Court File No. 35945

IN THE OF (ON FROM THE 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 , ATTORNEY GENERAL OF , NATIVE COUNCIL OF , ABORIGINAL PEOPLES COUNCIL AND NATIVE COUNCIL OF , METIS SETTLEMENTS GENERAL COUNCIL, TE'MEXW TREATY ASSOCIATION, METIS FEDERATION OF CANADA, ASENIWUCHE WINEWAK NATION, CHIEFS OF , GIFT LAKE METIS SETTLEMENT, NATIVE ALLIANCE OF , ASSEMBLY OF , METIS NATIONAL COUNCIL Interveners

FACTUM OF THE INTERVENER, THE ASSEMBLY OF FIRST NATIONS

Guy Regimbald Jaimie Lickers

Gowling Lafleur Henderson LLP 160 Elgin Street, Suite 2600 , ON KIP lC3 Tel: (613) 786-0197 Fax: (613) 563-9869 Email: [email protected]

Counsel for the Intervener, The Assembly of First Nations 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 lC3 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 , ON M5V 3H1

Andrew K. Lokan Lindsay Scott Tel: (416) 646-4300 Fax: (416) 646-4301 Email: [email protected] lindsay. [email protected]

Counsel for the Appellants

Department of Justice Canada Civil Litigation Section, Ste. 500 50 O'Connor st. Ottawa, ON KIA OH8

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 T5H 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 lC3

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 1C3 Ottawa, ON KIP lC3

MaximeFaiHe 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

Burchell Hayman Parish Gowling Lafleur Henderson LLP 1801 Hollis Street, Suite 1800 160 Elgin Street, Suite 2600 Halifax, NS B3J 3N4 Ottawa, ON KIP lC3

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 Nova 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

Janes Freedman Kyle Law Corporation Gowling Lafleur Henderson LLP 816-1175 Douglas Street 160 Elgin Street, Suite 2600 Victoria, BC V8W 2El Ottawa, ON Kl P 1C3

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, BC V8W lEI Ottawa ON 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 , BC V6B 5Ll Ottawa, ON KIP 1C3

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

Nahwegahbow, Corbiere Genoodmagejig Gowling Lafleur Henderson LLP 5884 Rama Road, Suite 109 160 Elgin Street, Suite 2600 Rama, Ontario L3V 6H6 Ottawa, ON KIP lC3

David C. Nahwegahbow Guy Regimbald Tel: (705) 325-0520 Tel: (613) 786-0197 Fax: (705) 325-7204 Fax: (613) 563-9869 Email: [email protected] Email: [email protected]

Counsel for the Intervener, Chiefs of Agent for the Intervener, Chiefs of Ontario Ontario Gagne, Letarte, S.E.N.C. Gowling Lafleur Henderson LLP 79, boul. Rene-Levesque Est 160 Elgin Street, Suite 2600 Bureau 400 Ottawa, ON KIP 1C3 Quebec, QC GIR 5N5

Marc Watters Guy Regimbald Tel: (418) 522-7900 Tel: (613) 786-0197 Fax: (418) 523-7900 Fax: (613) 563-9869 Email: [email protected] Email: [email protected]

Counsel for the Intervener, Native Agent for the Intervener, Native Alliance of Quebec Alliance of Quebec

Attorney General for Saskatchewan Gowling Lafleur Henderson LLP 820-1874 Scarth St. 160 Elgin Street, Suite 2600 Aboriginal Law Branch Ottawa, ON KIP 1C3 Regina, SK S4P 4B3 D. Lynne Watt P. Mitch McAdam, Q.C. Tel: (613) 786-8695 Tel: (306) 787-7846 Fax: (613) 788-3509 Fax: (306) 787-9111 Email: [email protected]

Counsel for the Intervener, Attorney Agent for the Intervener, Attorney General of Saskatchewan General of Saskatchewan TABLE OF CONTENTS

