Intervener Métis-Federation-of

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
- and -
HER MAJESTY THE QUEEN as represented by
THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT
and THE ATTORNEY GENERAL OF CANADA
Respondents
- and ATTORNEY GENERAL FOR SASKATCHEWAN, ATTORNEY GENERAL OF ALBERTA,
NATIVE COUNCIL OF NOV A SCOTIA,
NEW BRUNSWICK ABORIGINAL PEOPLES COUNCIL and
THE NATIVE COUNCIL OF PRINCE EDWARD ISLAND (joint),
METIS SETTLEMENTS GENERAL COUNCIL,
TE'MEXW TREATY ASSOCIATION, METIS FEDERATION OF CANADA,
ASENIWUCHE WINEW AK NATION, CHIEFS OF ONT ARIO,
GIFT LAKE METIS SETTLEMENT, NATIVE ALLIANCE OF QUEBEC,
ASSEMBLY OF FIRST NATIONS, ME TIS NATIONAL COUNCIL
Interveners
FACTUM OF THE INTERVENER
ME TIS FEDERATION OF CANADA
DEVLIN GAILUS WESTAWAY
DEVLIN GAILUS WESTAWAY
2nd Floor, 736 Broughton Street
Victoria, BC V8W lEl
Christopher Devlin
John Gailus
Cynthia Westaway
Suite 230, 55 Murray Street
Ottawa, ON KIN 5M3
Email: [email protected]
[email protected]
cynthia@dgw law .ca
Tel:
Fax:
250.361.9469
250.361.9429
Counsel for the Intervener
Metis Federation of Canada
Cynthia Westaway
Email: [email protected]
Tel:
Fax:
613.722 .9091
613 .722.9097
Ottawa Agent for the Intervener
Metis Federation of Canada
TO:
THE PLAINTIFF (Appellant): Harry Daniels:
Counsel
Joseph Eliot Magnet
Andrew K. Lokan
Lindsay Scott
Agent
Brian A. Crane, Q.C.
University of Ottawa, Faculty of Law
357 - 57 Louis Pasteur St.
Ottawa ON KIN 6N5
Gowling Lafleur Henderson LLP
2600 - I 60 Elgin St
Box 466 Station D
Ottawa ON KIP IC3
Telephone: (6I3) 562-5800 Ext: 33 I5
FAX: (6I3) 562-5I24
E-mail: [email protected]
Telephone: (613) 233-I 78I
FAX: (6I3) 563-9869
E-mail: [email protected]
THE PLAINTIFFS (Appellants): Gabriel Daniels, Leah Gardner, Terry Joudrey and The
Congress of Aboriginal Peoples:
Counsel
Joseph Eliot Magnet
Andrew K. Lokan
Lindsay Scott
University of Ottawa, Faculty of Law
357 - 57 Louis Pasteur St.
Ottawa ON KIN 6N5
Telephone: (613) 562-5800 Ext: 33 I 5
FAX: (613) 562-5I24
E-mail: [email protected]
Agent
Brian A. Crane, Q.C.
Gowling Lafleur Henderson LLP
2600 - I 60 Elgin Street
Ottawa ON KIP IC3
Telephone: (613) 233-I 781
FAX: (613) 563-9869
E-mail: [email protected]
THE DEFENDANTS (Respondents): Her Majesty the Queen as represented by The
Minister of Indian Affairs and Northern Development and Attorney General of Canada:
Christopher M. Rupar
Shauna K. Bedingfield
Mark R. Kindrachuk, Q.C.
Address
Attorney General of Canada
50 O'Connor Street, Suite 500, Room 557
Ottawa ON KIA OH8
Telephone: (613) 670-6290
FAX: (613) 954-1920
E-mail: christopher.rupar@ justice.gc.ca
THE INTERVENER: Attorney General of Alberta:
Counsel
Angela Edgington
Neil Dobson
Attorney General of Alberta
10th Floor
10025 - 102A A venue
Edmonton AB T5J 2Z2
Telephone: (780) 427-1482
FAX: (780) 643-0852
E-mail: [email protected]
Agent
D. Lynne Watt
Gowling Lafleur Henderson LLP
160 Elgin Street
Suite 2600
Ottawa ON KIP IC3
Telephone: (613) 786-8695
FAX: (613) 788-3509
E-mail: [email protected]
THE INTERVENER: Metis Settlements General Council:
Counsel
Garry Appelt
Keltie Lambert
Witten LLP
2500, 10303 Jasper Ave.
Edmonton AB T5J 3N6
Telephone: (780) 428-0501
FAX: (780) 429-2559
Agent
Marie-France Major
Supreme Advocacy LLP
100- 340 Gilmour Street
Ottawa ON K2P OR3
Telephone: (613) 695-8855 Ext: 102
FAX: (613) 695-8580
E-mail: [email protected]
THE INTERVENER: Gift Lake Metis Settlement:
Counsel
Maxime Faille
Paul Seaman
Gowling Lafleur Henderson LLP
2600-160 Elgin Street
P.O. Box 466, Station D
Ottawa ON KIP 1C3
Telephone: (613) 233-1781
FAX: (613) 563-9869
E-mail: [email protected]
Agent
Guy Regimbald
Gowling Lafleur Henderson LLP
2600 - 160 Elgin Street
Ottawa ON KIP 1C3
Telephone: (613) 786-0197
FAX: (613) 563-9869
E-mail: [email protected]
THE INTERVENER: Metis National Council:
Counsel
Clement Chartier, Q.C.
