists”:Hollick v. Metropolitan Toronto 2001 SCC 68 , [2001] 3 SCR 158 para. 25 per McLachlin CJC for the Court…” - CapitalDistrict Health Authority v. Murray, 2017 NSCA 28, at para. 30.

[ 40 ] I will next consider the necessary components of each cause of action pleaded, and whether the pleadings support a conclusion that the material facts necessary to each cause of action have sufficiently been pleaded - or alternatively stated: whether the cause of action is “doomed to failure”.

i) Breach of the duty to consult and failure to uphold the honour of the Crown [ 41 ] The general legal principles were referenced by Justice Fichaud in Nova Scotia (Aboriginal Affairs) v.

Pictou Landing First Nation , 2019 NSCA 75 (leave to appeal denied March 26, 2020): [4] Under the Constitution Act, 1982 , before Aboriginal peoples incur a potential adverse impact to their credibly asserted rights that is caused by Crown conduct, they are entitled to consultation with the Crown and, when appropriate, to accommodation. … … [79] In Carrier Sekani , McLachlin C.J.C. for the Court discussed the standards of review for issues of consultation with Aboriginal groups: [64] Before leaving the role of tribunals in relation to consultation, it may be useful to review the standard of review that courts should apply in addressing the decisions of tribunals.

The starting point is Haida Nation , at para. 61 : The existence or extent of the duty to consult or accommodate is a legal question in the sense that it defines a legal duty. However, it is typically premised on an assessment of the facts. It follows that a degree of deference to the findings of fact of the initial adjudicator may be appropriate… . Absent error on legal issues, the tribunal may be in a better position to evaluate the issue than the reviewing court, and some degree of deference may be required. In such a case, the standard of review is likely to be reasonableness .

To the extent that the issue is one of pure law, and can be isolated from the issues of fact, the standard is correctness.

However, when the two are inextricably entwined, the standard will likely be reasonableness. … [My bolding added] … The Legal Principles on Consultation [94] I will start by outlining the general legal principles, as they have evolved, then analyze the submissions that the judge erred. [95] The Constitution Act, 1982 says: 35(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed. [96] Section 35(1) affirms that before suffering a potential adverse impact, caused by Crown conduct, to their credibly claimed rights, Aboriginal peoples are entitled to consultation with the Crown and, in appropriate circumstances, to accommodation.

The conditions and scope of the entitlement are governed by principles developed in a series of rulings by the Supreme Court of Canada. [97] Haida Nation (2004): In Haida Nation , supra , the Province of British Columbia issued a Tree Farm Licence in 1961 to MacMillan Bloedel Limited. The license permitted the harvesting of trees on lands claimed by the Haida people. In 1981, 1995 and 2000, the Province replaced the previous license with replacement licenses to Weyerhaeuser Company Limited. The Haida Nation challenged the replacement licenses as having been issued without consultation.

The Supreme Court held that the provincial Crown had breached its duty of consultation with the Haida. [98] McLachlin C.J.C. explained the basis for consultation and accommodation and set out the test to trigger the Crown’s duty. The duty to consult and, if appropriate, accommodate “is grounded in the honour of the Crown”, a term which “is not a mere incantation, but rather a core precept that finds its application in concrete practices”: ( Haida Nation , para. 16 ). The Chief Justice summarized the rationale: 25 Put simply, Canada’s Aboriginal peoples were here when Europeans came, and were never conquered.

Many bands reconciled their claims with the sovereignty of the Crown through negotiated treaties. Others, notably in British Columbia, have yet to do so. The potential rights embedded in these claims are protected by s. 35 of the Constitution Act, 1982 . The honour of the Crown requires that these rights be determined, recognized and respected. This, in turn, requires the Crown, acting honourably, to participate in processes of negotiation.

While this process continues, the honour of the Crown may require it to consult and, where indicated, accommodate Aboriginal interests. [bolding added] [99] The rationale means the duty may apply prospectively to potential Aboriginal rights before those rights have been finally determined: 26 Honourable negotiation implies a duty to consult with Aboriginal claimants and conclude an honourable agreement reflecting the claimants’ inherent rights. But proving rights may take time, sometimes a very long time.

In the meantime, how are the interests under discussion to be treated? … 27 The answer, once again, lies in the honour of the Crown. The Crown, acting honourably, cannot cavalierly run roughshod over Aboriginal interests where claims affecting these interests are being seriously pursued in the process of treaty negotiation and proof. It must respect these potential, but yet unproven, interests. The Crown is not rendered impotent. It may continue to manage the resource in question pending claims resolution.

But, depending on the circumstances, discussed more fully below, the honour of the Crown may require it to consult with and reasonably accommodate Aboriginal interests pending resolution of the claim. …

… 32 The jurisprudence of this Court supports the view that the duty to consult and accommodate is part of a process of fair dealing andreconciliation that begins with the assertion of sovereignty and continues beyond formal claims resolution. … [bolding added] [100] The Chief Justice set out the test that triggers the duty to consult: 35 But, when precisely does a duty to consult arise?

The foundation of the duty in the Crown’s honour and the goal of reconciliationsuggest that the duty arises when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal rightor title and contemplates conduct that might adversely affect it …. 36 ... As I stated (dissenting) in Marshall [R. v. Marshall, (SCC), [1999] 3 S.C.R. 456], at para. 112, one cannot“meaningfully discuss accommodation or justification of a right unless one has some idea of the core of that right and its modern scope”.

However, it will frequently be possible to reach an idea of the asserted rights and of their strength sufficient to trigger an obligation toconsult and accommodate, short of final judicial determination or settlement. To facilitate this determination, claimants should outlinetheir claims with clarity, focussing on the scope and nature of the Aboriginal rights they assert and on the alleged infringements. … 37 There is a distinction between knowledge sufficient to trigger a duty to consult and, if appropriate, accommodate, and the content orscope of the duty in a particular case.

Knowledge of a credible but unproven claim suffices to trigger a duty to consult. The contentof the duty, however, varies with the circumstances, as discussed more fully below. A dubious or peripheral claim may attract a mereduty of notice, while a stronger claim may attract more stringent duties. The law is capable of differentiating between tenuous claims,claims possessing a strong prima facie case, and established claims.

Parties can assess these matters, and if they cannot agree, tribunalsand courts can assist. … [bolding added] [101] The process of consultation must be “meaningful”: 42 At all stages, good faith is required. The common thread on the Crown’s part must be “the intention of substantially addressing[Aboriginal] concerns” as they are raised [citation omitted], through a process of meaningful consultation. Sharp dealing is not permitted.However, there is no duty to agree; rather, the commitment is to a meaningful process of consultation.