Page

PART I - OVERVIEW AND F ACTS ...... 1

PART II - QUESTIONS IN ISSUE ...... 2

PART III - ARGUMENT ...... 2 A) Inherent Right to Sovereignty and Self-Determination ...... 3 B) International Law ...... 5 C) Purposive Approach to s. 91(24) ofthe Constitution Act, 1867 ...... 9

PART IV - COSTS ...... 10

PART V - ORDER REQUESTED ...... 10

PART VI-TABLE OF AUTHORITIES ...... 12 JURISPRUDENCE ...... 12 SECONDARY MATERIALS ...... : ...... 12 STATUTORY AUTHORITIES ...... 13

-1- PART I - OVERVIEW AND FACTS

1. The Assembly of First Nations ("AFN") is the national representative organization of First Nations in Canada. There are over 633 First Nations' communities in Canada, comprising more than 50 Nations. The National Chief of the AFN is elected by First Nation Chiefs who provide the AFN with its mandate.

2. The AFN advocates for First Nations in areas affecting their rights and well-being as Indigenous peoples. More specifically, the AFN advocates for the respect and implementation of First Nations' Aboriginal and Treaty rights including First Nations' inherent over matters of identity, citizenship and belonging. The citizens of First Nations include persons entitled to registration under the , and persons of First Nations heritage and culture who are not so entitled. First Nations have been reasserting their over citizenship irrespective ofthe registration provisions of the Indian Act.

3. First Nations across Canada have distinct histories, territories, cultures, languages, and citizens. First Nations' collective rights are founded in their distinct identities, relationships to land, Treaty relationships with and their equal rights as peoples to self-determination.

4. First Nations are included within the meaning of the term "Indians" in s. 35 of the Constitution Act, 1982, and the term "Indians" in section 91(24) ofthe Constitution Act, 1867.

5. The AFN submits that the meaning of the term "Indian" in both sections 91(24) and 35 is collective in nature. Individual identity as "Indian" is derivative of the collective identities referenced by the colonial term "Indian".

6. The AFN submits the legislative history of defining and applying the word "Indian" under the Indian Act is infused with the colonial objective of controlling, colonizing and dismantling the distinct identities of First Nations. As a fundamental human right, First Nations continue to possess inherent jurisdiction to determine membership in their nations and this power necessarily shapes the collective and individual meaning of the term "Indian" in s. 91(24).

7. Any jurisdiction of the federal government to define the content of the term "Indian" under s. 91(24) of the Constitution Act, 1867 - whether collectively or individually - is circumscribed by s. 35 of the Constitution Act, 1982, the Treaties, and First Nations' inherent right to self-determination. Additionally, the Constitution Act, 1867 must be interpreted in a 2 manner consistent with the UN Declaration and other international human rights instruments. 1

8. The UN Declaration confirms the right of Indigenous peoples to define their own collective identity2. A purposive interpretation consistent with international principles, leads to the conclusion that certain "non-status Indians" must be included in the term "Indians" within the meaning of s. 91(24). The power to define who belongs to the collective entities referenced by the colonial term "Indians" as it refers to First Nations lies with First Nations themselves.

9. The AFN takes no position regarding the issues relating to the Metis, and the question of whether the Metis are also "Indians" within the meaning of s. 91(24). To the extent that any group of Metis are found to fall within the meaning of "Indian", that meaning must necessarily be distinct from that applied to First Nations given that the existence of First Nations as Peoples and nations necessarily pre-dates that of any Metis peoples.

1O. The AFN submits that the existence or content of any fiduciary duty or other legal obligation or right of Metis people cannot and should not be decided on the facts of this case.

PART H - QUESTIONS IN ISSUE

11. The AFN intervenes in relation to the first question in issue: whether non-status Indians are "Indians" under s. 91 (24) of the Constitutional Act, 1867.