Marc Leclair
Kathy L. Hodgson-Smith
Metis National Council
340 MacLaren, Unit 4
Ottawa ON K2P OM6
Telephone: (613) 232-3216
FAX: (613) 232-4262
Agent
Fran9ois Laroque
Power Law
1103 - 130 Albert Street
Ottawa ON KIP 504
Telephone: (613) 702-5560
FAX: (888) 404-2227
E-mail: [email protected]
THE INTERVENER: Native Council of Nova Scotia, New Brunswick Aboriginal Peoples
Council and Native Council of Prince Edward Island:
Counsel
D. Bruce Clarke
Agent
Jeffrey W. Beedell
Burchell Hayman Parish
1801 Hollis Street, Suite 1800
Halifax NS B3J 3N4
Gowling Lafleur Henderson LLP
2600 - 160 Elgin Street
Ottawa ON KIP 1C3
Telephone: (902) 423-6361
FAX: (902) 420-9326
E-mail: [email protected]
Telephone: (613) 786-0171
FAX: (613) 788-3587
E-mail: [email protected]
THE INTERVENER: Te'mexw Treaty Association:
Counsel
Robert J.M. Janes
Agent
Guy Regimbald
Janes Freedman Kyle Law Corporation
816 - 117 5 Douglas Street
Victoria BC V8W 2E 1
Gowling Lafleur Henderson LLP
2600 - 160 Elgin Street
Ottawa ON KIP 1C3
Telephone: (250) 405-3460
FAX: (250) 3 81-8567
E-mail: rjanes@ jfklaw.ca
Telephone: (613) 786-0197
FAX: (613) 563-9869
E-mail: [email protected]
THE INTERVENER: Aseniwuche Winewak Nation:
Counsel
Karey Brooks
Agent
Guy Regimbald
Janes Freedman Kyle Law Corporation
340-1122 Mainland Street
Vancouver BC V6B SLl
Gowling Lafleur Henderson LLP
2600 - 160 Elgin Street
Ottawa ON KlP 1C3
Telephone: (604) 687-0S49
FAX: (604) 687-2696
E-mail: kbrooks@ jfklaw.ca
Telephone: (613) 786-0197
FAX: (613) S63-9869
E-mail: [email protected]
THE INTERVENER: Chiefs of Ontario:
Counsel
David C. Nahwegahbow
Agent
Guy Regimbald
Nahwegahbow, Corbiere Genoodmagejig
S884 Rama Road
Suite 109
Rama ON L3V 6H6
Gowling Lafleur Henderson LLP
2600 - 160 Elgin Street
Ottawa ON KlP 1C3
Telephone: (613) 786-0197
FAX: (613) S63-9869
E-mail: [email protected]
Telephone: (70S) 32S-OS20
FAX: (70S) 32S- 7204
E-mail: [email protected]
THE INTERVENER: Native Alliance of Quebec:
Counsel
Marc Watters
Agent
Guy Regimbald
Gagne, Letarte, S.E.N.C.
79, boul. Rene-Levesque Est
Bureau 400
Quebec QC GlR SNS
Gowling Lafleur Henderson LLP
2600 - 160 Elgin Street
Ottawa ON KIP 1C3
Telephone: (418) S22-7900
FAX: (418) S23-7900
E-mail: [email protected]
Telephone: (613) 786-0197
FAX: (613) S63-9869
E-mail: [email protected]
THE INTERVENER: Attorney General of Saskatchewan:
Counsel
P. Mitch McAdam, Q.C.
Agent
D. Lynne Watt
Attorney General for Saskatchewan
820 - I 874 Scarth St
Aboriginal Law Branch
Regina SK S4P 4B3
Gowling Lafleur Henderson LLP
2600 - I 60 Elgin Street
Ottawa ON KIP I C3
Telephone: (306) 787-7846
FAX: (306) 787-91 I I
Telephone: (6 I 3) 786-8695
FAX: (6I3) 788-3509
E-mail: [email protected]
THE INTERVENER: Assembly of First Nations:
Counsel
Stuart Wuttke
Agent
Guy Regimbald
Assembly of First Nations
I 600 - 55 Metcalfe Street
Suite I600
Ottawa ON KIP 6L5
Gowling Lafleur Henderson LLP
2600 - I 60 Elgin Street
Ottawa ON KIP IC3
Telephone: (6I3) 24I-6789
FAX: (613) 24I-5808
Telephone: (613) 786-0 I 97
FAX: (613) 563-9869
E-mail: [email protected]
TABLE OF CONTENTS
PART I - STATEMENT OF FACTS AND OVERVIEW .........................................................................
