The geek with a cynical view

Tuesday, January 8, 2013

Federal Court of Canada Date: 20130108 Docket: T-2172-99 Citation: 2013 FC 6

Cour fédérale

Date: 20130108

Docket: T-2172-99

Citation: 2013 FC 6

BETWEEN:

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

REASONS FOR JUDGMENT

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TABLE OF CONTENTS

Para.

I. Introduction............................................................................................................... 1

II. Court Summary......................................................................................................... 19

III. Parties........................................................................................................................ 29

A. Gabriel Daniels................................................................................................ 30

B. Leah Gardner ................................................................................................... 34

C. Terry Joudrey................................................................................................... 37

D. The Minister of Indian Affairs and Northern Development........................... 38

E. The Attorney General of Canada .................................................................... 39

F. Congress of Aboriginal Peoples...................................................................... 40

IV. Discretion to Decide ................................................................................................. 48

V. Nature of the Problem............................................................................................... 84

VI. Problem of Definition...............................................................................................111

A. Non-status Indians...........................................................................................116

B. Métis ................................................................................................................124

VII. Witnesses ..................................................................................................................131

A. Ian Cowie (Plaintiffs’ Witness).......................................................................132

B. John Leslie (Plaintiffs’ Witness) .....................................................................137

VIII. Historical Expert Witnesses......................................................................................147

A. William Wicken (Plaintiffs’ Witness).............................................................147

B. Stephen Patterson (Defendants’ Witness).......................................................152

C. Gwynneth Jones (Plaintiffs’ Witness).............................................................161

D. Sebastian Grammond (Plaintiffs’ Witness).....................................................170

E. Alexander von Gernet (Defendants’ Witness)................................................175

IX. Historical Evidence...................................................................................................183

A. Pre-Confederation Era.....................................................................................183

(1) Atlantic Canada......................................................................................184

(a) Nova Scotia...................................................................................211

(b) New Brunswick ............................................................................225

(d) Newfoundland and Labrador........................................................229

(2) Quebec/Ontario (Upper/Lower Canada) ...............................................233

(a) Kahnawake ...................................................................................256

(b) Six Nations/Grand River ..............................................................259

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(3) Pre-Confederation Statutes ....................................................................268

(4) Pre-Confederation Reports re “Indians”................................................288

(5) Pre-Confederation Treaties ....................................................................302

(6) Synopsis: Indian Power Pre-Confederation...........................................319

B. Confederation ..................................................................................................324

(1) Genesis ...................................................................................................324

(2) Objects and Purposes of Confederation.................................................339

C. Post-Confederation..........................................................................................355

(1) Rupert’s Land.........................................................................................355

(2) Post-Confederation Statutes – 1867-1870 .............................................360

(3) Aboriginal Population of the Northwest................................................369

(4) The

Manitoba Act 1870/The Scrip System............................................385

D. Other Examples – Half-breeds and Section 91(24) ........................................423

(1) Adhesion to Treaty 3..............................................................................424

(2) The Reserve and Industrial School at St. Paul de Métis........................437

(3) Liquor Policy..........................................................................................445

(4) “Half-Breeds” whose Ancestors took Scrip ..........................................453

(5) Other Examples of Jurisdiction over Non-Status Indians .....................459

E. Modern Era......................................................................................................469

(1) Pre-Patriation..........................................................................................469

(2) Post-Patriation........................................................................................485

F. Treaties and Half-Breeds.................................................................................513

X. Legal Analysis and Conclusions...............................................................................526

A. Section 91(24) - Métis and Non-Status Indians..............................................526

(1) Introduction............................................................................................526

(2) Interpretation Principles.........................................................................534

(3) Judicial Guidance...................................................................................545

B. Fiduciary Duty.................................................................................................602

C. Duty to Negotiate ............................................................................................610

XI. Costs .........................................................................................................................618

XII. Conclusion ................................................................................................................619

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PHELAN J.

I. INTRODUCTION

[1] The critical question posed in this litigation is straightforward – Are non-status Indians and

Métis [MNSI], identified as “Indians” under s 91(24) of the

Constitution Act, 1867, 30 & 31

Victoria, c 3 (UK) [the Constitution]? Section 91(24) reads:

91.