PART HI - ARGUMENT

12. The definition of "Indians" for constitutional purposes IS a matter of significant importance to the AFN, its constituents and all First Nations communities. The AFN submits that the interpretation of the content of the term "Indians" in s. 91(24) must be performed in a contextual and purposive manner.

13. The interpretation of the word "Indians" must be informed by:

(a) First Nations' inherent right to sovereignty and self-determination; (b) international perspectives and prevailing norms for determining identity; and (c) the historic and contemporary purpose of s. 91(24) of the Constitution Act, 1867.

1 Canada (Human Rights Commission) v Canada (Attorney General), 2012 FC 445, [2012] FCJ No 425 [Human Rights Commission]. 2 United Nations Declaration on the Rights ofIndigenous Peoples, GA Res 611295 (Annex), UN GAOR, 61st Sess, Supp No 49, Vol III, UN Doc Al61129 (2008) 15 at articles 1-9,33-35. 3

A) Inherent Right to Sovereignty and Self-Determination

14. Article 33 of UN Declaration states, in part, that Indigenous peoples have the "right to determine their own identity or membership in accordance with their customs and traditions.,,3 The right to determine identity and membership is a key aspect of sovereignty and of the right to self-determination. It is an accepted maxim of international law that every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions, or to admit them upon such conditions as it sees fit to prescribe.4 This maxim applies equally to the First Nations in what is now Canada.

15. Regarding Metis identity, this Court stated in 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 and European forebears. 5

Similarly, the AFN submits that a purposive interpretation of the content of the term "Indian" as it applies to First Nations must give primacy to First Nations law and inherent jurisdiction as an aspect of First Nations' right to self-determination.

16. Regarding Metis identity, in R. v. Powley this Court acknowledged the importance of self-determination by Aboriginal communities, stating:

In the meantime, courts faced with Metis claims will have to ascertain Metis identity on a case-by-case basis. The inquiry must take into account both the value of community self-defmition, and the need for the process of identification to be objectively verifiable.6 [emphasis added]

17. This Court endorsed the three part test for determining Metis identity from the courts below. Emphasizing the importance of the community acceptance criterion, the Court held:

Third, the claimant must demonstrate that he or she is accepted by the modem community whose continuity with the historic community provides the legal foundation for the right being claimed ... The core of community acceptance is past and ongoing participation in a shared culture, in the customs and traditions that constitute a Metis community's identity and distinguish it from other groups. This is what the community membership criterion is all about... The range of acceptable forms of evidence does not attenuate the need for an obj ective demonstration of a solid bond of past and present mutual identification and recognition of common belonging between the claimant and other members of the rights-bearing

3 Ibid at article 33-35. 4 Ekiu v United States, 142 US 65lat 659 (1892). 5 R v Powley, [2003] 2 SCR 207 at para 10. 6 Ibid, at para 29. 4

community. 7 [emphasis added] 18. It must always be borne in mind that Aboriginal rights are collective rights. This is true of the right to determine community identity and membership. As recognized by the Supreme Court of in the landmark Tsilhqot 'in, 8 the proper rights holder of any Aboriginal right, is the Indigenous Peoples or nation itself. On this, the Court opined:9

Tsilhqot'in people were the historic community of people sharing language, customs, traditions, historical experience, territory and resources at the time of first contact and at sovereignty assertion. The Aboriginal rights of individual Tsilhqot'in people or any other sub-group within the Tsilhqot'in Nation are derived from the collective actions, shared language, traditions and shared historical experiences of the members of the Tsilhqot'in Nation.

19. As recognized by the Court in Tsilhqot'in and other cases dealing with legal standing in relation to First Nations rights, flexibility is required to account for the colonial impacts of legislative interference with First Nations' identity. In KwicksutaineuklAh-Kwa-Mish, the Court considered the significance of various identity terms in regard to the standing of representative plaintiffs to bring class actions on behalf of "aboriginal collectives". Canada argued against the application, alleging that it was not clear whether the class comprised aboriginal collectives or members of those collectives and that the term "First Nations" had no legal meaning.