1
PART II - QUESTIONS IN ISSUE ...................................................................................................... 1
PART Ill- STATEMENT OF ARGUMENT ......................................................................................... l
International Law and Other Jurisdictions ............................................................................ 2
Canadian Law, History, and Policy ......................................................................................... 5
Purpose of Section 91(24) ......................................................................................................... 7
PART IV -SUBMISSIONS ON COSTS .............................................................................................
P ART
10
v -NATURE OF THE ORDER SOUGHT ................................................................................ 10
PART VI - TABLE OF AUTHORITIES ............................................................................................
11
PART VII-STATUTES ..................................................................................................................
14
PART I-STATEMENT OF FACTS AND OVERVIEW
1.
The Metis Federation of Canada (la Federation Metisse du Canada) (the "MFC") accepts
the statement of facts and overview of the Appellants.
PART II - QUESTIONS IN ISSUE
2.
The MFC accepts the issues as stated by the Appellants 1 and will focus its submissions on
the first and second questions. The MFC takes the following positions:
(a)
The Federal Court of Appeal en-ed by varying the First Declaration to exclude nonstatus Indians.
(b)
The Federal Court of Appeal en-ed by unduly nan-owmg the scope of the First
Declaration in relation to Metis.
PART III - STATEMENT OF ARGUMENT
3.
The term "Indians" within the meaning of the expression "Indians and Lands reserved for
Indians" under s. 91 (24) of the Constitution Act, 1867 should be interpreted to include all
indigenous peoples of Canada. Indigeneity for the purposes of s. 91 (24) should be informed by the
principles of self-determination and self-identification and should have as its focus indigenous
ethnicity (i.e. "indigeneity").
4.
"Race" is not a useful concept in defining indigeneity for the purposes of s. 91 (24).
Anthropologists generally accept that "all human beings are members of one species, Homo
sapiens," and that "differentiating species into biologically defined 'races' has proven meaningless
and unscientific as a way of explaining variation". 2 The United Nations Educational, Scientific
and Cultural Organization stated in 1950 that "it would be better when speaking of human races
to drop the tenn 'race' altogether and speak of ethnic groups." 3 The Expe1i Panel on Constitutional
1
Factum of the Appellants, at para 38 .
American Anthropological Association, "Statement on ' Race' and Intelligence" (adopted December 1994). See
also United Nations Educational, Scientific and Cultural Organization, "Declaration on Race and Racial Prejudice",
27 November 1978. [Book of Authorities ("BA") Tab 16]
3
United Nations Educational, Scientific and Cultural Organization, Four Statements on the Race Question , (Paris:
UNESCO, 1969) at 31 . [BA Tab 26)
2
2
Recognition of Indigenous Australians concluded that in "contemporary practice and scholarship,
the dominant view among biological scientists, anthropologists and social theorists is that the
concept of 'race' is socially constructed, imprecise, arbitrary and incapable of definition or
demonstration. " 4
5.
Although historically s. 91(24) was perceived as a race-based power, 5 the Constitution of
Canada is "a living tree which, by way of progressive interpretation, accommodates and addresses
the realities of modem life." 6 Any definition of Canadian indigenous peoples in the context of
jurisdiction in relation to "Indians" under s. 91 (24) should be approached through the lens of
indigeneity. If a person has an indigenous ancestor, self-identifies as indigenous, and is accepted
by the indigenous community with which that person identifies, then he or she is ethnically
indigenous and, therefore, an "Indian" for the purposes of s. 91 (24 ), regardless of status under the
Indian Act.
6.
Self-identification is foundational to comprehensions of indigeneity in international law
and norms, as is the right of indigenous peoples to determine their own political structures and
membership. Self-identification and self-determination are also principles found in Canadian
jurisprudence, policy, and historical Canadian understandings of indigeneity.
A broad
interpretation of "Indians" to include all indigenous people of Canada is consistent with the
constitutional principle that legislative power is distributed exhaustively between the federal and
provincial governments under ss. 91 and 92 of the Constitution Act, 1867.
International Law and Other Jurisdictions
7.
Self-determination and self-identification are recognized as fundamental ptinciples in
international legal conventions on indigenous rights.
The International Court of Justice has
acknowledged "the principle of self-determination through the free and genuine expression of the
will of the peoples of the [territory in question]." 7
4
Australia, Expert Panel on Constitutional Recognition of Indigenous Australians, Recognising Aboriginal and
Torres Strait Islander Peoples in the Constitution: Report of the Exp ert Panel (Australia: Conunonwealth of
Australia, 2012). [BA Tab 17)
5
Daniels v Canada , 2013 FC 6, at para 568 , [2013] 2 FCR 268 [Trial Decision]. [BA Tab 2]
6
Re Sam e-Sex Marriage, 2004 SCC 79 at para 22, [2004] 3 SCR 698 [Same-Sex Marriage Ref erence]. [BA Tab 11]
7
Western Sahara , Advisory Opinion of 16 October 1975, [1975] ICJ Rep 68 at para 162. [BA Tab 29)
3
8.
The United Nations Declaration on the Rights of Indigenous Peoples ("UNDRIP")
explicitly acknowledges indigenous peoples' right to self-determination:
Indigenous peoples have the right to determine their own identity or membership in
accordance with their customs and traditions. By virtue of that right they freely
determine their political status and freely pursue their economic, social and cultural
development. 8
Canada has endorsed UNDRIP as an aspirational document. 9
9.