As for Aboriginal claimants, theymust not frustrate the Crown’s reasonable good faith attempts, nor should they take unreasonable positions to thwart government frommaking decisions or acting in cases where, despite meaningful consultation, agreement is not reached. [citations omitted] Mere hardbargaining, however, will not offend an Aboriginal people’s right to be consulted. [102] The Crown may delegate the consultative process but cannot escape the responsibility to consult.

The Chief Justice said: 53 … the duty to consult and accommodate, as discussed above, flows from the Crown’s assumption of sovereignty over lands andresources formerly held by the Aboriginal group. This theory provides no support for an obligation on third parties to consult oraccommodate. The Crown alone remains legally responsible for the consequences of its actions and interactions with third parties,that affect Aboriginal interests. The Crown may delegate procedural aspects of consultation to industry proponents seeking a particulardevelopment; that is not infrequently done in environmental assessments. ...

However, the ultimate legal responsibility for consultationand accommodation rests with the Crown. The honour of the Crown cannot be delegated. [bolding added] [103] Taku River (2004): In Taku River Tlingit First Nation, supra, a companion case to Haida Nation, the Chief Justice for the Courtelaborated on the Honour of the Crown: 23 The Province argues that, before the determination of rights through litigation or conclusion of a treaty, it owes only a common law“duty of fair dealing” to Aboriginal peoples whose claims may be affected by government decisions.

It argues that a duty to consultcould arise after rights have been determined, through what it terms a “justificatory fiduciary duty”. Alternatively, it submits, a fiduciaryduty may arise where the Crown has undertaken to act only in the best interests of an Aboriginal people. The province submits that itowes the TRTFN no duty outside of those specific situations. 24 The province’s submissions present an impoverished vision of the honour of the Crown and all that it implies.

As discussed in thecompanion case of Haida, supra, the principle of the honour of the Crown grounds the Crown’s duty to consult and if indicatedaccommodate Aboriginal peoples, even prior to proof of asserted Aboriginal rights and title. The duty of honour derives from theCrown’s assertion of sovereignty in the face of prior Aboriginal occupation. It has been enshrined in s. 35(1) of the Constitution Act,1982, which recognizes and affirms existing Aboriginal rights and titles. Section 35(1) has, as one of its purposes, negotiation of justsettlement of Aboriginal claims.

In all its dealings with Aboriginal peoples, the Crown must act honourably, in accordance with itshistorical and future relationship with the Aboriginal peoples in question.

The Crown’s honour cannot be interpreted narrowlyor technically, but must be given full effect in order to promote the process of reconciliation mandated by s. 35(1). [bolding added] [104] Mikisew (2005): In Mikisew, supra, Binnie J. for the Court expanded on the Chief Justice’s comments in Haida Nation,respecting the degree of “adverse effect” needed to trigger consultation: 34 … The question in each case will therefore be to determine the degree to which conduct contemplated by the Crown wouldadversely affect those rights so as to trigger the duty to consult. Haida Nation and Taku River set a low threshold.

The flexibility lies notin the trigger (“might adversely affect it”) but in the variable content of the duty once triggered. At the low end, “the only duty on theCrown may be to give notice, disclose information, and discuss any issues raised in response to notice” (Haida Nation, at para. 43). …

[bolding added] [105] Carrier Sekani (2010): Several years later, in Carrier Sekani , supra , the Supreme Court refined the principles. [106] In the 1950s, without consultation, the Government of British Columbia authorized the construction of a dam and reservoir that affected First Nations’ claims to their ancestral homeland and fishing rights. The sale of energy from the facilities was governed by Energy Purchase Agreements that were subject to approval by the British Columbia Utilities Commission.

In 2007, the Government of British Columbia sought the Commission’s approval of such an Agreement with Rio Tinto Alcan. At issue was the adequacy of the Crown’s consultation with the Aboriginal groups. The Commission accepted it had the jurisdiction to consider the adequacy of consultation. The Commission then found that the 2007 Energy Purchase Agreement did not adversely affect any Aboriginal interest, so the duty to consult was not triggered. It approved the Agreement.

Its ruling was overturned by the British Columbia Court of Appeal but reinstated by the Supreme Court of Canada. [107] McLachlin C.J.C. for the Court explained why the duty to consult applies before the final determination of the Aboriginal right or claim: [33] The duty to consult described in Haida Nation derives from the need to protect Aboriginal interests while land and resource claims are ongoing or when the proposed action may impinge on an Aboriginal right.

Absent this duty, Aboriginal groups seeking to protect their interests pending a final settlement would need to commence litigation and seek interlocutory injunctions to halt the threatening activity. These remedies have proven time-consuming, expensive and are often ineffective.

Moreover, with a few exceptions, many Aboriginal groups have limited success in obtaining injunctions to halt development or activities on the land in order to protect contested Aboriginal or treaty rights. [34] … Rather than pitting Aboriginal peoples against the Crown in the litigation process, the duty recognizes that both must work together to reconcile their interests. It also accommodates the reality that often Aboriginal peoples are involved in exploiting the resource. Shutting down development by court injunction may serve the interest of no one.

The honour of the Crown is therefore best reflected by a requirement for consultation with a view to reconciliation. [35] Haida Nation sets the framework for dialogue prior to the final resolution of claims by requiring the Crown to take contested or established Aboriginal rights into account before making a decision that may have an adverse impact on them … The duty is prospective , fastening on rights yet to be proven. [Supreme Court’s italics, bolding added] [108] The Chief Justice enumerated and explained Haida Nation ’s test as to when the Crown’s duty to consult arises: [31] ...

This test can be broken down into three elements: (1) the Crown’s knowledge, actual or constructive, of a potential Aboriginal claim or right; (2) contemplated Crown conduct; (3) the potential that the contemplated conduct may adversely affect an Aboriginal claim or right. … [bolding added] [109] As to the first element: [40] To trigger the duty to consult, the Crown must have real or constructive knowledge of a claim to the resource or land to which it attaches: Haida Nation , at para. 35 . The threshold, informed by the need to maintain the honour of the Crown, is not high .

Actual knowledge arises when a claim has been filed in court or advanced in the context of negotiations, or when a treaty right may be impacted [citation omitted]. Constructive knowledge arises when lands are known or reasonably suspected to have been traditionally occupied by an Aboriginal community or an impact on rights may reasonably be anticipated. While the existence of a potential claim is essential, proof that the claim will succeed is not. What is required is a credible claim. … [41] The claim or right must be one which actually exists and stands to be affected by the proposed government action.