20. In deciding this issue, the Court took that numerous First Nation collectives constituted as Bands under the Indian Act are generally known as First Nations both within the practice of the Indian Affairs Department and the practice of national, provincial and regional First Nation organizations. The Court noted that the pleadings variously referred to the proposed class members as "Nations", "First Nations" and "Tribes" and that legislation and the case law used a variety of terms to refer to the holders of aboriginal and Treaty rights ("aboriginal peoples"lO, "distinct aboriginal groups"lt, "aboriginal nations,,12 and "First Nations"l\ The Court's analysis itself used a variety of terms - "indigenous peoples", "aboriginal collective", "First Nation", "tribe" and "band".

21. The decision in KwicksutaineuklAh-Kwa-Mish has a number of notable features relevant

7 Ibid at para 33. 8 TSilhqot'in Nation v British Columbia, 2007 BCSC 1700, [2007] BCJ No 2465 [Tsilhqot'in]. 9 Ibid at para 470. 10 Constitution Act, 1982, being Schedule B to the (UK), 1982 c 11 at s 35. 11 R v Vanderpeet, [1996] 2 SCR 507, l37 DLR (4th) [Vanderpeet]. 12 Delgamuukw v British Columbia, [1997] 3 SCR 1010,153 DLR(4th) 193. 13 Tsilhqot'in, supra note 8. 5 to understanding the rights of First Nations in determining their legal identity under Canadian law and how that right necessarily shapes the understanding of which collectivities and individuals fall within the meaning of s. 91(24). The Court held that the fact that the proposed class was comprised of Bands did not determine the question because "the Indian Act was not on the radar before contact and band membership may not necessarily establish an ancestral connection with members of the same indigenous aboriginal collective for which fishing rights was an integral aspect of a distinctive culture at contact.,,14 The Court's approach focused on the common characteristics ofthe proposed class in terms oflanguage, culture and territory.

22. In each of the Tsilhqot'in Nation, KwicksutaineuklAh-Kwa-Mish and Powley decisions, the Court found that the respective Indigenous plaintiff(s) shared a common language, culture and history and held a common interest in the particular collective right being asserted. Thus, in the case of First Nations, the courts have recognized the right of a First Nation to choose to style itself either as a "First Nation" independent of its Indian Act status where it can demonstrate a continuous connection between its contemporary collective identity and the historical ancestral right or Treaty right, or as an Indian band that is a successor to the original holder of the Aboriginal right or Treaty right. A collective action as a Nation of communities with common ties of language, culture and territory does not require proof of a common government structure.

B) International Treatment of Indigenous Peoples Identities in Law

23. In addition to the need to define the term "Indian" in a manner that respects the inherent right of Indigenous peoples to determine their own membership, it is important that any such definition accord with prevailing international norms.

24. The concept of race has received extensive international criticism as an arbitrary social construct that has fuelled many structural inequalities and blatant discrimination. A shift has occurred in international jurisprudence and commentary evidencing a move away from the use of race as a tool for identification to the concepts such as political, cultural and ethnic identity concepts that are more consistent with human rights objectives.

25. Following the release of the Federal Court decision in this case, Paul Chartrand issued a

14 KwicksutaineukIAh-Kwa-Mish First Nation v British Columbia (Agriculture and Lands), 2010 BCSC 1699 at paras 19- 20, [2011] CNLR 92. 6 commentary noting the difficulty with ascribing legislative power over a racial group.15 This power reflects the history of British colonization and its conception of humanity as being divided amongst different races. 16 Chartrand went on to note that conceiving a defensible meaning for the term "race" in contemporary Canada is difficult, particularly in light of the Canadian Charter of Rights and Freedoms. Chartrand states: "It is important that the interpretation of the "race" concept for the purposes of 91(24) be defensible in this constitutional context.,,17 Chartrand advocates for a jettison of biological concepts of race which offend current constitutional values and international human rights standards. Rather, he argues, any conception of race must contain defensible content which is linked to the legitimate policy purposes of s. 91(24).18