Under the Indigenous and Tribal Peoples Convention, 1989 ("ILO Convention"), a
people's self-identification as "indigenous" or "tribal" is a "fundamental criterion" for the
application of the convention. 10
10.
A working group of the Inter-American Commission on Human Rights of the Organization
of American States ("OAS") approved a "Proposed American Declaration on the Rights of
Indigenous Peoples" ("OAS Declaration"). Like the ILO Convention, the OAS Declaration states
that "[ s]elf-identification as indigenous peoples will be a fundamental criteri[ on] for determining
to whom this Declaration applies. The states shall respect the right to such self-identification as
indigenous, individually or collectively, in keeping with the practices and institutions of each
indigenous people." 11
11.
The principles of indigenous peoples' self-identification and self-determination of
governance and membership are also present in the jurisprudence and legislation of other
jurisdictions such as Australia, the United States of America, and Norway.
12.
Australian courts have adopted a three-part definition of indigeneity: descent, self-
identification, and communal recognition. The High Court of Australia in Commonwealth v.
8
United Nations Declaration on the Rights of Indigenous Peoples, 13 September 2007, GA Res. 611295, UNGAOR,
61 51 Sess., Supp. No. 49 Vol. III, UN Doc. A/61/49 (endorsed by Canada 12 November 2010), art 33 [ UNDRIP].
[BA Tab 27]
9
Aboriginal Affairs and Northern Development Canada, "Canada's Statement of Support on the United Nations
Declaration on the Rights of Indigenous Peoples" (Ottawa: AANDC, 12 November 2010). [BA Tab 14]
10
Indigenous and Tribal Peoples Convention , 1989, 27 June 1989, ILC, 76 1" Sess., art I [!LO Convention]. The ILO
Convention has been ratified by 22 countries, although not by Canada. [BA Tab 19]
11
Organization of American States, Inter-American Commission on Human Rights, Drcift of the Inter-American
Declaration on the Rights of Indigenous Peoples, OEA/Ser.K/XVI, GT/DADIN/doc.334/08 rev. 11 , corr. I (2015)
art I.2. Canada is a member of the OAS, although it has withdrawn from negotiations on the OAS Declaration. [BA
Tab 22]
4
Tasmania 12 considered the definition of"Aboriginal" in the context of s. 51 (xx vi) of the Australian
Constitution, which grants the power to legislate with respect to "the people of any race for whom
it is deemed necessary to make special laws". 13 In concurring reasons, Deane J. defined "Australian
Aboriginal" as follows:
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 recognized by the Aboriginal
community as an Aboriginal. 14
This three-part test for indigeneity was adopted by the majority of the High Court in Mabo v.
Queensland (No. 2), 15 in reference to the identification of indigenous people holding native title:
Membership of the indigenous people depends on biological descent from the
indigenous people and on mutual recognition of a particular person's membership
by that person and by the elders or other persons enjoying traditional authority
among those people. 16
13.
In the United States, the government allows "federally recognized tribes" to determine their
own membership. 17 One of the criteria for an indigenous group to be acknowledged by the federal
American Bureau of Indian Affairs as an "Indian Tribe" under the Procedures for Establishing
that an American Indian Group Exists as an Indian Tribe, 18 and thereby to become eligible for
government programs and services, 19 is that the petitioning group must be a "distinct community".
Evidence of being a distinct community may include social and marriage relationships between
members, shared spiritual practices, and cultural patterns including language, kinship organization,
and religious beliefs. 20 Thus, communal self-determination is an indicator of indigeneity in the
12
The Commonwealth ofAustralia v Tasmania , [1983] HCA 2 l , (1983) 158 CLR l [Tasmanian Dam Case]. [BA
Tab 23]
13
Commonwealth ofAustralia Constitution Act I 900 (Cth), s 51 (xx vi). [BA Tab 18]
14
Tasmanian Dam Case, supra note 12 at 55 l (Deane J.). [BA Tab 23]
15
Mabo v Queensland (No . 2), [1992] HCA 23 , (1992) 175 CLR l [Mabo]. [BA Tab 21]
16
Ibid at para 83. [BA Tab 21]
17
Seigfried Wiessner, "Rights and Status oflndigenous Peoples: A Global Comparative and International Legal
Analysis" (1999) 12:57 Harv Hum Rts J at 64 [Weissner]. [BA Tab 38]
18
United States of America, Bureau of Indian Affairs, Procedures for Establishing than an Indian Group Exists as
an Indian Tribe , 25 CFR § 83.1 [Regulations]. [BA Tab 28]
19
Ibid at§ 83 .2. [BA Tab 28]
20
Ibid at§ 83.7(b). [BA Tab 28]
5
United States and a requirement for a group's eligibility to access government programs and
services as an Indian tribe.
14.