This flows from the fact that the purpose of consultation is to protect unproven or established rights from irreversible harm as the settlement negotiations proceed. [citations omitted]. [bolding added] [110] Then the second element: [42] Second, for a duty to consult to arise, there must be Crown conduct or a Crown decision that engages a potential Aboriginal right. What is required is conduct that may adversely impact on the claim or right in question. [43] This raises the question of what government action engages the duty to consult.

It has been held that such action is not confined to government exercise of statutory powers: [citations omitted]. This accords with the generous, purposive approach that must be brought to the duty to consult . [44] Further, government action is not confined to decisions or conduct which have an immediate impact on lands and resources. A potential for adverse impact suffices . Thus the duty to consult extends to “strategic, higher level decisions” that may have an impact on Aboriginal claims and rights [citation omitted].

Examples include the transfer of tree licences which would have permitted the cutting of old-growth forest ( Haida Nation) ; …. [bolding added] [111] Lastly, the third element:

[45] The third element of a duty to consult is the possibility that the Crown conduct may affect the Aboriginal claim or right. Theclaimant must show a causal relationship between the proposed government conduct or decision and a potential for adverseimpacts on pending Aboriginal claims or rights.

Past wrongs, including previous breaches of the duty to consult, do not suffice. [46] Again, a generous, purposive approach to this element is in order, given that the doctrine’s purpose, as stated by Newman, is“to recognize that actions affecting unproven Aboriginal title or treaty rights can have irreversible effects that are not in keeping with theHonour of the Crown” (p. 30, citing Haida Nation, at paras. 27 and 33).Mere speculative impacts, however, will not suffice. … Theadverse effect must be on the future exercise of the right itself; an adverse effect on a First Nations future negotiating position does notsuffice. [47] Adverse impacts extend to any effect that may prejudice a pending Aboriginal claim or right.

Often the adverse effects arephysical in nature. However, as discussed in connection with what constitutes Crown conduct, high-level management decisions orstructural changes to the resource’s management may also adversely affect the Aboriginal claims or rights even if those decisions haveno “immediate impact on lands and resources” [citation omitted].

This is because such structural changes to the resourcesmanagement may set the stage for further decisions that will have a direct adverse impact on land and resources. [49] The question is whether there is a claim or right that potentially may be impacted by the current government conduct or decision inquestion.

Prior and continuing breaches, including prior failures to consult, will only trigger a duty to consult if the present decisionhas the potential of causing a novel adverse impact on a present claim or existing right. … … [52] The respondent’s submissions are based on a broader view of the duty to consult. It argues that even if the 2007 EPA will haveno impact on the Nechako River water levels, the Nechako fisheries or the management of the contested resource, the duty to consultmay be triggered because the 2007 EPA is part of a larger hydro-electric project which continues to impact its rights.

The effect of thisproposition is that if the Crown proposes an action, however limited, that relates to a project that impacts Aboriginal claims or rights, afresh duty to consult arises. The government action or decision, however inconsequential, becomes the hook that secures and reels inthe constitutional duty to consult on the entire resource. [53] I cannot accept this view of the duty to consult. Haida Nation negates such a broad approach. It grounded the duty to consult inthe need to preserve Aboriginal rights and claims pending resolution.

It confines the duty to consult to adverse impacts flowing fromthe specific Crown proposal at issue – not to larger adverse impacts of the project of which it is a part. The subject of theconsultation is the impact on the claimed rights of the current decision under consideration. [54] … An order compelling consultation is only appropriate where the proposed Crown conduct, immediate or prospective, mayadversely impact on established or claimed rights.

Absent this, other remedies may be more appropriate. [Supreme Court’s italics, bolding added] [112] The Commission found that the Energy Purchase Agreement would not adversely affect the Aboriginal interests.

In upholdingthat finding, the Chief Justice said: [92] … The uncontradicted evidence established that Alcan would continue to produce electricity at the same rates regardless ofwhether the 2007 EPA was approved or not, and that Alcan will sell its power elsewhere if BC Hydro does not buy it … . [SupremeCourt’s italics] [113] Ktunaxa Nation (2017): As the approach is prospective, the tribunal or reviewing court that assesses issues of consultation doesnot determine the validity of the claimed Aboriginal right. The merits of the underlying right await the appropriate trial process: KtunaxaNation v.

British Columbia (Forests, Lands and Natural Resource Operations), 2017 SCC 54 , [2017] 2 S.C.R. 386, paras. 84-85. [114] Clyde River (2017): In Clyde River (Hamlet) v. Petroleum Geo-Services Inc., 2017 SCC 40 , [2017] 1 S.C.R. 1069,para. 25, Justices Karakatsanis and Brown for the Court reiterated the Haida Nation/Carrier Sekani test that the duty to consult istriggered when (1) the Crown has actual or constructive knowledge of a potential Aboriginal right, and there is

(2) Crown conduct that(3) might adversely affect the Aboriginal right. [115] Justices Karakatsanis and Brown affirmed the Crown’s responsibility to address the constitutional imperative: [24] Above all, and irrespective of the process by which consultation is undertaken, any decision affecting Aboriginal or treaty rightsmade on the basis of inadequate consultation will not be in compliance with the duty to consult, which is a constitutional imperative.Where challenged, it should be quashed on judicial review. … [116] To satisfy the Constitution’s reconciliatory objective, Justices Karakatsanis and Brown interpreted “Crown conduct” and“adverse effects” broadly: [25] … Crown conduct which would trigger the duty is not restricted to the exercise by or on behalf of the Crown of statutory powers orof the royal prerogative, nor is it limited to decisions that have an immediate impact on lands and resources.

The concern isfor adverse impacts, however made, upon Aboriginal and treaty rights and, indeed, a goal of consultation is to identify, minimize andaddress adverse impacts where possible. (Carrier Sekani, at paras. 45-46). [bolding added] [117] Chippewas of the Thames (2017): In Chippewas of the Thames First Nation v. Enbridge Pipelines Inc., 2017 SCC 41 ,[2017] 1 S.C.R. 1099, the National Energy Board was asked to approve a modification of a pipeline that crossed the First Nation’straditional territory.

The Board considered whether there had been adequate consultation, held the project’s effect on Aboriginal interestswould be minimal, and approved the project with accommodating conditions.

[118] Justices Karakatsanis and Brown held that the duty to consult is triggered by adverse impacts from the specific proposal currentlyat issue and not by merely historic impacts. However, the historical context and cumulative effects of an ongoing project may inform theanalysis of the impact to be expected from the current proposal: [41] The duty to consult is not triggered by historical impacts. It is not a vehicle to address historical grievances.