26. It must be kept in mind that the purposes of s. 91(24) have evolved from colonial objectives inconsistent with fundamental human rights to the fact that the core of "Indianness" in s. 91(24) is now understood to encompass Aboriginal rights and with it the objective of protecting First Nations .inherent rights in a manner consistent with international human rights norms. At the time of drafting 91(24), the federal government's primary goal was to colonize, assimilate and enfranchise Indians. As noted by the Ontario Superior Court in R. v. Etches:

The government policy of enfranchisement began with the passage in 1857 of An Act to Encourage the Gradual Civilization of Indian Tribes in the and to Amend the Laws Respecting Indians (hereinafter the "Gradual Civilization Act"). The preamble of the Gradual Civilization Act identifies the assimilation of the Indian people as the purpose of the enactment:

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

The enfranchisement policy was based on the premise that by removing all legal distinctions between Indians and non-Indians it would be possible to absorb Indian people fully into colonial society. Those subject to enfranchisement were no longer considered "Indians" and they lost their right to be members of and to reside in their Aboriginal communities. 19

27. Phelan J. noted this policy in the trial level decision in this case, stating:

15 Case Comment Paul L.A. H. Chartrand, "Understanding the Daniels Case on s.91(24) Constitution Act 1867", Case Comment on Daniels v R 2013 FC 6, (2014) 3 aboriginal policy studies 115-131. 16 Ibid at 120. 17 Ibid at 121. 18 Ibid at 122. 19 R v Etches, 89 OR (3d) 599, [2008] OJ No 859 at paras 11-12. 7

It is generally accepted by the experts that in this period of the 1850s, government policy was also moving in the direction of assimilation, civilization and enfranchisement. It was a phenomenon of Indian policy then and well into the 20thcentury that governments moved from this policy of inclusion (on European society terms) to exclusion (sometimes to foster the unique lifestyle of native population) and sometimes oscillating between the two ends of the spectrum.

The purpose of the statute was to enact the policy of the Indian department of the United Province of Canada to reform natives so that they would adopt ideas about private property, correct moral behaviour and would learn to farm properly and otherwise engage in the commercial markets. 20

28. This policy of assimilation manifested itself in many racist and detrimental practices, the most notable of which was the Indian residential school system. The commented on this policy in its decision in R. v. Armitage where the court held: "The policy of such schools set up by the government was to 'kill the Indian in the child"'.21

29. This purpose stands in stark contrast to recent jurisprudential commentary on the reconciliation objective of s. 35 of the Constitution Act, 1982 respecting contemporary Crown­ First Nations relations, namely the reconciliation of pre-existing Indigenous nations/societies with the assertion of Crown sovereignty.22 Section 91(24) of the Constitution Act, 1867 must be interpreted in the broader context of its relationship to section 35 and its objectives.

30. Embracing any exclusionary, race-based definition of "Indians" will not aid in the objective of reconciliation and the recognition of First Nations' inherent right of sovereignty and self-determination. In "Aboriginality Under the Microscope" the authors state:

The genesis of the test of descent lies in an outdated scientific method that has no place in twenty-first century law. It is a throw-back to perceptions of race where the peoples of the work were defmed as sub­ species of humans according to their physical characteristics rather than their cultural differences. Furthermore, the test is in direct contravention of international human rights instruments which hold that one of the most basic human rights of any group is the right to defme themselves according to their own customs and laws. International conventions to which Australia is a signatory utterly reject racial classification of humans according to genetics.23

31. Canada too is a signatory to these international conventions. Parliament is presumed to act in compliance with its international obligations. As this Court held in R. v. Hape,24