In Norway, the indigenous people are known as the Sami.2 1 As Norway has ratified the
ILO Convention, 22 Norwegian legislation that relates to the Sarni people is founded on the
principle of self-identification. In order to register as an elector under the Sarni Act, a person must
self-identify as Sarni and either (a) speak Sarni as his or her domestic language, (b) have a parent,
grandparent, or great-grandparent who speaks Sarni as his or her domestic language, or (c) be the
child or a person who has been registered in the Sarni electoral register. 23 Race is not a factor in
the determination of Sarni identity under the Sarni Act.
15.
While international declarations and other domestic jurisdictions do not define indigenous
ethnicity in an identical manner, three common factors recur in international law: indigenous
ancestry, self-identification, and self-determination. The MFC submits that these three factors are
also at the core of the meaning of "Indians" in the constitutional context of section 91 (24 ).
Canadian Law, History, and Policy
16.
The government of Canada has recognized indigenous peoples' right to self-determination
in its policies, as well as through its respect for international law. Policies such as the "Inherent
Right Policy" recognize the Aboriginal right to self-government, which is an expression of the
right to self-determination. 24 Similarly, the Royal Commission on Aboriginal Peoples explicitly
acknowledged the right of indigenous peoples to self-determination in its Final Report. 2s The
Indian Act was amended in 1985 to allow bands to determine their own membership and establish
their own membership rules. 26
21
The Sarni are also known in English by the exonyms " Lapps" or "Laplanders".
International Labour Organization, "Ratifications of C 169- Indigenous and Tribal Peoples Convention, 1989 (No.
169)", (5 September 1991). [BA Tab 20)
23
The Sarni Act (NO), 1987/56, s 2-6. [BA Tab 24)
24
Aboriginal Affairs and Northern Development, "The Government of Canada's Approach to Implementation of
Inherent Right and the Negotiation of Aboriginal Self-Government", (Ottawa: Aboriginal Affairs and Northern
Development, 2010). [BA Tab 15)
25
Report of the Royal Commission on Aboriginal Peoples: Restructuring the Relationship , vol 2 (Ottawa: Supply
and Services Canada, 1996) at 165. [BA Tab 37)
26
Indian Act, RSC, 1985, c I-5 , s 10. [BA Tab 42)
22
6
17.
Historical Canadian understandings of indigeneity also support the inclusion of all
ethnically-indigenous peoples under s. 91(24). The trial judge made extensive findings of facts in
this regard. 27 Three other Metis examples support those findings:
(a) In an 1845 Report on the Affairs of the Indians in Canada, Metis or "half-breeds" were
identified as a distinct group within the broader term "Indians'', and their treatment as
"Indians" depended on whether "they [were] adopted by the Tribe with which they [were]
connected, and live[ d] , as Indians among them." 28
(b) The 1936 "Ewing Commission Report" defined "Metis" or "half-breed" as "a person of
mixed blood, white and Indian, who live[ d] the life of the ordinary Indian, and include[ d]
a non-Treaty Indian" but excluded persons of "mixed blood" who had settled down as
farmers and did not need or desire public assistance. 29
(c) The Province of Alberta's 1984 report titled "Report of the MacEwan Joint Committee to
Review the Metis Betterment Act and Regulations: Foundations for the Future of Alberta's
Metis Settlements" defined a "Metis" person as an "an individual of aboriginal ancestry
who identifies with Metis history and culture." 30
18.
The principles of self-identification and self-determination of Aboriginal people as
indigenous are also present in Canadian common law.
27
Trial Decision, supra note 5 at paras 183 to 525. [BA Tab 2]
Canada, Legislative Assembly of the Province of Canada, "Report on the Affairs of the Indians in Canada" by D.
Daly in Appendix to the sixth volume of the journals of the Legislative Assembly of the Province of Canada, from the
2nd day ofJune to the 28th day ofJuly, 1847, both days inclusive, and in the tenth and eleventh years of the reign of
Our Sovereign Lady Queen Victoria, being the third session of the second provincial Parliament of Canada, session
1847 (Montreal: R. Campbell, 1847). [BA Tab 33) See also Canada, Legislative Assembly of the Province of
Canada, "Report on the Affairs ofindians in Canada", by Sir C. Bagot in Appendix E.E.E. to the fourth volume of
the journals of the Legislative Assembly of the Province of Canada, 28th day of November, 1844, to the 29th day of
March, 1845, eighth year of the reign of Queen Victoria: being the first session of the second Provincial Parliament
of Canada (Montreal: R. Campbell, 1845). [BA Tab 32]
29
Alberta, Report of the Royal Commission Appointed to Investigate the Conditions of th e Half Breed Population in
Alberta , (Alberta: Department of Lands and Mines, 1936), at4 . [BA Tab 31]
30
Alberta, Report of the MacEwan Joint Committee to Review the Metis Betterment Act and Regulations:
Foundations for the Future ofAlberta 's Metis Settlements (Edmonton: Alberta Municipal Affairs, 1984). [BA Tab
30]
28
7
(a) Self-identification of indigeneity is at the core of sentencing considerations for Aboriginal
offenders under s. 718 .2( e) of the Criminal Code in light of the Gladue decision.