In Carrier Sekani,this Court explained that the Crown is required to consult on “adverse impacts flowing from the specific Crown proposal at issue – not[on] larger adverse impacts of the project of which it is a part. The subject of the consultation is the impact on the claimed rights ofthe current decision under consideration” (Carrier Sekani, at para. 53 [emphasis in Carrier Sekani]).

Carrier Sekani also clarified that“[a]n order compelling consultation is only appropriate where the proposed Crown conduct, immediate or prospective, may adverselyimpact on established or claimed rights” (para. 54). [42] That said, it may be impossible to understand the seriousness of the impact of a project on s. 35 rights without considering thelarger context [citation omitted]. Cumulative effects of an ongoing project, and historical context, may therefore inform the scopeof the duty to consult [citation omitted]. This is not “to attempt the redress of past wrongs.

Rather, it is simply to recognize an existingstate of affairs, and to address the consequences of what may result from” the project [citation omitted]. [bolding added] [119] Mikisew (2018): In Mikisew Cree First Nation v. Canada (Governor General in Council), 2018 SCC 40 , [2018] 2S.C.R. 765, paras. 32, 102 and 148, the majority held that the law-making process does not trigger the duty to consult.

JusticeKarakatsanis succinctly tracked the consultative duty’s derivation from first principles: [21] The honour of the Crown is a foundational principle of Aboriginal law and governs the relationship between the Crown andAboriginal peoples. … [22] The underlying purpose of the honour of the Crown is to facilitate the reconciliation of these interests [citation omitted]. One waythat it does so is by promoting negotiation and the just settlement of Aboriginal claims as an alternative to litigation and judiciallyimposed outcomes [citation omitted].

This endeavour of reconciliation is a first principle of Aboriginal law. … [24] As this Court has stated in Haida Nation, the honour of the Crown “is not a mere incantation, but rather a core precept that finds itsapplication in concrete practices” and “gives rise to different duties in different circumstances” (paras. 16 and 18). … Determining whatconstitutes honourable dealing, and what specific obligations are imposed by the honour of the Crown, depends heavily on thecircumstances [citations omitted]. [25] The duty to consult is one such obligation.

In instances where the Crown contemplates executive action that may adversely affect s.35 rights, the honour of the Crown has been found to give rise to a justiciable duty to consult [citations omitted]. … These casesdemonstrate that, in certain circumstances, Crown conduct may not constitute an “infringement” of established s. 35 rights; however,acting unilaterally in a way that may adversely affect such rights does not reflect well on the honour of the Crown and may thus warrantintervention on judicial review. [26] … The duty to consult ensures that the Crown acts honourably by preventing it from acting unilaterally in ways that undermine s.35 rights.

This promotes reconciliation between the Crown and Aboriginal peoples first, by providing procedural protections to s.35 rights, and second, by encouraging negotiation and just settlements as an alternative to the cost, delay and acrimony of litigating s.35 infringement claims [citations omitted]. [27] … Crown conduct need not have an immediate impact on lands and resources to trigger the duty to consult.

This Court hasrecognized that “high-level management decisions or structural changes to [a] resource’s management” may also trigger aconsultative duty [citation omitted]. … [bolding added] Analysis – The Test [120] The test has three elements: (1) the Crown’s actual or constructive knowledge of a potential Aboriginal right or claim, and (2)contemplated Crown conduct (3) that potentially would adversely impact the Aboriginal right or claim: Haida Nation, para. 35; CarrierSekani, para. 31.

First Element – Crown Knowledge [121] The Crown’s knowledge of “a credible but unproven claim suffices”. “[T]he threshold, informed by the need to maintain thehonour of the Crown, is not high”. The Crown’s “actual knowledge arises when a claim has been filed”. Haida Nation, para. 37. CarrierSekani, para. 40.

The Court that assesses whether the duty to consult is triggered does not determine the merits of the underlyingclaim: Ktunaxa Nation, paras. 84-85. … Second and Third Elements – Crown Conduct that Causes a Potential Adverse Impact [127] The submissions have, for the most part, treated the second and third elements of the test in tandem, as did Justice Gabriel’sreasons. I will do the same.

[128] The point of departure is the Chief Justice’s reasoning in Carrier Sekani which, for convenience, I requote: [44] … government action is not confined to decisions or conduct which have an immediate impact on lands and resources. A potentialfor adverse impact suffices. Thus the duty to consult extends to “strategic, higher level decisions” that may have an impact onAboriginal claims and rights [citation omitted].

Examples include the transfer of tree licences which would have permitted the cutting ofold-growth forest (Haida Nation). … … [47] … high-level management decisions or structural changes to the resource’s management may also adversely affect Aboriginalclaims or rights even if these decisions have no “immediate impact on lands and resources” [citation omitted].

This is because suchstructural changes to the resources management may set the stage for further decisions that will have a direct adverse impact on landand resources. … [90] … In cases where adverse impact giving rise to a duty to consult has been found as a consequence of organizational or power-structure changes, it has generally been on the basis that the operational decision at stake may affect the Crown’s future ability todeal honourably with Aboriginal interests. Thus, in Haida Nation, the Crown proposed to enter into a long-term timber sale contract withWeyerhaeuser.

By entering into the contract, the Crown would have reduced its power to control logging of trees, some of them oldgrowth forest, and hence its ability to exercise decision making power over the forest consistent with the honour of the Crown. … [ChiefJustice’s italics, bolding added] [42] The Crown arguments in response include that there were no material facts pleaded to establish that (and therefore the cause ofaction on the pleadings is doomed to fail):[8] 1. the Province owed these individuals a duty to consult them, or that they delegated authority to discuss their treaty/aboriginalrights issues to the NCNS; 2. the Province owed a duty to consult with the Class through the NCNS; 3. the Province had “specific or subjective knowledge of facts pertaining to either the identity of the individual plaintiffs, theirstatus as holders of ATRA Passports, and the subjective details of how and why they exercised any aboriginal or treaty rights in theProvince, such that [the Province] would ‘know’ who the Class [members] was… there is no ‘generalized duty to consult with aboriginalpeoples… must be case specific facts presented to meet each element of the test… [from] Haida Nation, [2004 SCC 73]”…; [see alsoBuffalo River Dene Nation v Saskatchewan, 2015 SKCA 31][9] [43] I am satisfied that the pleadings sufficiently make out that there is a duty here, that it arises because the Crown had knowledge,real or constructive, of the potential existence of a claim of aboriginal rights or treaty rights, and contemplated conduct that mightadversely affect those rights, as well as a failure to consult the NCNS, such that there was a properly pleaded breach of the duty toconsult and failure to uphold the honour of the Crown.[10] ii) Breaches of the treaty or aboriginal

section 35 rights of the Class[11] [44] In oral argument, counsel for the Province stated that it conceded that “the Mi’Kmaw of Nova Scotia” retain an existingaboriginal and treaty right to hunt in the Province per Simon v. R., (SCC), [1985] 2 SCR 387.[12] [45] Mr. Simon was a Status Indian and member of the Shubenacadie Indian Brook (No. 2) Band. Notably the NCNS was anintervener in that case. At issue was the Treaty of 1752, which the court found “was validly created by competent parties”. [46] That court also found that the Treaty contained a right to hunt concluding: “It is implicit in the right granted under

