Court File № T-2172-99 IN THE FEDERAL COURT OF CANADA B E T W E E N: HARRY DANIELS, GABRIEL DANIELS, LEAH GARDNER, TERRY JOUDREY and THE CONGRESS OF ABORIGINAL PEOPLES Plaintiffs - and - HER MAJESTY THE QUEEN, as represented by THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT and THE ATTORNEY GENERAL OF CANADA Defendants PLAINTIFFS’ MEMORANDUM OF FACT AND LAW Joseph E. Magnet (LSUC #19386E) Barrister & Solicitor 306 Queen Elizabeth Driveway Ottawa, ON K1S 3M7 Ph.: (613) 562-5800 x3315 Fax: (613) 562-5124 Paliare Roland Rosenberg Rothstein LLP Barristers & Solicitors Suite 501, 250 University Avenue Toronto, ON M5H 3E5 Andrew K. Lokan (LSUC #31629Q) Ph.: (416) 646-4324 Fax: (416) 646-4323 Lawyers for the Plaintiffs TO: Department of Justice Canada Prairie Region 211, 10199 - 101 Street Edmonton, AB T5J 3Y4 Donna Tomljanovic ph. (780) 495-8795 fax. (780) 495-3834 Solicitors for the Defendants Court File № T-2172-99 IN THE FEDERAL COURT OF CANADA B E T W E E N: HARRY DANIELS, GABRIEL DANIELS, LEAH GARDNER, TERRY JOUDREY and THE CONGRESS OF ABORIGINAL PEOPLES Plaintiffs - and - HER MAJESTY THE QUEEN, as represented by THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT and THE ATTORNEY GENERAL OF CANADA Defendants PLAINTIFFS’ MEMORANDUM OF FACT AND LAW PART I – OVERVIEW A. Issues and their Importance 1. In this action, Plaintiffs claim declarations: (a) That Métis and Non-Status Indians (“MNSI”) are “Indians” within the meaning of Constitution Act, 1867 , s. 91(24); (b) That the Crown in right of Canada (“Canada”) owes a fiduciary duty to MNSI as Aboriginal peoples; and (c) That Canada must negotiate and consult with MNSI, on a collective basis through representatives of their choice, with respect to their rights, interests and needs as Aboriginal peoples. 1 1 Fresh as Amended Statement of Claim, paras. 22, 27. 2 2. These are issues of critical importance to Canada's 200,000 Métis and 400,000 Non-Status Indians. Canada denies jurisdiction over Métis and Non- Status Indians, claiming the provinces are responsible; the provinces also deny jurisdiction over MNSI, claiming Canada is responsible. 2 3. The consequence is that Métis and Non-Status Indians are trapped in a jurisdictional vacuum, where no government accepts responsibility for them or programs adequately for their needs as aboriginal peoples. This is the principal reason why MNSI are under-serviced by governments, and why they have not reached their full potential in Canadian society. As the Defendant’s Secretary of State observed in a memo to Cabinet: The Métis and non-status Indian people, lacking even the protection of the Department of Indian Affairs and Northern Development, are far more exposed to discrimination and other social disabilities. It is true to say that in the absence of Federal initiative in this field they are the most disadvantaged of all Canadian citizens.3 2 CR-008795, pp. 1, 7, Ex. P127: In R. v. Powley , the Superior Court of Justice quoted the following exchange from the transcript, between counsel and Tony Belcourt, President of the Métis Nation of Ontario: Q. And what are the other Provincial Governments responses to the Métis? A. Generally, the Provincial Government responses, there haven't been any pieces of legislation concerning the Métis and most Provincial Governments take the position, we've been political footballs ever since I've been involved in lobbying at the federal level for some 28 years now. We are . we are a political football. The Federal Government says we don't have the responsibility for you, the Provinces do and the Provinces take the opposite position. We don't have the responsibility, the Federal Government does. R. v. Powley , 47 O.R. (3d) 30, at para. 76 (S.C.J.); affirmed [2003] 2 S.C.R. 211. The "tactical maneuvering" of federal and provincial authorities with respect to this issue was also criticized by Justice Wakeling of the Saskatchewan Court of Appeal, in R. v. Grumbo , a case in which the Saskatchewan Crown conceded that Métis were Indians within the meaning of s.91(24); R. v. Grumbo , [1998] 3 C.N.L.R. 172 (Sask. C.A.), per Wakeling J.A. (dissenting). 3 CR-008005, Ex. P124 - Gérard Pelletier, Secretary of State, Confidential Memorandum to Cabinet, “Métis and Non-Status Indians - Research Proposals”, July 6, 1972, p. 5 (6 in Summation). 3 4. In 1996, the Royal Commission on Aboriginal Peoples said in its 4000 page Report that the jurisdiction issue “is the most basic current form of governmental discrimination.” The Commission observed that “until this discriminatory practice has been changed, no other remedial measures can be as effective as they should be”.4 5. The Commission called upon the federal government to “acknowledge that s. 91(24) … applies to Métis people and base its legislation, policies and programs on that recognition,” or clarify the situation by action in the Courts. 