Court File No. 35945
IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE FEDERAL COURT OF APPEAL)
BETWEEN: HARRY DANIELS, GABRIEL DANIELS, LEAH GARDNER, TERRY JOUDREY and THE CONGRESS OF ABORIGINAL PEOPLES
Appellants (Respondents) - and-
HER MAJESTY THE QUEEN as represented by THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT and THE ATTORNEY GENERAL OF CANADA Respondents (Appellants) - and-
ATTORNEY GENERAL OF SASKATCHEWAN, ATTORNEY GENERAL OF ALBERTA, NATIVE COUNCIL OF NOVA SCOTIA, NEW BRUNSWICK ABORIGINAL PEOPLES COUNCIL AND NATIVE COUNCIL OF PRINCE EDWARD ISLAND, METIS SETTLEMENTS GENERAL COUNCIL, TE'MEXW TREATY ASSOCIATION, METIS FEDERATION OF CANADA, ASENIWUCHE WINEWAK NATION, CHIEFS OF ONTARIO, GIFT LAKE METIS SETTLEMENT, NATIVE ALLIANCE OF QUEBEC, ASSEMBLY OF FIRST NATIONS, METIS NATIONAL COUNCIL Interveners
FACTUM OF THE INTERVENER, CHIEFS OF ONTARIO
Nahwegahbow, Corbiere Genoodmagejig Gowling Lafleur Henderson LLP 5884 Rama Road, Suite 109 160 Elgin Street, Suite 2600 Rama, Ontario L3V 6H6 Ottawa, ON KIP 1C3
David C. Nahwegahbow Guy Regimbald Tel: (705) 325-0520 Fax: (705) 325-7204 Tel: (613) 786-0197 Email: [email protected] Fax: (613) 563-9869 Email: [email protected]
Counsel for the Intervener, Chiefs of Agent for the Intervener, Ontario Chiefs of Ontario TO: Joseph E. Magnet Gowling Lafleur Henderson LLP University of Ottawa, Faculty of Law 160 Elgin Street, Suite 2600 75 Laurier Avenue East Ottawa, ON KIP 1C3 Ottawa, ON KIN 6N5 Brian A. Crane, Q.C. Tel: (613) 562-5800 ext. 3315 Tel: (613) 786-0107 Fax: (613) 562-5124 Fax: (613) 563-9869 Email: [email protected] Email: [email protected]
Paliare Roland Rosenberg Rothstein LLP Agent for the Appellants 155 Wellington Street West, 35th Floor Toronto, ON M5V 3R1
Andrew K. Lokan Lindsay Scott Tel: (416) 646-4300 Fax: (416) 646-4301 Email: [email protected] [email protected]
Counsel for the Appellants
Department of Justice Canada Civil Litigation Section, Ste. 500 50 O'Connor St. Ottawa, ON KIA OR8
Christopher Rupar Tel: (613) 670-6290 Fax: (613) 954-1920 Email: [email protected]
Department of Justice Canada Aboriginal Law Section 300, 10423 - 101 Street Edmonton, AB T5R OE7
Shauna Bedingfield Email: [email protected]
Counsel for the Respondents Attorney General of Alberta Gowling Lafleur Henderson LLP 10th Floor, 10025-102A Avenue 160 Elgin Street, Suite 2600 Edmonton, AB T5J 2Z2 Ottawa, ON KIP le3
Angela Edgington D. Lynne Watt Neil Dobson Tel: (613) 786-8695 Tel: (780) 427-1482 Fax: (613) 788-3509 Fax: (480) 643-0852 Email: [email protected] Email: [email protected]
Counsel for the Intervener, Agent for the Intervener, Attorney The Attorney General of Alberta General of Alberta
WittenLLP Supreme Advocacy LLP 2500, 10303 Jasper Ave. 100 - 340 Gilmour Street Edmonton, AB T5J 3N6 Ottawa, ON K2P OR3
Garry Appelt Marie-France Major Keltie Lambert Tel: (613) 395-8855 ext. 102 Tel: (780) 428-0501 Fax: (613) 695-8580 Fax: (780 429-2559 Email: [email protected]
Counsel for the Intervener, Agent for the Intervener, Metis Metis Settlements General Council Settlements General Council
Gowling Lafleur Henderson LLP Gowling Lafleur Henderson LLP 2600-160 Elgin Street 160 Elgin Street, Suite 2600 P.O. Box 466, Station D Ottawa, ON KIP le3 Ottawa, ON KIP le3
MaximeFaille Guy Regimbald Paul Seaman Tel: (613) 786-0197 Tel: (613)233-1781 Fax: (613) 563-9869 Fax: (613) 563-9869 Email: [email protected] Email: [email protected]
Counsel for the Intervener, Gift Lake Agent for the Intervener, Gift Lake Metis Settlement Metis Settlement Metis National Council Power Law 340 MacLaren, Unit 4 1103 - 130 Albert Street Ottawa, ON K2P OM6 Ottawa, ON KIP 5G4
Clement Chartier, Q.C. Fran~ois Laroque Marc Leclair Tel: (613) 702-5560 Kathy L. Hodgson-Smith Fax: (888) 404-2227 Tel: (613) 232-3216 Email: [email protected] Fax: (613) 232-4262
Counsel for the Intervener, Metis Agent for the Intervener, Metis National Council National Council
Pape Salter TeiHet Gowling Lafleur Henderson LLP 546 Euclid Avenue 160 Elgin Street, Suite 2600 Toronto, ON M6G 2T2 Ottawa, ON KIP lC3
Jason Madden Jeffrey W. Beedell Tel: (416) 916-2989 Tel: (613) 786-0171 Fax: (416) 916-3726 Fax: (613) 788-3587 Email: [email protected] Email: [email protected]