31
Courts
consider an offender's self-identification as Aboriginal to be sufficient to trigger the
application of Gladue, 32 although this may not necessarily result in an adjusted sentence. 33
Similarly, certain government entities 34 and government-funded organizations 35 offer
services to those who self-identify as indigenous.
(b) In Cunningham, this Court acknowledged the importance of self-determination in relation
to membership in an indigenous community: "the courts must approach the task of
reviewing membership requirements with prudence and due regard to the Metis' own
conception of the distinct features of their community." 36
(c) In Powley, this Court recognized that an inquiry into Metis identity "must take into account
both the value of community self-definition, and the need for the process of identification
to be objectively verifiable." 37
The Court looked to self-identification, ancestral
connection, and community acceptance (a reflection of the collective right to selfdetennination) as the three factors indicative of Metis identity.38
Purpose of Section 91(24)
19.
The application of s. 91 (24) to all people in Canada who are ethnically indigenous is further
supported by the correct understanding of the purpose and function of s. 91 (24) as a head of power
under the Constitution Act, I 867.
31
R v Gladue, [1999] I SCR 688 , 171 DLR (4 1h) 385 [Gladue]. [BA Tab 6]
R v Judge , 2013 ONSC 6803 at paras 20 I, 202, and 321 , [2013] OJ No 5102 [Judge]. [BA Tab 9] See also R v
Corbier, 2007 ONCJ 712 at para 192, [2007] OJ No 5547 [Corbier] ; [BA Tab 5] Legal Services Society, Gladue
Primer (Legal Services Society, 2011) at 7. [BA Tab 36] However, at least one court has instead applied the three
Powley factors in assessing whether an individual was an "Aboriginal offender": R v JN, 2013 ONCA 251 at para
25 , [2013) OJ No 1834. [BA Tab 8]
33 R v Ipeelee, 2012 SCC 13 , at para 60, [2012] I SCR 433 . [BA Tab 7]
34
See for example, Corbier, supra note 32 at para 197 regarding eligibility policies of Corrections Services Canada.
[BA Tab 5]
35
See for example, Robinson v Canada , 2010 TCC 649 at paras. 38 , 83 , and 87, [2010] T.C.J. No. 534, regarding
eligibility for services from the Aboriginal Legal Services of Toronto. [BA Tab 13] See also Judge, supra note 32
at para 321 . [BA Tab 9]
36
Alberta (Aboriginal Affairs and Northern Development) v Cunningham , 2011 SCC 37 at para 82, [2011] 2 S.C.R.
670 [Cunningham]. [BA Tab 1]
37
R v Powley, 2003 SCC 43 at para 29, [2003] 2 SCR 43 [Powley]. [BA Tab 10]
38 Ibid at para 30. [BA Tab 10)
32
8
20.
Federal jurisdiction under s. 91 (24) is broad and limited only by the allocation of power to
the provincial governments under s. 92. 39 Legislative power is fully distributed between the federal
and provincial governments, such that there are no gaps: "the whole oflegislative power, whether
exercised or merely potential, is distributed as between Parliament and the legislatures ... In
essence, there is no topic that cannot be legislated upon, though the particulars of such legislation
may be limited by, for instance, the Charter." 40 This principle of exhaustiveness is "an essential
characteristic of the federal division of powers". 41
21.
The exhaustive distribution of legislative power between the provincial and federal
governments means that one or the other aspect of the Crown - either the provinces or the federal
government - has always had the jurisdiction to legislate over the indigenous peoples of Canada. 42
The determination that indigenous people fall under the federal legislative power over "Indians"
does not necessarily create any Crown obligation to that group that did not already exist.
22.
This stands in contrast with the function and purpose of other constitutional provisions.
For example, the recognition of rights under s. 35(1) creates corresponding duties on the
government, which explains the need for limits on the scope of s. 35(1) rights: 43
Whenever a right exists, a correlative obligation can be found. As W.N. Hohfeld
observed: "[A] duty is the invariable correlative of that legal relation which is
most properly called a right or claim" ... "A duty or a legal obligation is that
which one ought or ought not to do. 'Duty' and 'right' are correlative terms.
When a right is invaded, a duty is violated." ... This is the case with Aboriginal
rights in Canada. Wherever an Aboriginal right exists a correlative governmental
obligation can be found. 44
23. The question of whether indigenous peoples have Aboriginal rights under s. 35(1) is therefore
a separate question from the issue of legislative jurisdiction under s. 91 (24). The purpose of s.
35(1) is to recognize collective rights, which are necessarily defined by the limitations imposed by
other competing rights:
39
Reference re Secession of Quebec, [ 1998) 2 SCR 217 at para 56, 161 DLR (4 1h) 385 [Quebec Reference]. [BA Tab
12]
40
Sam e-Sex Marriage Reference, supra note 6 at para 34. [BA Tab 11)
41
Ibid; [BA Tab 11) see also Trial Decision, supra note 5 at para 542. [BA Tab 2)
42
Subject to limitations such as the Charter and indigenous peoples' inherent right to self-government.