5 6. Canada has done neither. In the meantime, MNSI are denied effective access to a wide range of programs, benefits and rights, and languish as Canada’s “forgotten people”. B. The Precedents 7. This case asks the Court to interpret Parliament’s legislative jurisdiction at Constitution Act, 1867 , s. 91(24). 8. Section 91(24) invests Parliament with exclusive power to make laws in relation to all matters coming within the class of subject styled “Indians and 4 Report of the Royal Commission on Aboriginal Peoples, (Ottawa: Canada Communications Group, 1996), Vol. IV, at p. 209-10, 219-20. 5 Id., p 210. 4 Lands reserved for the Indians”. Specifically, the court must determine whether MNSI are a “matter” that “comes within” the class of “Indians”. 9. The Supreme Court of Canada precedents show that Parliament’s legislative jurisdiction at s. 91(24) is “broad”. 6 By resort to s. 91(24) Parliament may define who is and who is not an Indian. Parliament may establish criteria for Indian status to be acquired or lost. Parliament may attach consequences to Indian status. 7 10. The precedents show that Parliament’s s. 91(24) power (“Indian Power”) must be exercised within “constitutional limits.” Legislation in relation to aboriginal ancestry is within those limits. Legislation in relation to intermarriage between 6 Reference re Eskimos , [1939] S.C.R. 104. At para 35 Chief Justice Duff, for himself, Davis and Hudson JJ. (Crocket J. concurring), referred to the “ample evidence of the broad denotation of the term ‘Indian’ as employed” in s. 91(24). At para. 38 Chief Justice Duff, for himself, Davis and Hudson JJ. (Crocket J. concurring), stated: “Nor can I agree that the context (in head no. 24) has the effect of restricting the term ‘Indians.’ If ‘Indians’ standing alone in its application to British North America denotes the aborigines, then the fact that there were aborigines for whom lands had not been reserved seems to afford no good reason for limiting the scope of the term ‘Indians’ itself.” Peter W. Hogg, Constitutional Law of Canada (Scarborough, Ont.: Carswell, 2007) at 28.1(b): “These “non-status Indians” … are also undoubtedly “Indians” within the meaning of s.91(24) … [the Métis] are probably “Indians” within the meaning of s.91(24).” Canada, Royal Commission on Aboriginal Peoples: Perspectives and Realities , vol. 4 (Ottawa: Supply and Services Canada, 1996) at 209 - 210: s.91(24) was intended to refer to “all the aborigines of the territory and subsequently included in the Dominion.” Lysk, K.M. “The Unique Constitutional Position of the Canadian Indian” (1967) 45 Can. Bar Rev. 513 at 515: “The meaning on the term “Indian” in particular statutes may, of course, be narrower than the corresponding term in the British North America Act, … It may be too, that a person who was once an Indian for the purposes of the Indian Act, but has lost his status as an Indian under that Act by enfranchisement, may nevertheless continue to be an Indian for the purposes of the British North America Act .” 7 Lavell v. Canada (Attorney General) , [1974] S.C.R. 1349 [Lavell]. 5 Aboriginals and non-Aboriginals, and consequences resulting, are within those limits. 8 11. Métis and Non Status Indians are persons of Aboriginal ancestry. MNSI have evolved as a result of intermarriage between aboriginals and non- aboriginals. These are the critical indicia the Supreme Court precedents say activate Parliament’s s. 91(24) power to make laws in relation to the matter of Indian status and its consequences. 9 12. As this brief will show, Parliament has used its s. 91(24) power since 1867 to define and to redefine Métis and Non status Indians at various times, for various purposes and under varying circumstances as either Indians or not Indians in the Indian Act and in other legislative schemes as suits the prevailing necessities of the day as Parliament sees them. 10 8 Canard v. Canada (Attorney General) [1976] 1 S.C.R. 170 [Canard]. At p. 207 Justice Beetz stated that Parliament may define the expression “Indian”: “This Parliament can do within constitutional limits by using criteria suited to this purpose but among which it would not appear unreasonable to count marriage and filiation and, unavoidably, intermarriages, in the light of either Indian customs and values which, apparently were not proven in Lavell, or of legislative history…”. 9 Lavell , supra., Canard , supra . 10 Evidence of Gwynneth Jones, Transcript , May 26, vol. 17, pp. 2870-72. Parliament’s activity in this regard began immediately after Confederation. S.C. 1868, c. 42, s. 15 defined as Indians “all women lawfully married to any [Indian]; the children issue of such marriages, and their descendants.” By The Indian Act, 1876 , S.C.