Counsel for the Intervener, Manitoba Agent for the Intervener, Manitoba Metis Federation Metis Federation
Pape Salter TeiUet Gowling Lafleur Henderson LLP 460-220 Cambie Street 160 Elgin Street, Suite 2600 Vancouver, BC N6B 2M9 Ottawa, ON KIP lC3
Jean M. TeiUet Jeffrey W. BeedeU Tel: (604) 681-3002 Tel: (613) 786-0171 Fax: (604) 681-3050 Fax: (613) 788-3587 Email: [email protected] Email: [email protected]
Counsel for the Intervener, Metis Nation Agent for the Intervener, Metis Nation of Ontario of Ontario Burchell Hayman Parish Gowling Lafleur Henderson LLP 1801 Hollis Street, Suite 1800 160 Elgin Street, Suite 2600 Halifax, NS B3J 3N4 Ottawa, ON KIP le3
D. Bruce Clarke Jeffrey W. Beedell Tel: (902) 423-6361 Tel: (613) 786-0171 Fax: (902) 420-9326 Fax: (613) 788-3587 Email: [email protected] Email: [email protected]
Counsel for the Intervener, Native Agent for the Intervener, Native Council of N ova Scotia, New Brunswick Council of Nova Scotia, New Brunswick Aboriginal Peoples Council and Native Aboriginal Peoples Council and Native Council of Prince Edward Island Council of Prince Edward Island
Hajduk Gibbs LLP Michael J. Sobkin 202 Platinum Place 331 Somerset Street West 10120 118 St. N.W. Ottawa, ON K2P OJ8 Edmonton, AB T5K 1Y 4 Tel: (613) 282-1712 Richard B. Hajduk Fax: (613) 288-2896 Rodger C. Gibbs Email: [email protected] Tel: (780) 428-4258 Fax: (780) 425-9439 Email: [email protected]
Counsel for the Intervener, Peavine Metis Agent for Intervener, Peavine Metis Settlement, East Prarie Metis Settlement, Settlement, East Prarie Metis Elizabeth Metis Settlement and Paddle Settlement, Elizabeth Metis Settlement Prairie Metis Settlement and Paddle Prairie Metis Settlement
Janes Freedman Kyle Law Corporation Gowling Lafleur Henderson LLP 816-1175 Douglas Street 160 Elgin Street, Suite 2600 Victoria, Be V8W 2E1 Ottawa, ON KIP le3
Robert J.M. Janes Guy Regimbald Tel: (250) 405-3460 Tel: (613) 786-0197 Fax: (250) 381-8567 Fax: (613) 563-9869 Email: [email protected] Email: [email protected]
Counsel for the Intervener, Te'mexw Treaty Association Agent for the Intervener, Te'mexw Treaty Association Devlin Gailus Westaway Devlin Gailus Westaway 2nd Floor, 736 Broughton Street Suite 230, 55 Murray Street Victoria, Be V8W lEI OttawaON KIN 5M3
Christopher G. Devlin Cynthia Westaway Tel: (250) 361-9469 Tel: (613) 722-6339 Fax: (250) 361-9429 Fax: (613) 722-9097 Email: [email protected] Email: [email protected]
Counsel for the Intervener, Metis Agent for the Intervener, Metis Federation of Canada Federation of Canada
Janes Freedman Kyle Law Corporation Gowling Lafleur Henderson LLP 340-1122 Mainland Street 160 Elgin Street, Suite 2600 Vancouver, Be V6B 5Ll Ottawa, ON KIP le3
Karey Brooks Guy Regimbald Tel: (604) 687-0549 Tel: (613) 786-0197 Fax: (604) 687-2696 Fax: (613) 563-9869 Email: [email protected] Email: [email protected]
Counsel for the Intervener, Aseniwuche Agent for the Intervener, Aseniwuche Winewak Nation Winewak Nation
Gowling Lafleur Henderson LLP 160 Elgin Street, Suite 2600 Ottawa, ON KIP le3
Guy Regimbald Jaimie Lickers Tel: (613) 786-0197 Fax: (613) 563-9869 Email: [email protected]
Counsel for the Intervener, Assembly of First Nations PART I - STATEMENT OF FACTS RELEVANT TO THE ISSUE TO INTERVENE
A. Overview of Position 1. Chiefs of Ontario ("COO"), representing First Nations in Ontario who are successors to the nation-to-nation relationship forged at the Treaty of Niagara in 1764, urge this Court to adopt an interpretation of s. 91(24), which renews this relationship. Aboriginal peoples, whether First Nation, Inuit or Metis, are partners in Confederation and possess a unique political relationship with the Crown. From the First Nation perspective, the legislative authority over "Indians" as set out in s. 91 (24) Constitution Act, 18671 has been used to attempt to dismember First Nations as "peoples", and to erode this founding relationship. The imposition of a race based definition of "Indians" in the Indian Act, assimilation policies and Indian Residential Schools, has resulted in social, cultural and economic devastation in First Nation communities.