43
Powley, supra note 37 at para 29. [BA Tab 10)
44
John Borrows, " Let Obligations Be Done", Aboriginal Legal Issues: Cases, Materials & Commentary, 3rd ed., at
436-437. [BA Tab 35)
9
Establishing [the boundaries of rights] requires consideration of the guaranteed
right's relationship with competing rights and sometimes leads to the necessary
finding that rights come with corresponding obligations."45
24. Other examples distinct from legislative jurisdiction are the Natural Resources Transfer
Agreements ("NRT As"). Those agreements were scheduled to the Constitution Act, 193 0 46 to
place the provinces of Manitoba, Saskatchewan and Alberta in the same position with respect to
Crown lands, mines, minerals and royalties as the original provinces under s. l 09 of the
Constitution Act, 1867. The NRTAs conveyed federal Crown lands within each of those three
provinces, subject to any existing trusts or interests. Several pre-existing Indian treaties provided
such interests to Indians for reserve lands and hunting, fishing and trapping rights to lands in what
became those provinces. Given this, the NRTAs were enacted:
to protect the hunting rights of the beneficiaries of Indian treaties and the Indian
Act in the context of Crown land in the provinces ... The exception was that
Indians, a subset of the population with a particular historical relationship to the
Crown, would not thereby be deprived of certain specified hunting and fishing
rights. 47
Unlike Indians who were offered treaty by the Crown in recognition of their Aboriginal rights and
title, the Metis were offered scrip in part as recognition of their interest in Metis lands. As a result,
the Metis did not share in the hunting and fishing rights specified for treaty Indians under the
Indian treaties and similarly, do not share in the corresponding protected "Indian" rights under the
NRTAs.
25. Thus, while "individual elements of the Constitution are linked to the others, and must be
interpreted by reference to the structure of the Constitution as a whole",48 s. 91(24) performs a
specific function and serves a different constitutional purpose than, for example, s. 35(1) of the
Constitution Act, 1982 or the NRTAs. The meaning of the term "Indians" under s. 91(24) is
specific to the division of powers context, and can properly differ from definitions of that same
term in other constitutional contexts.
45
Multani v Commission scolaire Marguerite-Bowgeoys, 2006 SCC 6 at para 147, [2006] 1 SCR 256. [BA Tab 3]
See also Zechariah Chafee, "Freedom of Speech in Wartime" (19 19) 32 Harvard L Rev 932 at 957; [BA Tab 39]
Isaiah Berlin, "Two Concepts of Liberty", Four Essays on Liberty (Oxford: Oxford University Press, 1969). [BA
Tab 34]
46
Natural Resources Tran sf er Agreement, incorporated as Schedule (1) to the Constitution Act, 1930. [BA Tab 43]
47
R v Blais, 2003 SCC 44 at para 32, [2003] 2 SCR 236. [BA Tab 4]
48
Quebec Ref erence, supra note 39 at para 50. [BA Tab 12]
10
26. In conclusion, the MFC supports an inclusive definition of indigeneity for the purposes of s.
91(24) based on "self-identification, ancestral connection, and community acceptance".
49
This
approach is consistent with international legal norms, as well as with Canadian law, policy, and
historical understandings of indigeneity. If a person has an indigenous ancestor, self-identifies as
an indigenous person, and is accepted by the indigenous community with which the person
identifies, the MFC submits that he or she is an "Indian" for the purposes of s. 91 (24).
PART IV - SUBMISSIONS ON COSTS
27. The MFC does not seek costs of this intervention.
PART V-NATURE OF THE ORDER SOUGHT
28. The MFC seeks an order that it be granted leave to make oral argument for 20 minutes at the
hearing of this matter.
~"
Jo~s
Solicitors for the Intervener, Metis Federation of Canada
49
Powley, supra at para 30.
11
PART VI-TABLE OF AUTHORITIES
Cases
Alberta (Aboriginal Affairs and Northern Development) v Cunningham,
2011 sec 37, r2011J 2 scR 670.
Daniels v Canada, 2013 FC 6, [2013] 2 FCR 268 .
Para.
18
4, 17
Multani v Commission scolaire Marguerite-Bourgeoys, [2006] 1 SCR 256,
2006 sec 6.
23
R v Blais, 2003 sec 44, [2003] 2 SCR 236.
24
R v Corbier, 2007 ONCJ 712, [2007] OJ No 5547.
18
R v Gladue, [1999] 1 SCR 688, 171 DLR (4th) 385.
18
R v Ipeelee, 2012 SCC 13, [2012] 1 SCR 433.
18
R vJN, 2013 ONCA 251, [2013] OJ No 1834.
18
R vJudge, 2013 ONSC 6803, [2013] OJ No 5102.
18
R v Powley, 2003 SCC 43, [2003] 2 SCR 43.
18, 23, 27
Reference re Same-Sex Marriage, 2004 SCC 79, [2004] 3 SCR 698.
4,20
Reference re Secession of Quebec, [1998] 2 SCR 217, 161 DLR (4th) 385.
20,25
Robinson v Canada, 2010 TCC 649, [2010] TCJ No 534.
18
Policy
Para.
Aboriginal Affairs and Northern Development Canada, "Canada's
Statement of Support on the United Nations Declaration on the Rights of
Indigenous Peoples" (Ottawa: AANDC, 12 November 2010).