Article 4 of the Treaty of 1752 that [Mr. Simon] has the right to possess a gun and ammunition ina safe manner in order to be able to exercise the right to hunt.” [47] Lastly, the court concluded: “the Treaty of 1752 was not terminated by subsequent hostilities in 1753. The Treaty is of as muchforce and effect today as it was at the time it was concluded… it is not necessary to come to a final decision on the [Province’s] argument[that the Treaty of 1752 has been extinguished”. [48] Regarding whether Mr.

Simon had established a sufficient connection with the original group of Mi’Kmaw Indians inhabitingthe Eastern part of Nova Scotia in the Shubenacadie area, the court concluded: “[Mr. Simon] has established a sufficient connection with the Indian band, signatories to the Treaty of 1752… [Mr. Simon]… was aregistered Indian under the Indian Act, and was an ‘adult member of the Shubenacadie-Indian Brook Band of Micmac Indiansand was a member of the Shubenacadie Band Number 2’. [Mr.

Simon] is, therefore a Shubenacadie -Micmac Indian, living in thesame area as the original Micmac Indian tribe, party to the Treaty of 1752. This evidence alone, in my view, is sufficient to prove[Mr. Simon’s] connection to the Tribe originally covered by the Treaty. True, this evidence is not conclusive proof that [Mr.Simon] is a direct descendent of the Mi’kmaq Indians covered by the Treaty of 1752. It must, however, be sufficient, forotherwise no Micmac Indian would be able to establish the descendancy. The Mi’kmaq did not keep written records. Micmactraditions are largely oral in nature.

To impose an impossible burden of proof would in effect render nugatory any right to huntthat a present day Shubenacadie-Micmac Indian would otherwise be entitled to invoke based on this Treaty.”[13]

[My bolding added] [49] R. v. Marshall, (SCC), [1999] 3 SCR 456 (notably the NSNC was an intervener in that case as well), dealtwith the rights of the Mi’Kmaw to harvest eels pursuant to the treaties of 1760 – 61, which were held to be still in force. Justice Binniestated:[14] 4 .… the courts have not applied strict rules of

interpretation to treaty relationships… … 14 … The appellant says the treaty allows him to fish for trade. In my view, the 1760 treaty does affirm the right ofthe Mi’kmaq people to continue to provide for their own sustenance by taking the products of their hunting, fishing and othergathering activities, and trading for what in 1760 was termed “necessaries”. This right was always subject to regulation. TheCrown does not suggest that the regulations in question accommodate the treaty right. The Crown’s case is that no such treaty rightexists.

Further, no argument was made that the treaty right was extinguished prior to 1982, and no justification was offered bythe Crown for the several prohibitions at issue in this case. Accordingly, in my view, the appellant is entitled to an acquittal… ‘Generous’ rules of

interpretation should not be confused with a vague sense of after-the-fact largesse… The Indian parties did not, forall practical purposes, have the opportunity to create their own written record of the negotiations. Certain assumptions are therefore madeabout the Crown’s approach to treaty making (honourable) which the court acts upon in its approach to treaty

interpretation (flexible) asto the existence of a treaty… the completeness of any written record (the use, for example, of context and implied terms to makehonourable sense of the treaty arrangement: R v Simon, …) and the

interpretation of treaty terms once found to exist (Badger)… The 1752 Mi’kmaq Treaty 15 In 1749, following one of the continuing wars between Britain and France, the British Governor at Halifax hadissued what was apparently the first of the Proclamations “authorizing the military and all British subjects to kill or capture any Mi’kmaqfound, and offering a reward”. This prompted what the Crown’s expert witness at trial referred to as a “British-Mi’kmaq war”. By 1751relations had eased to the point where the 1749 Proclamation was revoked, and in November 1752 the Shubenacadie Mi’kmaq enteredinto the 1752 Treaty which was the subject of this Court’s decision in Simon. This treaty stated in

Article 4 that: It is agreed that the said Tribe of Indians shall not be hindered from, but have free liberty of Hunting and Fishing as usual and that if theyshall think a Truckhouse needful at the River Chibenaccadie or any other place of their resort, they shall have the same built and properMerchandize lodged therein, to be exchanged for what the Indians shall have to dispose of, and that in the mean time the said Indiansshall have free liberty to bring for Sale to Halifax or any other Settlement within this Province, Skins, feathers, fowl, fish or any otherthing they shall have to sell, where they shall have liberty to dispose thereof to the best Advantage. [Emphasis added.] 16 It will be noted that unlike the March 10, 1760 document, the earlier 1752 Treaty contains both a treaty rightto hunt and fish “as usual” as well as a more elaborate trade clause.

The appellant here initially relied on the 1752 Treaty as thesource of his treaty entitlement. In Simon, Dickson C.J., at p. 404, concluded that on the basis of the evidence adduced in thatcase, “[t]he Crown has failed to prove that the Treaty of 1752 was terminated by subsequent hostilities” and left the terminationissue open (at pp. 406-7). The Crown led more detailed evidence of hostilities in this case. It appears that while the British hadhoped that by entering the 1752 Treaty other Mi’kmaq communities would come forward to make peace, skirmishing commenced againin 1753 with the Mi’kmaq.

France and Britain themselves went to war in 1754 in North America. In 1756, as stated, anotherProclamation was issued by the British authorizing the killing and capturing of Mi’kmaq throughout Nova Scotia. According to thetrial judge, at para. 63, during the 1750s the “French were relying on Mi’kmaq assistance in almost every aspect of their militaryplans including scouting and reconnaissance, and guarding the Cape Breton coastline”. This evidence apparently persuaded theappellant at trial to abandon his reliance on the 1752 Peace and Friendship Treaty.