2. In order to correct this historical injustice s. 91(24) should be interpreted in a manner which gives a generous meaning to the word 'peoples' as set out in s. 35(1) Constitution Act, 19822. This includes incorporating principles of honour, consultation, consent, reconciliation, and an acknowledgment of the continuing nation-to-nation relationship between Aboriginal peoples and the federal Crown.
B. Statement of Facts 3. COO take no position with respect to the facts.
PART II - STATEMENT OF POSITION WITH RESPECT TO APPELLANTS' QUESTIONS
4. The issue before the Court is whether the term "Indians" in s. 91(24) of the Constitution Act, 1867 includes Metis and non-status Indians. However, COO wish to recast the issue in terms of the appropriate analytical framework for determining constitutional jurisdiction in s. 91(24), which COO submits must now include s.35 of the Constitution Act, 1982 and the principle of reconciliation.
1 Constitution Act, 1867 (UK), 30 & 31 Vict., c. 3, s. 91(24), reprinted in RSC 1985, App. II, No.5. 2 Constitution Act, 1982, s. 35(1), being Schedule B to the Canada Act 1982 (UK), 1982, c. 11. ["Constitution Ad'] 2
PART Ill- STATEMENT OF ARGUMENT
A. Unfettered Exercise of Federal Authority under Section 91(24) has Resulted in Assimilationist Policies
5. Section 91(24) of the Constitution Act, 1867 provides authority to Parliament to legislate "in relation" to "Indians, and Lands reserved for the Indians". The unfettered exercise of this authority has given rise to various pieces of legislation the most notorious 3 of which is the Indian Act -- legislation that governs virtually every aspect of First Nations, including defining who is an "Indian,,4. As noted by the Royal Commission on Aboriginal Peoples, Crown officials have acknowledged the Indian Act's limitations5 as a framework for relations with First Nations who themselves consider the legislation as inherently paternalistic and oppressive. 6
6. Section 91(24) has been fatally interpreted as granting authority to make race-based classifications regarding Indians, 7 rather than legislating "in relation" to Indians as "peoples",8 with pre-existing rights of self-determination. This unilateral interpretation of the term "Indians" in the Indian Act has led to the development of assimilationist policies and programs including Indian Residential Schools, which were intended to, "continue until there is not a single Indian in Canada that has not been absorbed into the body politic.,,9 The results for Canada and First Nations peoples in particular have been devastating 10 and
3 Indian Act, RSC, 1985, c. 1-5. ["Indian Act"] 4 Indian Act, s. 2 "Indian". 5 Canada. Royal Commission on Aboriginal Peoples. Report of the Royal Commission onAboriginal Peoples, Vol. I: Looking Forward, Looking Back (Ottawa, ON: Minister of Supply and Services Canada, 1996), Part Two: False Assumptions and a Failed Relationship, Chp. 9: The Indian Act at pg. 319. 6 R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433 at para. 60. 7 Attorney General ofCanada, et al v. Canard, [1976] 1 S.c.R. 170 at p. 207. ["Canard'] 8 Canada. Parliament. House of Commons. Special Committee on Indian Self-Government. Indian Self Government in Canada (Ottawa: Published under authority of the Speaker of the House of Commons by the Queen's Printer for Canada, 1983) ["Penner Report"], supported recognition ofIndian self-govermnent and a mechanism for recognition. 9 Duncan Campbell Scott, Testimony before the Special Committee ofthe House of Commons examining the Indian Act amendments of 1920, quoted in John Leslie, Historical Development ofthe Indian Act, 2d ed. (Ottawa: Department ofIndian Affairs and Northern Development, Treaties and Historical Research Branch, 1978) at pg. 114. 10 Calder et al v. Attorney-General of British Columbia, [1973] S.C.R. 313 at p. 346. ["Calder"] See also, Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconcilingfor the Future: Summary ofthe Final Report ofthe Truth and Reconciliation Commission of Canada (Winnipeg: Truth and Reconciliation Commission of Canada, 2015) at pg. 183: "The legacy of residential schools] is reflected in the intense racism some people harbour against Aboriginal people and in the systemic and other forms of discrimination Aboriginal people 3
as observed by The Truth and Reconciliation Commission's Summary Report, "may be
perpetuated and even worsened as a result of current governmental policies." 1 1 B. Section 91(24) Power must now be Reconciled with Section 35: Meaning and Scope of the Terms "Indians" and "Peoples"
7. This Court is being asked to define the scope of the tenn "Indians" in 91(24)Y We submit that this requires consideration of s. 35 of the Constitution Act, 1982. As this Court stated in Sparrow:
Federal legislative powers continue, including, of course, the right to legislate with respect to Indians pursuant to s. 91(24) of the Constitution Act, 1867. These powers must, however, now be read together with s. 35(1). In other words, federal power must be reconciled with federal duty and the best way to achieve that reconciliation is to demand the justification of any government regulation that infringes upon or denies aboriginal rights. 13
COO submit that this aspect of the principle of reconciliation is more broadly applicable to the exercise of federal powers under s. 91(24) (as well as provincial powers), not just aboriginal hunting and fishing rights.