8
Aboriginal Affairs and N orthem Development, "The Government of
Canada's Approach to Implementation oflnherent Right and the
Negotiation of Aboriginal Self-Government", (Ottawa: AANDC, 2010).
16
International Authorities
Para.
American Anthropological Association, "Statement on 'Race' and
Intelligence" (adopted December 1994). See also UNESCO, "Declaration
on Race and Racial Prejudice'', 27 November 1978.
4
Australia, Expert Panel on Constitutional Recognition of Indigenous
Australians, Recognising Aboriginal and Torres Strait Islander Peoples in
the Constitution: Report of the Expert Panel (Australia: Commonwealth of
Australia, 2012).
4
12
Commonwealth ofAustralia Constitution Act 1900 (Cth), s 51(xxvi).
12
Indigenous and Tribal Peoples Convention, 1989, 27 June 1989, ILC, 76th
Sess.
9
International Labour Organization, "Ratifications of C 169- Indigenous and
Tribal Peoples Convention, 1989 (No. 169)", (5 September 1991).
14
Mabo v Queensland (No 2), [1992] HCA 23, (1992) 175 CLR 1.
12
Organization of American States, Inter-American Commission on Human
Rights, Draft of the Inter-American Declaration on the Rights of Indigenous
Peoples, OEA/Ser.K/XVI, GT/DADIN/doc.334/08 rev. 11, corr. 1 (2015).
10
The Commonwealth ofAustralia v Tasmania, [1983] HCA 21, (1983) 158
CLR 1.
12
The Sarni Act (NO), 1987/56.
14
United Nations Educational, Scientific and Cultural Organization,
"Declaration on Race and Racial Prejudice", 27 November 1978.
4
United Nations Educational, Scientific and Cultural Organization, Four
Statements on the Race Question, (Paris: UNESCO, 1969).
4
United Nations Declaration on the Rights ofIndigenous Peoples, 13
September 2007, GA Res. 611295, UNGAOR, 61 st Sess., Supp. No. 49 Vol.
III, UN Doc. A/61149 (endorsed by Canada 12 November 2010).
8
United States of America, Bureau ofindian Affairs, Procedures for
Establishing than an Indian Group Exists as an Indian Tribe, 25 CFR § 83 .1.
13
Western Sahara, Advisory Opinion of 16 October 1975, [1975] ICJ Rep 68.
7
Secondary Sources and Reports
Para.
Alberta, Report of the MacEwan Joint Committee to Review the Metis
Betterment Act and Regulations: Foundations for the Future ofAlberta's
Metis Settlements (Edmonton: Alberta Municipal Affairs, 1984).
17
Alberta, Report of the Royal Commission Appointed to Investigate the
Conditions of the Half-Breed Population in Alberta, (Alberta: Department of
Lands and Mines, 1936).
17
Canada, Legislative Assembly of the Province of Canada, "Report on the
Affairs of Indians in Canada'', by C. Bagot in Appendix E.E.E. to the fourth
volume of the journals of the Legislative Assembly of the Province of
Canada, 28th day of November, 1844, to the 29th day of March, 1845, eighth
year of the reign of Queen Victoria : being the first session of the second
Provincial Parliament of Canada (Montreal: R. Campbell, 1845).
18
13
Canada, Legislative Assembly of the Province of Canada, "Report on the
Affairs of the Indians in Canada" by D. Daly in Appendix to the sixth volume
of the journals of the legislative Assembly of the Province of Canada, from
the 2nd day ofJune to the 28th day ofJuly, 1847, both days inclusive, and in
the tenth and eleventh years of the reign of Our Sovereign lady Queen
Victoria, being the third session of the second provincial Parliament of
Canada, session 1847 (Montreal: R. Campbell, 1847).
18
Isaiah Berlin, "Two Concepts of Liberty", Four Essays on liberty (Oxford:
Oxford University Press, 1969).
23
John Borrows, "Let Obligations Be Done", Aboriginal Legal Issues: Cases,
Materials & Commentary, 3rd ed., at 436-437 .
22
Legal Services Society, Gladue Primer (Legal Services Society, 2011 ).
18
Report of the Royal Commission on Aboriginal Peoples: Restructuring the
Relationship, vol 2 (Ottawa: Supply and Services Canada, 1996).
16
Seigfried Wiessner, "Rights and Status of Indigenous Peoples: A Global
Comparative and International Legal Analysis" (1999) 12:57 Harv Hum Rts
J at 64.
13
Zechariah Chafee, "Freedom of Speech in Wartime" (1919) 32 Harvard L
Rev 932 at 957.
23
14
PART VII-STATUTES
Statute
Para.
Constitution Act, 1867, ss. 91 and 92.
3, 4, 5, 6, 15, 17, 19,
20,23,25,26
Constitution Act, 1982, being Schedule B to the Canada Act 1982
(U.K.), 1982, c. 11, s. 35.
22, 23, 25
Indian Act, R.S.C., 1985, c. 1-5.
16
Natural Resources Transfer Agreement, incorporated as Schedule (1)
to the Constitution Act, 1930.
24, 25