20 Daniels v Canada (Minister ofIndian Affairs and Northern Development), 2013 FC 6 at paras 278-80, 357 DLR (4th) 47. 21 R v Armitage, 2015 ONCJ 64 at para 26, [2015] OJ No 701. 22 Vanderpeet, supra note 11 at paras 49,57; see also Metis Federation Inc v Canada (Attorney Genera!), 2013 SCC 14 at para 66, [2013] 1 SCR623. 23 Loretta De Plevitz & Larry Croft, "Aboriginality Under the Microscope: The Biological Descent Test in Australian Law" (2003) 3 QUT Law & Justice Journal 104 at 108. 24 R. v. Hape, 2007 SCC 26, [2007] 2 SCR 292; see also Elsipogtog First Nation v Canada (Attorney Genera!), 2012 FC 1117 at para 121, [2013] FCJ No 1203; see also Human Rights Commission, supra note 1 at para 351. 8 international human rights law is relevant to the interpretation of domestic legislation.

32. The importance of determining membership or citizenship as an aspect of self­ determination has been recognized by the and courts of the United States. The relationship between the United States and recognized Tribes is a government-to-government relationship. Tribes themselves determine their membership.25

33. In Commonwealth ofAustralia v State of Tasmania, the Australian High Court of Justice spoke about the criteria for identifying a person as a member of an Aboriginal "race". Justice Deane, opining: 26 ... By "Australian Aboriginal" I mean, in accordance with what I understand to be the conventional meaning of that term, a person of Aboriginal descent, albeit mixed, who identifies himself as such and who is recognised by the Aboriginal community as an Aboriginal.

34. In Re AG v Queensland,27 the Court held that descent is still an essential characteristic, but cultural circumstances must also be considered where it is not immediately apparent the person is of aboriginal descent. The Court held: 28 ... In a case where the proportion of Aboriginal blood in a person of mixed race is thought to be small, or where uncertainty exists as to whether a person is in any degree of Aboriginal descent, the word may be used or eschewed in reference to that person under the influence of what may be called cultural circumstances ... I would find that, in reference to him who identifies himself as a person of Aboriginal descent and who is recognised as an Aboriginal by the Aboriginal community, the word "Aboriginal" will be used, notwithstanding that he is thought to be in only small part of Aboriginal descent, or to be not certainly, only possibly, of Aboriginal descent at all.

C) Purposive Approach to s. 91(24) of the Constitution Act. 1867

35. It is of the utmost importance that the content of the term "Indians" be determined in a contextual and purposive manner with the objective of reconciliation in mind. The historical purpose of s. 91(24) is incompatible with the contemporary commitment to the reconciliation of the pre-contact existence of First Nation communities with the assertion of Crown sovereignty.

25 Russell Thornton, "Tribal membership requirements and the demography of 'old' and 'new' Native Americans" (1997) 16 Population Research and Policy Review 33 at 35-36; see also "Frequently Asked Questions", online: Indian Affairs, US Department of the Interior < http://www.bia.gov/FAQs/index.htm>. 26 Commonwealth of Australia and Another v State of Tasmania and Others, [1983] RCA 21, [1983] 158 CLR 1 (High Court of Justice) at para 50. 27 Re Attorney-General of the Commonwealth of Australia (Intervener) and the National Aboriginal and Islander Legal Services Secretariat v Queensland and Lewis France Wyvill Qc, [1990] FCA 235,94 ALR 515. 28 Ibid at para 3. 9

36. It offends any sense of justice to accept the Respondent's argument that there is no practical utility to the requested declarations on the basis that no legal rights or obligations will flow from the declarations. As noted by the Appellants, where the Crown has constitutional obligations to Aboriginal peoples, the honour of the Crown requires diligent implementation of those obligations?9 Any argument by the Respondents that would exclude all non-status Indians from their federal constitutional responsibility must be scrutinized with a view to the impacts of colonialism on identity and the equal right of First Nations to self-determination.