8. The scope of s. 91(24) also requires consideration of the broad constitutional interpretative principles that apply to Canada's constitution more generally, and s. 91(24) in particular. 14 As this Court wrote in R. v. Van der Peet: "Because of this fiduciary relationship, and its implication of the honour of the Crown, treaties, s. 35(1) , and other· statutory and constitutional provisions protecting the interests of aboriginal peoples, must be given a generous and liberal interpretation: R. v. George, [1966] S.C.R. 267, at p. 279.,,15
regularly experience in this country." 11 Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconcilingfor the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada (Winnipeg: Truth and Reconciliation Commission of Canada, 2015) atp. 185. 12 R. v. Blais, 2003 SCC 44, [2003] 2 S.C.R 236 at para. 36. The Courts, to date, have not addressed the limits of the federal government's jurisdiction over "Indians" and "Lands Reserved for Indians" and therefore the scope of s. 91(24) is relatively unknown. The Supreme Court recognized this in Delgamuukw v. British Columbia, [1997] 3 S.C.R 1010 at p. 1118 where the Court stated "The extent offederal jurisdiction over Indians has not been definitively addressed by this Court" ["Delgamuukw"], 13 R. v. Sparrow, [1990] 1 S.C.R 1075 atp. 1109. ["Sparrow"] 14 Manitoba Metis Federation Inc. v. Canada (Attorney Genera!), [2013] 1 S.C.R 623 at para 77: " ... honour of the Crown demands that constitutional obligations to Aboriginal peoples be given a broad, purposive interpretation." ["MMF'] 15 R. v. Van der Peet, [1996] 2 S.C.R 507 at p. 536-537. ["Van der Peer] 4
9. Section 91 (24) of the Constitution Act 1867, should be interpreted in manner which is in harmony with a purposive interpretation16 of the word "peoples" in s. 35(1) of the Constitution Act, 1982. That subsection provides that, "[t]he existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed". And s. 35(2) defines "aboriginal peoples of Canada" to include "the Indian, Inuit and Metis peoples of Canada"Y "Peoples" has a distinctive meaning under s. 35, not as an individuated race based concept,18 but as a category which denotes political collectives who are "partners in confederation" according to the Royal Commission on Aboriginal 19 Peoples. Indeed, modern jurisprudence also supports the approach of defining the term "Indians" in a manner consistent with the concept of "peoples", because the jurisprudential foundations of Aboriginal and treaty rights acknowledge the collective nature of those rights and their source in pre-existing organized societies and their legal traditions.2o
10. "Indians", as "Aboriginal peoples", whether they are First Nation, Inuit or Metis peoples, must be regarded as political collectivities. As the Supreme Court wrote in R. v. Powley: "The term "Metis" 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. 21 Likewise, "Indians" under s. 35(1) should not be constitutionally categorized by ethnicity but by their collective political existence, despite past race-based interpretations of s. 91(24). In this respect Aboriginal peoples under sections 91(24) and 35(1) should be regarded as part of the growth of Canada's living tree. 22
16 Sparrow, p. 1106. 17 Constitution Act, s. 35(2). 18 Canada (Indian Affairs) v. Daniels, 2014 FCA 101 at para. 94-95; MMF, para. 77; R. v. Sioui, [1990] 1 S.C.R. 1025 at p. 1038 ["Siout']; R. v. Powley, 2003 SCC 43, [2003] 2 S.C.R. 207 at para. 11 ["Powley"]. 19 Canada. Royal Commission on Aboriginal Peoples. Partners in Confederation: aboriginal peoples, self government and the Constitution (Ottawa, ON: Royal Commission on Aboriginal Peoples, 1993). 20 Van der Peet, p. 546-547; Delgamuukw, p. 1082-1083; Tsilhqot'in Nation v. British Columbia, 2014 SCC 44, [2014] 2 S.C.R. 256 at para. 74-75 ["Tsilhqot'in"]; Behn v. Moulton Contracting Ltd., 2013 SCC 26, [2013] 2 S.c.R. 227 at para. 30; Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53, [2010] 3 S.C.R. 103 at para. 35. 21 Powley, para. 10. 22 John Borrows, "(Ab )Originalism and Canada's Constitution" (2012) 58 S.C.L.R. (2d) 351 at pg. 352. 5
11. The Constitution as a living tree must accommodate the realities of contemporary Canadian life,23 particularly so when interpreting the heads of power enumerated in sections 91 and 92 of the Constitution Act, 1867.24 Professor Borrows has written that, "Originalism's place in Canadian constitutional law is incongruous.,,25 Originalism contrasts with the living tree analogy which, "has become the dominant form of analysis in determining the Constitution's meaning ... [because] this approach allows the Court to look beyond historical understandings of a provision and give it meaning in the light of contemporary circumstances.,,26
12. COO urges this Court to reject "originalist" race-based categorizations of "Indians" and "Aboriginal peoples" as being inconsistent with Canada's Constitution. As Professor Borrows has noted in Canada's Indigenous Constitution,27 the view finds support in the Report of the Royal Commission on Aboriginal Peoples: Aboriginal peoples are not racial groups; they are organic political and cultural entities. Although contemporary Aboriginal peoples stem historically from the original peoples of North America, they often have mixed genetic heritages and include individuals of varied ancestries. As organic political entities, they have the capacity to evolve over time and change in their internal composition .... Only when Aboriginal peoples are viewed, not as "races" within the boundaries of a legitimate state, but as distinct political communities with recognizable claims for collective rights, will there be a first and meaningful step towards responding to Aboriginal peoples' challenge to achieve self-government, citing Royal Commission on Aboriginal Peoples, Restructuring the Relationship, Vol. 2 (Ottawa: Supply and Services, 1996), Chapter 3, pg. 166.