The Court is thus not called upon toconsider the 1752 Treaty in the present appeal. [My bolding added] [50] The court also spoke about general principles of treaty

interpretation: 78 This Court has set out the principles governing treaty

interpretation on many occasions. They include thefollowing. 1. Aboriginal treaties constitute a unique type of agreement and attract special principles of

interpretation: R. v. Sundown, (SCC), [1999] 1 S.C.R 393, at para. 24; R. v. Badger, (SCC), [1996] 1 S.C.R. 771, at para. 78; R. v. Sioui, (SCC), [1990] 1 S.C.R. 1025, at p. 1043; Simon v. The Queen, (SCC), [1985] 2 S.C.R. 387, at p. 404. Seealso: J. [Sákéj] Youngblood Henderson, “Interpreting Sui Generis Treaties” (1997), 36 Alta. L. Rev. 46; L. I. Rotman, “DefiningParameters: Aboriginal Rights, Treaty Rights, and the Sparrow Justificatory Test” (1997), 36 Alta. L. Rev. 149.

2. Treaties should be liberally construed and ambiguities or doubtful expressions should be resolved in favour of the aboriginalsignatories: Simon, supra, at p. 402; Sioui, supra, at p. 1035; Badger, supra, at para. 52. 3. The goal of treaty

interpretation is to choose from among the various possible

interpretations of common intention the one which bestreconciles the interests of both parties at the time the treaty was signed: Sioui, supra, at pp. 1068-69. 4. In searching for the common intention of the parties, the integrity and honour of the Crown is presumed: Badger, supra, at para. 41. 5. In determining the signatories’ respective understanding and intentions, the court must be sensitive to the unique cultural andlinguistic differences between the parties: Badger, supra, at paras. 52-54; R. v. Horseman, (SCC), [1990] 1 S.C.R. 901,at p. 907. 6.

The words of the treaty must be given the sense which they would naturally have held for the parties at the time: Badger, supra, atparas. 53 et seq.; Nowegijick v. The Queen, (SCC), [1983] 1 S.C.R. 29, at p. 36. 7. A technical or contractual

interpretation of treaty wording should be avoided: Badger, supra; Horseman, supra; Nowegijick, supra. 8. While construing the language generously, courts cannot alter the terms of the treaty by exceeding what “is possible on thelanguage” or realistic: Badger, supra, at para. 76; Sioui, supra, at p. 1069; Horseman, supra, at p. 908. 9. Treaty rights of aboriginal peoples must not be interpreted in a static or rigid way. They are not frozen at the date of signature. Theinterpreting court must update treaty rights to provide for their modern exercise.

This involves determining what modern practices arereasonably incidental to the core treaty right in its modern context: Sundown, supra, at para. 32; Simon, supra, at p. 402. 79 Two specific issues of

interpretation arise on this appeal. The answer to each is found in the foregoing

summary ofprinciples. 80 The first issue of

interpretation arises from the Court of Appeal’s apparent suggestion that peace treaties fall in adifferent category from land cession treaties for purposes of

interpretation, with the result that, when interpreting peace treaties, there isno “presumption” that rights were granted to the aboriginal signatories in exchange for entering into the treaty. This raises the issue ofwhether it is useful to slot treaties into different categories, each with its own rules of

interpretation. The principle that each treatymust be considered in its unique historical and cultural context suggests that this practice should be avoided. 81 The second issue of

interpretation raised on this appeal is whether extrinsic evidence can be used in interpretingaboriginal treaties, absent ambiguity. Again, the principle that every treaty must be understood in its historical and culturalcontext suggests the answer must be yes. It is true that in R. v. Horse, (SCC), [1988] 1 S.C.R. 187, at p. 201, this Courtalluded with approval to the strict contract rule that extrinsic evidence is not admissible to construe a contract in the absence ofambiguity.

However, subsequent decisions have made it clear that extrinsic evidence of the historic and cultural context of a treatymay be received absent ambiguity: Sundown, supra, at para. 25; Badger, supra, at para. 52. As Cory J. wrote in Badger, supra, atpara. 52, courts interpreting treaties “must take into account the context in which the treaties were negotiated, concluded andcommitted to writing”. 82 The fact that both the words of the treaty and its historic and cultural context must be considered suggeststhat it may be useful to approach the

interpretation of a treaty in two steps. First, the words of the treaty clause at issue shouldbe examined to determine their facial meaning, in so far as this can be ascertained, noting any patent ambiguities andmisunderstandings that may have arisen from linguistic and cultural differences. This exercise will lead to one or more possibleinterpretations of the clause. As noted in Badger, supra, at para. 76, “the scope of treaty rights will be determined by their wording”. The objective at this stage is to develop a preliminary, but not necessarily determinative, framework for the historical contextinquiry, taking into account the need to avoid an unduly restrictive

interpretation and the need to give effect to the principles ofinterpretation. 83 At the second step, the meaning or different meanings which have arisen from the wording of the treaty rightmust be considered against the treaty’s historical and cultural backdrop. A consideration of the historical background may suggest

latent ambiguities or alternative

interpretations not detected at first reading. Faced with a possible range of

interpretations, courts must rely on the historical context to determine which comes closest to reflecting the parties’ common intention. This determination requires choosing “from among the various possible

interpretations of the common intention the one which best reconciles” the parties’ interests: Sioui , supra , at p. 1069. Finally, if the court identifies a particular right which was intended to pass from generation to generation, the historical context may assist the court in determining the modern counterpart of that right: Simon , supra , at pp. 402-3; Sundown , supra , at paras. 30 and 33 . [My bolding added] [ 51 ] The Province’s arguments regarding why there is no sustainable

section 35 treaty and aboriginal rights cause of action on the pleaded facts, include that the Class does not plead the necessary R. v. Powley , 2003 SCC 43 , (paras. 30-35 ) factors, which that court intended should be a preliminary basis for “indicating the important components of the future definition [to ascertain Métis claims to

section 35 rights]”. The Province argues those principles are also applicable to the Nova Scotian SIMM, namely: “Three broad factors as indicia of Métis identity for the purpose of claiming Métis rights under

section 35 : self identification, ancestral connection, and community acceptance . [My bolding added] [ 52 ] In Powley the Court elaborated: [15] 10 The term “Métis” in s. 35 does not encompass all individuals with mixed Indian and European heritage; rather, it refers to distinctive peoples who, in addition to their mixed ancestry, developed their own customs, way of life, and recognizable group identity separate from their Indian or Inuit and European forebears.

Métis communities evolved and flourished prior to the entrenchment of European control, when the influence of European settlers and political institutions became pre- eminent. The Royal Commission on Aboriginal Peoples describes this evolution as follows: Intermarriage between First Nations and Inuit women and European fur traders and fishermen produced children, but the birth of new Aboriginal cultures took longer. At first, the children of mixed unions were brought up in the traditions of their mothers or (less often) their fathers.