37. Decades of targeted, intentional federal policies of assimilation and cultural genocide against First Nations people created a raft of human rights abuses and violations whose impacts continue. The systemic destruction of First Nations' cultures, traditions and lifestyles did incalculable damage to the institutions used to govern and manage First Nations communities.

38. Government policies of enfranchisement and assimilation created generations of people displaced and detached from their cultural communities and roots, many of whom identify as "non-status Indians". These individuals were often forcibly removed from their communities and stripped of their culture. They settled in urban centres, often partnering with non-First Nation individuals and producing children of mixed ancestry.30 To now exclude such individuals from the constitutional protection of s. 91(24) of the Constitution Act, 1867 because they are not "Indian" enough, is not only offensive, but amounts a return to enfranchisement policies of the 20th century. In addition, the said exclusion of individuals recognized as citizens by First Nations would run counter to the basic human rights norms expressed in the UN Declaration.

39. The Crown-First Nation relationship is fiduciary in nature, yet First Nations enjoy equal rights as peoples under international human rights law. The Courts have consistently recognized that the Crown must act in the best interests of First Nations and that in all of its dealings with First Nations, the honour ofthe Crown is at stake. As held in R. v. Sparrow:

The sui generis nature of Indian title, and the historic powers and responsibility assumed by the Crown constituted the source of such a fiduciary obligation. In our opinion, Guerin, together with R. v. Taylor and Williams, ground a general guiding principle for s. 35(1). That is, the Government has the responsibility to act in a fiduciary capacity with respect to aboriginal peoples. The relationship between the Government and

29 Factum of the Appellant, p 37 at para 97. 30 The and Reconciliation Commission of Canada, "Introduction" in Canada, Aboriginal Peoples, and Residential Schools: They Came for the Children (2012) 1 at 1-3. 10

aboriginals is trust-like, rather than adversarial, and contemporary recognition and afftrmation of aboriginal rights must be deftned in light of this historic relationship.3l

40. The problems created by the federal legislation aimIng to define "Indians" in exclusionary terms and the on-going complications and inequity arising from the enfranchisement provisions of the Indian AcP2 is contrary to the Crown's fiduciary duty and its international human rights obligations.

41. The enfranchisement provisions of the Indian Act, together with the Crown's forcible removal of Indians from their communities and cultures, resulted in the difficulties now evident in determining questions of status, membership and the definition of "Indians" for constitutional purposes. For the Federal government to now resile from its constitutional responsibility for Indians on the basis that some Indians are not "Indian" enough, would be unjust and inequitable and it should be estopped from doing so. The determination of membership is properly in the realm of First Nations' as an aspect of their right to self-determination.

PART IV - COSTS

42. The AFN seeks no costs and asks that costs not be awarded against it.

PART V - ORDER REQUESTED

43. The AFN respectfully requests that it be allowed to make an oral argument of not more than ten (10) minutes.

3l , [1990] 1 SCR 1075, [1990] SCJ No 49 at para 59. 32 Bill C-31, An Act to amend the Indian Act, 1st Sess, 33rd ParI, 1985 (assented to 28 June 1985); see also Bill C-3, An Act to promote gender equity in Indian registration by responding to the Court ofAppeal for British Columbia decision in McIvor v Canada (Registrar ofIndian and Northern Affairs), 3rd Sess, 40th ParI, 2010-2011 (assented to 15 December 2010). 11

Cowling L¢eup)lenderson LLP 160 Elgin/~tre~Suite 2600 Ottawa, ON :KIP 1C3

Guy Regimbald Tel: (613) 786-0197 Fax: (613) 563-9869 Email: [email protected]

Jaimie Lickers Tel: (905) 540-2468 Fax: (905) 523-2528 Email: [email protected]