c. "Indians" as "Peoples": Renewal ofthe Nation-to-Nation Relationship
13. COO submits that s. 91(24) should not be interpreted in a race-based manner, which was characteristic of colonial and post-colonial assimilationist context. It must be viewed in light of the renewed nation-to-nation relationship between the Crown and
23 Reference re Same-Sex Marriage, 2004 SCC 79, [2004] 3 S.C.R. 698 at para. 22. ["Same-Sex Marriage"] 24 Same-Sex Marriage, para. 22. 25 John Borrows, "(Ab)Originaiism and Canada's Constitution", pg. 359. 26 John Borrows, "(Ab)Originaiism and Canada's Constitution", pg. 354-355, see also, Same-Sex Marriage, para. 22, 30; Reference re Meaning of Word "Persons" in Section 24 ofthe British North America Act, 1867, [1928] S.C.R. 276, [1928] 4 D.L.R. 98, rev'd [1930] A.C. 124, [1930] 1 D.L.R. 98, [1929] 3 W.W.R. 479, sub nom. Edwards, et al v. AG Can, et al., at para. 44; Sparrow, p. 1106. 27 John Borrows, Canada's Indigenous Constitution (Toronto: University of Toronto Press, 2010) at pg. 157- 158. 6
Aboriginal peoples, in a manner which engages both the honour of the Crown and the 28 principles of reconciliation. For First Nations peoples in what is now Ontario, this nation-to-nation relationship with the Crown was given its greatest expression, in what the Ontario Court of Appeal in the Chippewas of Sarnia case, called a "watershed event" at the Treaty of Niagara in 1764. The relationship is depicted by wampum belts where British and Native peoples linked arms together in peace, friendship and respect. 29 These agreements were formed by and with "peoples". This relationship continues today and should inform the meaning ofs. 91(24).
14. Self-determination is fundamental to "peoples" because it enables them to determine group membership and create rules "in relation" to federal power under sections 91(24) and 35 of Canada's Constitution, just as the federal Crown can legislate 'in relation' to "Indians" under section 91(24), in a manner grounded by the principles of reconciliation. 30
15. As the Supreme Court observed in R. v. Sioui: "Indian nations were regarded in their relations with the European nations which occupied North America as independent nations.,,31 While treaties and Confederation bound Indians and the Crown together in an interdependent relationship,32 Aboriginal peoples continue to possess the ability to make 33 political (not race-based ) decisions concerning their composition as collectivities, as an
28 Chippewas ofSarnia Bandv. Canada (Attorney General), 51 OR (3d) 641, [2000] OJ. No. 4804 at para. 56 ["Chippewas"]; see also, John Borrows, Recovering Canada: The Resurgence ofIndigenous Law (Toronto: University of Toronto Press, 2002) at pg. 125: [T]he joint participation and consent of the Crown and Aboriginal peoples at the Treaty of Niagara created a pattern to follow in constituting their relations based upon principles that included the recognition of Aboriginal governance, land holdings, open migration, free trade military assistance and peace and friendship. 29 Chippewas, para. 48-65; John Borrows, "Constitutional Law from a First Nation Perspective: Self Government and the Royal Proclamation" (1994) 28 u.B.C. L. Rev. 1-47; Alan Ojiig Corbiere, "Their own forms of which they take the most notice: Diplomatic metaphors and symbolism on wampum belts", Anishinaabewin Niiwin, Four Winds Rising (M'Chigeeng: Ojibwe Cultural Foundation, 2014) at 47-64. 30 Royal Proclamation, 1763, R.S.C. 1985, App.II, No.1; Chippewas, para. 56; United Nations Declaration on the Rights ofIndigenous Peoples, GARes. 61/295 (Annex), UN GAOR, 61st Sess., Supp. No. 49, Vol. III, UN Doc. Al61149 (2008) 15, Art. 3. ["UNDRIP"]; see also, John Borrows, "Wampum at Niagara: The Royal Proclamation, Canadian Legal History, and Self-Government", in Aboriginal and Treaty Rights in Canada, ed. Michael Asch (Vancouver: UBC Press, 1997), Chp. 6. 31 Sioui, p. 1053. 32 John Borrows, Recovering Canada: The Resurgence ofIndigenous Law (Toronto: University of Toronto Press, 2002) at pgs. 148-153. 33 Indigenous powers of self-determination should be regarded as political and not racial classifications, see Morton v. Mancari, 417 U.S. 535 (1974) at pp. 536, 541-542, 550, 553-554. 7 exercise of self-government within a larger constitutional structure. 34
16. The process for recognizing "Aboriginal peoples" as part of s. 91(24) should be based on a view which is reflective of both the Crown and Aboriginal peoples own perspectives and is in keeping with the principles of international law. 35 Casting "Indians" as a race-based concept36 is a wholesale disregard of historical realities and the unique political relationship that exists between the Crown and Aboriginal peoples. 37