Gradually, however, distinct Métis cultures emerged, combining European and First Nations or Inuit heritages in unique ways. Economics played a major role in this process. The special qualities and skills of the Métis population made them indispensable members of Aboriginal/non-Aboriginal economic partnerships, and that association contributed to the shaping of their cultures. . . . As interpreters, diplomats, guides, couriers, freighters, traders and suppliers, the early Métis people contributed massively to European penetration of North America.

The French referred to the fur trade Métis as coureurs de bois (forest runners) and bois brulés (burnt-wood people) in recognition of their wilderness occupations and their dark complexions. The Labrador Métis (whose culture had early roots) were originally called “livyers” or “settlers”, those who remained in the fishing settlements year-round rather than returning periodically to Europe or Newfoundland.

The Cree people expressed the Métis character in the term Otepayemsuak , meaning the “independent ones”. ( Report of the Royal Commission on Aboriginal Peoples: Perspectives and Realities , vol. 4, at pp. 199-200 (“ RCAP Report ”)) The Métis developed separate and distinct identities, not reducible to the mere fact of their mixed ancestry: “What distinguishes Métis people from everyone else is that they associate themselves with a culture that is distinctly Métis” ( RCAP Report , vol. 4, at p. 202). 11 The Métis of Canada share the common experience of having forged a new culture and a distinctive group identity from their Indian or Inuit and European roots .

This enables us to speak in general terms of “the Métis”. However , particularly given the vast territory of what is now Canada, we should not be surprised to find that different groups of Métis exhibit their own distinctive traits and traditions. This diversity among groups of Métis may enable us to speak of Métis “peoples”, a possibility left open by the language of s. 35(2), which speaks of the “Indian, Inuit and Métis peoples of Canada”. 12 We would not purport to enumerate the various Métis peoples that may exist .

Because the Métis are explicitly included in s. 35 , it is only necessary for our purposes to verify that the claimants belong to an identifiable Métis community with a sufficient degree of continuity and stability to support a site-specific aboriginal right . A Métis community can be defined as a group of Métis with a distinctive collective identity, living together in the same geographic area and sharing a common way of life. The respondents here claim membership in the Métis community centred in and around Sault Ste. Marie.

It is not necessary for us to decide, and we did not receive submissions on, whether this community is also a Métis “people”, or whether it forms part of a larger Métis people that extends over a wider area such as the Upper Great Lakes. 17 As indicated above, the inclusion of the Métis in s. 35 is not traceable to their pre-contact occupation of Canadian territory. The purpose of s. 35 as it relates to the Métis is therefore different from that which relates to the Indians or the Inuit.

The constitutionally significant feature of the Métis is their special status as peoples that emerged between first contact and the effective imposition of European control. The inclusion of the Métis in s. 35 represents Canada’s commitment to

recognize and value the distinctive Métis cultures, which grew up in areas not yet open to colonization, and which the framers of the Constitution Act, 1982 recognized can only survive if the Métis are protected along with other aboriginal communities. 18 With this in mind, we proceed to the issue of the correct test to determine the entitlements of the Métis under s. 35 of the Constitution Act, 1982 . The appropriate test must then be applied to the findings of fact of the trial judge. We accept Van der Peet as the template for this discussion.

However, we modify the pre-contact focus of the Van der Peet test when the claimants are Métis to account for the important differences between Indian and Métis claims .

Section 35 requires that we recognize and protect those customs and traditions that were historically important features of Métis communities prior to the time of effective European control, and that persist in the present day. This modification is required to account for the unique post-contact emergence of Métis communities, and the post-contact foundation of their aboriginal rights.

(1) Characterization of the Right 19 The first step is to characterize the right being claimed : Van der Peet , supra , at para. 76 . Aboriginal hunting rights, including Métis rights, are contextual and site-specific. The respondents shot a bull moose near Old Goulais Bay Road, in the environs of Sault Ste. Marie, within the traditional hunting grounds of that Métis community. They made a point of documenting that the moose was intended to provide meat for the winter. The trial judge determined that they were hunting for food, and there is no reason to overturn this finding.

The right being claimed can therefore be characterized as the right to hunt for food in the environs of Sault Ste. Marie. 20 We agree with the trial judge that the periodic scarcity of moose does not in itself undermine the respondents’ claim. The relevant right is not to hunt moose but to hunt for food in the designated territory. … 23 In addition to demographic evidence, proof of shared customs, traditions, and a collective identity is required to demonstrate the existence of a Métis community that can support a claim to site-specific aboriginal rights .

We recognize that different groups of Métis have often lacked political structures and have experienced shifts in their members’ self-identification. However, the existence of an identifiable Métis community must be demonstrated with some degree of continuity and stability in order to support a site-specific aboriginal rights claim. Here, we find no basis for overturning the trial judge’s finding of a historic Métis community at Sault Ste. Marie. This finding is supported by the record and must be upheld.

(3) Identification of the Contemporary Rights-Bearing Community 24 Aboriginal rights are communal rights: They must be grounded in the existence of a historic and present community, and they may only be exercised by virtue of an individual’s ancestrally based membership in the present community. The trial judge found that a Métis community has persisted in and around Sault Ste. Marie despite its decrease in visibility after the signing of the Robinson-Huron Treaty in 1850. While we take note of the trial judge’s determination that the Sault Ste.

Marie Métis community was to a large extent an “invisible entity” ( [1999] 1 C.N.L.R. 153 , at para. 80 ) from the mid-19th century to the 1970s, we do not take this to mean that the community ceased to exist or disappeared entirely. … 27 We conclude that the evidence supports the trial judge’s finding that the community’s lack of visibility was explained and does not negate the existence of the contemporary community . There was never a lapse; the Métis community went underground, so to speak , but it continued.

Moreover, as indicated below, the “continuity” requirement puts the focus on the continuing practices of members of the community, rather than more generally on the community itself, as indicated below. 28 The trial judge’s finding of a contemporary Métis community in and around Sault Ste. Marie is supported by the evidence and must be upheld.

(4) Verification of the Claimant’s Membership in the Relevant Contemporary Community 29 While determining membership in the Métis community might not be as simple as verifying membership in, for example, an Indian band, this does not detract from the status of Métis people as full-fledged rights-bearers . As Métis communities continue to organize themselves more formally and to assert their constitutional rights, it is imperative that membership requirements become more standardized so that legitimate rights-holders can be identified.

In the meantime, courts faced with Métis claims will have to ascertain Métis identity on a case-by-case basis. The inquiry must take into account both the value of community self-definition, and the need for the process of identification to be objectively verifiable.