Lawyers for the Intervener, The Assembly of First Nations 12

PART VI - TABLE OF AUTHORITIES

'.' . •...... ,.,,: . ,. .' ···i...·> ··'i.· '. ..••..•.• ' __ Document l Pa'e.' :. "...... ~ ';'::.':. ·,-~.·C.>:··\" . '.' __. : •.•• >",.' ': .. ,., ..... "2. ..,.g:. . A. J urisp rudence

1. Canada (Human Rights Commission) v Canada (Attorney General), 2,7 2012 FC 445, [2012] FCJ No 425.

2. Commonwealth of Australia and Another v State of Tasmania and 8 Others, [1983] HCA 21, [1983] 158 CLR 1 (High Court of Justice).

Daniels v Canada 3. (Minister of Indian Affairs and Northern 7 Development), 2013 FC 6,357 DLR (4th) 47.

Delgamuukw v British Columbia, [1997] 3 SCR 1010, 153 DLR (4th) 4. 4 193.

Ekiu v United States, 142 US 65 (1892). 5. 3 Elsipogtog First Nation v Canada (Attorney Genera!), 2012 FC 1117, 6. 7 [2013] FCJ No 120.

K wicksutaineuklAh-Kwa-Mish First Nation v British Columbia 5 7. (Agriculture and Lands), 2010 BCSC 1699, [2011] CNLR 92.

Manitoba Metis Federation Inc v Canada (Attorney Genera!), 2013 SCC 7 8. 14, [2013] 1 SCR 623.

Re Attorney-General ofthe Commonwealth ofAustralia (Intervener) and 8 9. . the National Aboriginal and Islander Legal Services Secretariat v Queensland and Lewis France Wyvill Qc, [1990] FCA 235,94 ALR 515.

R v Armitage, 2015 ONCJ 64, [2015] OJ No 701. 7 10. R v Etches, 89 OR (3d) 599, [2008] OJ No 859. 6 11. R. v. Hape, 2007 SCC 26, [2007] 2 SCR 292. 7 12. R v Powley, 2003 SCC 43, [2003] 2 SCR 207. 3,4 13. R v Sparrow, [1990] 1 SCR 1075, [1990] SCJ No 49. 10 14. R v Vanderpeet, [1996] 2 SCR 507,137 DLR (4th) 289. 4,7 15. 13

16. Tsilhqot'in Nation v British Columbia, 2007 BCSC 1700, [2007] BCJ No 4 2465.

B. Secondary Materials

1. Case Comment Paul L.A. H. Chartrand, "Understanding the Daniels 6 Case on s.91(24) Constitution Act 1867", Case Comment on Daniels v R 2013 FC 6, (2014) 3 aboriginal policy studies 115-131.

"Frequently Asked Questions", online: Indian Affairs, US Department of 8 2. the Interior .

Loretta De Plevitz & Larry Croft, "Aboriginality Under the Microscope: 7 3. The Biological Descent Test in Australian Law" (2003) 3 QUT Law & Justice Journal 104.

Russell Thornton, "Tribal membership requirements and the demography 8 4. of 'old' and 'new' Native Americans" (1997) 16 Population Research and Policy Review 33.

The Truth and Reconciliation Commission of Canada, "Introduction" in 9 5. Canada, Aboriginal Peoples, and Residential Schools: They Came for the Children (2012).

United Nations Declaration on the Rights of Indigenous Peoples, GA 2,3 6. Res 61/295 (Annex), UN GAOR, 61st Sess, Supp No 49, Vol III, UN Doc Al61/29 (2008) 15.

C. Statutory Authorities .. 1st Sess, 33rd Pari, 1985 10 1. Bill C-31, An Act to amend the Indian Act, (assented to 28 June 1985).

Bill C-3, An Act to promote gender equity in Indian registration by 10 2. responding to the Court of Appeal for British Columbia decision in McIvor v Canada (Registrar of Indian and Northern Affairs), 3rd Sess, 40th ParI, 2010-2011 (assented to 15 December 2010).

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