17. Moreover, the interpretation of the term "Indians" in s.91(24) must include acknowledgement ofthe importance of the Aboriginal perspective:
From the Aboriginal perspective, the federal-provincial divisions that the Crown has imposed on itself are internal to itself and do not alter the basic structure of sovereign-Indian relations which is premised on a nation-to-nation relationship.38
As the Supreme Court wrote in R. v. Sparrow: " ... it is crucial to be sensitive to the aboriginal perspective itself on the meaning of the rights at stake.,,39
18. Regardless of composition, Aboriginal peoples are constitutional entities with political autonomy in regard to their membership.40 Therefore, we submit the term "Indian" cannot be unilaterally defined by the federal Crown; and the legislative authority in s. 91 (24) "in relation" to "Indians,,41 must be exercised with respect to the constitutional prmclp. . 1es 0 f h onour, 42 consuI' tatlOn 43 ,consent, 44 reconcl'1" mtlOn, 45 an d t h e h'lstonca . I an d contemporary nature of the nation-to-nation relationship.
34 Brian Slattery, "First Nations and the Constitution: A Question ofTrnst" (1992) Canadian Bar Review, Vol. 71, p. 279 ["Slattery"] citing Calder, p. 548-549 at footnote 63 (Emphasis supplied by Lamer J.) "such was the policy of Great Britain towards the Indian nations inhabiting the territory from which she excluded all other Europeans; such her claims, and such her practical exposition ofthe charters she had granted: she considered them as nations capable of maintaining the relations of peace and war; of governing themselves, under her protection; and she made treaties with them, the obligation of which she acknowledged." 35 UNDRIP, Art. 3 and Art. 18; Reference re Secession of Quebec, [1998] 2 S.C.R. 217 at para. 234-235. 36 Canard, p. 207. 37 Mitchell v. Peguis Indian Band, [1990] 2 S.C.R. 85 at pg. 108. 38 Campbell et al v. AG BClAG Cda & Nisga 'a Nation et al, 2000 BCSC 1123, 189 D.L.R. (4th) 333, [2000] 8 W.W.R. 601, 79 B.C.L.R. (3d) 122, [2000] 4 C.N.L.R. 1 at para. 81. 39 Sparrow, p. 1078. 40 Slattery, p. 273. 41 Guerin v. The Queen, [1984] 2 S.C.R. 335 at p. 350-351. 42 MMF, para. 128. 43 Haida Nation v. British Columbia (Minister ofForests) , 2004 SCC 73, [2004] 3 S.c.R. 511 at para. 16-25. 44; Tsilhqot'in, para. 76,88,90 and 97. 45 Mikisew Cree First Nation v. Canada (Minister ofCanadian Heritage), [2005] 3 S.c.R. 388 at para. 1. 8
19. COO submit that the appropriate analytical framework for determining constitutional jurisdiction in s. 91(24), must give meaning to the words "recognized and affirmed" as it relates to the expression "peoples", in s. 35. Aboriginal peoples, whether First Nation, Inuit or Metis, possess group rights including the capacity to define their own membership in a manner consistent with Canada's constitutional framework. 46 Canada's legislative authority "in relation" to "Indians" must be exercised in a manner consistent with section 35(1) of the Constitution Act, 1982. This check on legislative power also provides an element of choice in the hands of Aboriginal "peoples", to decide depending on the pattern of their historical dealings, whether they want to establish or maintain relations with the federal Crown, as First Nations have done, or with the provincial Crown, as the Metis settlements in Alberta have done. 47
D. International Law Principles and US Law Shou.ld Inform the Analytical Framework to Interpret s. 91(24), Constitution Act, 1867
20. "Peoples" has meaning in international law. Section 35(1) was drafted with this meaning as a backdrop to the domestic implementation of Canada's international obligations. Canada recognizes its international legal obligations as being relevant and persuasive as a source of law for the purpose of interpreting domestic statutes and may assist the Court in the contextual approach to interpreting s. 91(24) for the purposes of this
Appeal. 48
21. The meaning of the word "peoples" within section 35(1) should therefore take guidance from its meaning in international law. 49
22. The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)