In addition, the criteria for Métis identity under s. 35 must reflect the purpose of this constitutional guarantee: to recognize and affirm the rights of the Métis held by virtue of their direct relationship to this country’s original inhabitants and by virtue of the continuity between their customs and traditions and those of their Métis predecessors. This is not an insurmountable task. 30 We emphasize that we have not been asked, and we do not purport, to set down a comprehensive definition

of who is Métis for the purpose of asserting a claim under s. 35. We therefore limit ourselves to indicating the importantcomponents of a future definition, while affirming that the creation of appropriate membership tests before disputes arise is anurgent priority. As a general matter, we would endorse the guidelines proposed by Vaillancourt Prov. J. and O’Neill J. in thecourts below.

In particular, we would look to three broad factors as indicia of Métis identity for the purpose of claiming Métisrights under s. 35: self-identification, ancestral connection, and community acceptance. 31 First, the claimant must self-identify as a member of a Métis community.

This self-identification should not be of recentvintage: While an individual’s self-identification need not be static or monolithic, claims that are made belatedly in order to benefit froma s. 35 right will not satisfy the self-identification requirement. 32 Second, the claimant must present evidence of an ancestral connection to a historic Métis community. Thisobjective requirement ensures that beneficiaries of s. 35 rights have a real link to the historic community whose practices ground theright being claimed.

We would not require a minimum “blood quantum”, but we would require some proof that the claimant’sancestors belonged to the historic Métis community by birth, adoption, or other means. Like the trial judge, we would abstain fromfurther defining this requirement in the absence of more extensive argument by the parties in a case where this issue is determinative. Inthis case, the Powleys’ Métis ancestry is not disputed. 33 Third, the claimant must demonstrate that he or she is accepted by the modern community whose continuity withthe historic community provides the legal foundation for the right being claimed.

Membership in a Métis political organization may be relevant to the question of community acceptance, but it is not sufficient in the absence of a contextual understanding ofthe membership requirements of the organization and its role in the Métis community. The core of community acceptance is pastand ongoing participation in a shared culture, in the customs and traditions that constitute a Métis community’s identity anddistinguish it from other groups. This is what the community membership criterion is all about.

Other indicia of communityacceptance might include evidence of participation in community activities and testimony from other members about theclaimant’s connection to the community and its culture.

The range of acceptable forms of evidence does not attenuate the need for anobjective demonstration of a solid bond of past and present mutual identification and recognition of common belonging betweenthe claimant and other members of the rights-bearing community. 34 It is important to remember that, no matter how a contemporary community defines membership, only those memberswith a demonstrable ancestral connection to the historic community can claim a s. 35 right.

Verifying membership is crucial, sinceindividuals are only entitled to exercise Métis aboriginal rights by virtue of their ancestral connection to and currentmembership in a Métis community. 35 In this case, there is no reason to overturn the trial judge’s finding that the Powleys are members of the Métiscommunity that arose and still exists in and around Sault Ste. Marie. We agree with the Court of Appeal that, in the circumstances of thiscase, the fact that the Powleys’ ancestors lived on an Indian reserve for a period of time does not negate the Powleys’ Métisidentity. As the Court of Appeal indicated, “E.B.

Borron, commissioned in 1891 by the province to report on annuity payments to theMétis, was of the view that Métis who had taken treaty benefits remained Métis and he recommended that they be removed from thetreaty annuity lists” ((2001), (ON CA), 53 O.R. (3d) 35, at para. 139, per Sharpe J.A.). We emphasize that theindividual decision by a Métis person’s ancestors to take treaty benefits does not necessarily extinguish that person’s claim toMétis rights. It will depend, in part, on whether there was a collective adhesion by the Métis community to the treaty.

Based onthe record, it was open to the trial judge to conclude that the rights of the Powleys’ ancestors did not merge into those of the Indian band. [My bolding added] [53] In R. v. Sparrow, (SCC), [1990] 1 SCR 1075, the court considered what is the “test for prima facieinterference with an existing aboriginal right, and for the justification of such an interference... The first question to be asked is whetherthe legislation in question has the effect of interfering with an existing aboriginal right.

If it does have such an effect, it represents aprima facie infringement of section 35(1).” (paras. 67-68)[16] [54] The Province argues defects in the pleadings include: 1. the members of the Class do not sufficiently plead the Powley factors a. That aboriginal and treaty rights are contextual and site-specific b. they do not identify the historic

section 35 rights bearing community c. they do not identify the modern

section 35 rights bearing community with which each has “continuity with the historiccommunity” 2. the members of the class do not sufficiently plead material facts regarding: a. support for their self identification as Mi’Kmaw; and

b. “a real link” to the historic rights bearing community; c. which support their claim of acceptance as Mi’Kmaw (“core of community acceptance is past and ongoing participation in a shared culture, in the customs and traditions that constituted the community’s identity… Need for an objective demonstration of a solid bond of past and present mutual identification and recognition”) by the modern

section 35 rights bearing community; [17] d. the practices that were integral to their distinctive culture, including establishing continuity thereof between the historic and contemporary rights bearing community. [ 55 ] As noted earlier, the Province does not dispute that Indian Act Band members/ Status Indians in Nova Scotia have

section 35 rights. Mr. Cooper is a Status Indian, but because he is not associated with a Band, he is on the Atlantic General List of Indians – he is not entitled to exercise

section 35 rights to hunt. [ 56 ] The central issue is whether the Plaintiffs have pleaded sufficient facts to establish that they too are part of the aboriginal community, (both historic and present), such that, they have

section 35 rights. [ 57 ] To the extent that the Plaintiffs rely thereon, they have pleaded the three Powley factors (self identification, ancestral connection, and community acceptance). [18] [ 58 ] Three of the plaintiffs (save Mr. Joyce) has expressly pleaded such. Three have also identified an ancestral community by way of geographic location (i.e. Cooper -Shubenacadie/Gold River/New Germany; Langley -Shubenacadie/New Germany and Sable River; Langille -Wycomocagh, Cape Breton. Mr. Joyce pleads he is “a direct descendent of Jean Baptiste Cope, a Mi’kmaw signatory to the 1752 Treaty”, and as his heir he is entitled to exercise

section 35 rights. Though he is not a Status Indian as Mr. Simon was, and does not identify from which geographically located Mi’kmaw community his family hails, the relevant jurisprudence could arguably be in his favour, hence Mr. Joyce could be considered as Mi’kmaw for present purposes (see paras. 39-41 of the Statement of Claim). [ 59 ] Yes, inter alia , the jurisprudence has found that: aboriginal and treaty rights are communal rights; there must be a link between the modern and historic

section 35 rights bearing community, and the claimants must plead that they have exercised these

section 35 rights

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