46 UNDRIP, Art. 3 and Art. 18; Alberta (Aboriginal Affairs and Northern Development) v. Cunningham, 2011 SCC 37, [2011] 2 S.C.R. 670 at para. 13,54,66-70, and 75-76. 47 Alberta (Aboriginal Affairs and Northern Development) v. Cunningham, 2011 SCC 37, [2011] 2 S.C.R. 670. 48 Baker v. Canada (Minister o/Citizenship and Immigration), [1999] 2 S.C.R. 817 at p. 860-862. ["Baker"] 49 Catherine Bell, "Metis Constitutional Rights in Section 35(1)" (1997) 36 Alta. L. Rev. 180, pg. 5, "Rights arising from peoplehood are uncertain because the word "peoples" is not defined in Canadian constitutional law and minimal domestic judicial opinion has been rendered on this point. However, it is a term which was used frequently in international political discourse at the time s.35 was negotiated to distinguish colonized indigenous populations from nation states and ethnic minority immigrant populations within those states." 9 also provides guidance in relation to the meaning of the word peoples. 50 When interpreting Canadian law, Parliament is presumed to act in compliance with its international obligations51 and to respect the values and principles enshrined in international law through the presumption of conformity. 52 Therefore, international instruments such as UNDRIP, while not binding, should inform the contextual approach to statutory interpretation. 53 We respectfully submit that s. 91(24) must be interpreted in a manner reflecting UNDRIP's values and principles, 54 and therefore ultimately assist in promoting reconciliation between the federal Crown and Aboriginal peoples.
23. The United States of America also offers persuasive jurisprudence55 on interpreting statutes, agreements and historical developments to define its own relationship with Aboriginal peoples. Professor Kent McNeil concludes, "that the same general principles underlie Aboriginal law in both countries.,,56 This extends to the underlying principle of self-detennination and addressing the impact of European colonization upon pre-existing Aboriginal sovereignty.
24. The distinct political status of Native American governments and the political relationship with the federal government is, according to Professor Matthew Fletcher, the basis for a new and dynamic relationship between States and Indian tribes that reconciles and smooths, "over the rough edges of federal Indian law".57 Moreover, this Court has previously adopted and relied on United States jurisprudence to interpret the unique
50 The UNDRIP reflects customary international law and emerging norms in international law regarding the rights of Aboriginal peoples. Articles 3, 4 and 5 ofUNDRIP are principles to be incorporated in the contextual interpretation of s. 91(24). 51 R. v. Sharpe, [2001] 1 S.C.R. 45 at para. 175 ["Sharpe"] citing R. Sullivan, Driedger on the Construction of Statutes (3 rd Ed. 1994) at p. 330 where the Court stated, " ... the legislature is presumed to respect the values and principles enshrined in international law, both customary and conventional. These constitute a part of the legal context in which legislation is enacted and read. In so far as possible, therefore, interpretations that reflect these values and principles are preferred." 52 R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292 at para. 54. ["Hape"] 53 Baker, para. 860-862. 54 Hape, para. 53-54; Baker, para. 860-862; Sharpe, para. 175. 55 See, Morton v. Mancari, 417 U.S. 535 (1974) at pp. 553-554. 56 Kent McNeil, "Judicial Approaches to Self-Government Since Calder: Searching for Doctrinal Coherence" (2007), in Hamar Foster, et aI, Let Right Be Done: Aboriginal Title, the Calder Case and the Future ofIndigenous Rights (Vancouver: UBC Press, 2007) at pg. 152. 57 Matthew Fletcher, "The Original Understanding of the Political Status ofIndian Tribes", St. Jo1m's Law Review, 2008, Vol. 82:153 atp. 181. 10 relationship that exists between the Crown and Aboriginal peoples. 58
25. It is respectfully submitted that the shared history - particularly relating to Aboriginal peoples - between Canada and the United States provides this Court with insight to assist with interpreting s. 91(24) in a manner that recognizes the continuing historical record between Aboriginals and the federal Crown.
PART IV - COST SUBMISSIONS
26. COO do not seek costs and ask that it not be subject to any costs orders.
PART V - NATURE OF THE ORDER SOUGHT
27. COO seeks an order that it be granted leave to present oral argument of ten (10) minutes on the hearing of this appeal.
ALL OF WHICH IS RESPECTFULLY SUBMITTED.
Dated: July 27,2015
David C. Nahwegahbow, IPC, LSM Counsel for the Intervener. Chiefs of Ontario
GuyRe' bal Agent (& the tervener Chiefs of Ontario
58 Calder, p. 383, Hall J. adopted the view of Chief Justice Marshall of the United States Supreme Court in Worcester v. State a/Georgia (1832),6 Peters 515, pp. 542-543: "America, separated from Europe by a wide ocean, was inhabited by a distinct people, divided into separate nations, independent of each other and of the rest of the world, having institutions of their own, and governing themselves by their own laws." See also, Sioui, p. 1054. 11
PART VI-TABLE OF AUTHORITIES
...... 1\. PrimarySonrces .··.c-- ...... -'......
547 Reference re Meaning of Word "Persons" in Section 24 of the British North America Act, 1867, [1928] S.C.R. 276, [1928] 4 D.L.R. 98, rev'd [1930] A.C. 124, [1930] para. 44 11 1 D.L.R. 98, [1929] 3 W.W.R. 479, sub nom. Edwards, et al v. AG Can, et al Reference re Same-Sex Marriage, 2004 SCC 79, [2004] para. 22, 30 11 3 S.C.R. 698 Reference re Secession of Quebec, [1998] 2 S.C.R. 217 p.234-235 16 Tsilhqot'in Nation v. British Columbia, 2014 SCC 44, para. 74-75, 76, 9, 18 [2014] 2 S.C.R. 256 88,90,97
B ." S d fry'S ". .. ·>.;<;i '...... •.... econ .a. . ouJ."ces .... ···•·· ,.' '> :ecce /.>,". . ',,< '.' ". ..:".' ..," : .... Source;,.' .·C •.•••••. x ..i;c.L>.'; ~-= ••••••.• ·PiIlpoin.te .)y~. PartlII • Alan Ojiig Corbiere, "Their own forms of which they take the most notice: Diplomatic metaphors and symbolism on wampum belts", Anishinaabewin NUwin, p.47-64 13 Four Winds Rising (M'Chigeeng: Ojibwe Cultural Foundation, 2014) Canada. Parliament. House of Commons. Special Committee on Indian Self-Government. Indian Self- Government in Canada (Ottawa: Published under 6 authority of the Speaker of the House of Commons by the Queen's Printer for Canada, 1983) ["Penner RepOlt"] Catherine Bell, "Metis Constitutional Rights in Section pgs.5 21 35(1)" (1997) 36 Alta. L. Rev. 180 pg. 352, 354-355, John Borrows, "(Ab)Originalism and Canada's 10, 11 Constitution" (2012) 58 S.C.L.R. (2d) 351 359 John Borrows, Canada's Indigenous Constitution Pg.157-158 12 (Toronto: University of Toronto Press, 2010) John Borrows, "Constitutional Law From a First Nation Perspective: Self-Government and the Royal 13 Proclamation" (1994) 28 UB.C. L. Rev. 1-47 John Borrows, Recovering Canada: The Resurgence of Indigenous Law (Toronto: University of Toronto Press, pg. 125, 148-153 13, 15 2002) John Borrows, "Wampum at Niagara: The Royal Proclamation, Canadian Legal History, and Self- Government", in Aboriginal and Treaty Rights in Chp.6 14 Canada, ed. Michael Asch (Vancouver: UBC Press, 1997) Matthew Fletcher, "The Original Understanding of the p. 181 24 Political Status of Indian Tribes", st. John's Law 13
Review, 2008, Vol. 82:153 Kent McNeil, "Judicial Approaches to Self-Government Since Calder: Searching for Doctrinal Coherence" (2007), in Hamar Foster, et aI, Let Right Be Done: p. 152 23 Aboriginal Title, the Calder Case and the Future of Indigenous Rights (Vancouver: UBC Press, 2007) Canada. Royal Commission on Aboriginal Peoples. Partners in Confederation: aboriginal peoples, self- government and the Constitution (Ottawa, ON: Royal 9 Commission on Aboriginal Peoples, 1993). Canada. Royal Commission on Aboriginal Peoples. Report of the Royal Commission on Aboriginal Peoples, pg.319 5 Vol. 1: Looking Forward, Looking Back (Ottawa, ON: Minister of Supply and Services Canada, 1996) John Leslie, et aI., Historical Development of the Indian Act, 2d Ed. (Ottawa: Department ofIndian Affairs and pg.114 6 Northern Development, Treaties and Historical Research Branch, 1978) Brian Slattery, "First Nations and the Constitution: A Question of Trust", Canadian Bar Review, 1992, Vol. p.273,277,279 15, 18 71 Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconcilingfor the Future: Summary of the Final Report ofthe Truth and pg. 183, 185 6 Reconciliation Commission of Canada (Winnipeg: Truth and Reconciliation Commission of Canada, 2015)
PART VII - STATUTORY PROVISIONS
Sf~t#t¢. artdR~guhltj9n ... : ····.sZI~"';;r<· ·.\t iPiiipoiPf'··· -, :c':=~ --.' .~artlIl •. 7' Constitution Act, 1867 (UK), 30 & 31 Vict., c. 3, 91(24) 1 reprinted in R.S.C. 1985, App. II, No.5. Constitution Act, 1982, being Schedule B to the s. 35, 35(1), 35(2) 2,9 Canada Act 1982 (UK), 1982, c. 11. Indian Act, R.S.C., 1985, c. 1-5 s. 2 "Indian" 5 Royal Proclamation, 1763, R.S.C. 1985, App. II, No.1 14
P ART VIII - INTERNATIONAL PROVISIONS
Part III United Nations Declaration on the Rights of 14, 16, Indigenous Peoples, GA Res. 611295, UN GAOR, 61 st 19,22 Sess., Sup. No. 49 Vol. III, UN Doc. A/61149 (2007)