It shall be lawful for the

Queen, by and with the Advice

and Consent of the Senate and

House of Commons, to make

Laws for the Peace, Order, and

good Government of Canada, in

relation to all Matters not

coming within the Classes of

Subjects by this Act assigned

exclusively to the Legislatures

of the Provinces; and for greater

Certainty, but not so as to

restrict the Generality of the

foregoing Terms of this

Section, it is hereby declared

that (notwithstanding anything

in this Act) the exclusive

Legislative Authority of the

Parliament of Canada extends

to all Matters coming within the

Classes of Subjects next

hereinafter enumerated; that is

to say,

…

24. Indians, and Lands reserved

for the Indians.

91.

Il sera loisible à la Reine, de

l’avis et du consentement du

Sénat et de la Chambre des

Communes, de faire des lois

pour la paix, l’ordre et le bon

gouvernement du Canada,

relativement à toutes les

matières ne tombant pas dans

les catégories de sujets par la

présente loi exclusivement

assignés aux législatures des

provinces; mais, pour plus de

garantie, sans toutefois

restreindre la généralité des

termes ci-haut employés dans le

présent article, il est par la

présente déclaré que

(nonobstant toute disposition

contraire énoncée dans la

présente loi) l’autorité

législative exclusive du

parlement du Canada s’étend à

toutes les matières tombant

dans les catégories de sujets cidessous

énumérés, savoir :

…

24. Les Indiens et les terres

réservées pour les Indiens.

[2] The canvas over which the parties have painted the answer encompasses Canadian history

virtually from the time of Champlain in Passamaquoddy Bay in 1603 to the present day. The reach

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of time and space makes this case a difficult one, not amenable to the same organization and

analysis as has been the case with specific disputes over specific agreements or treaties affecting

natives. However, for ease of organization, these Reasons generally follow a chronological

framework.

[3] The Plaintiffs ask this Court to issue the following declarations:

(a) that Métis and non-status Indians are “Indians” within the meaning of the expression

“Indians and lands reserved for Indians” in s 91(24) of the

Constitution Act, 1867;

(b) that the Queen (in right of Canada) owes a fiduciary duty to Métis and non-status

Indians as Aboriginal people;

and negotiated with, in good faith, by the federal government on a collective basis

through representatives of their choice, respecting all their rights, interests and needs

as Aboriginal peoples.

[4] In brief and non-exhaustive summary, the Plaintiffs ground their claim on the following

basis:

(a) the Métis people in Rupert’s Land and Northwest Territories were part of the

peoples called “aborigines” and jurisdiction over them was transferred to the federal

government. Thereafter, Métis were generally considered part of, although often

distinct from, “Indians” and were treated as Indians in legislation and practice.

(b) non-status Indians are Indians to whom, from time to time, the

Indian Act, RSC

1985, c I-5, did not apply but had either maternal or paternal ancestors who were

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Indians, or any person who self-identifies as an Indian and is mutually accepted by

an Indian community, or branch or council of an Indian association or organization.

Indians as Indians pursuant to s 91(24), they have suffered deprivations and

discrimination in the nature of: lack of access to health care, education and other

benefits available to status Indians; lack of access to material and cultural benefits;

being subjected to criminal prosecutions for exercising Aboriginal rights to hunt,

trap, fish and gather on public lands; and being deprived of federal government

negotiations on matters of Aboriginal rights and agreements.

[5] The Defendants’ resist the Plaintiffs’ claims on several grounds. The principal grounds are

that no declaration can or should issue because there are insufficient facts and grounds for such

relief; that Métis are not and were not either in fact or law or practice considered “Indians”; that

there is no such group legally known as “non-status Indians”; that the allegations of deprivation and

discrimination are denied and that the forms of relief required of rights to consultation and

negotiations are either not available to Métis and non-status Indians or in any event, all legal

obligations have been met.

[6] This matter came before this Court by way of an action for a declaration by the three

individuals (Harry Daniels having died before the case was heard) and the organization named as

Plaintiffs. The manner of bringing this case has been an issue between the parties even though the

litigation was financed by the very government that opposes even the manner of proceeding.

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[7] It is a definitional minefield to use terms such as “Indian” or “Aboriginal” when the purpose

of the litigation is to provide some definition of those words which appear in different places and

different contexts in the Constitution. The term “native” or “native people” is an effort to find a

more neutral term for those first nations peoples and their descendants. In a somewhat similar

fashion the Court has used the term “Euro-Canadian” to identify the non-native group of

predominantly Caucasian persons fully recognizing that even this effort to avoid the colloquial term

“white” is not entirely accurate.

[8] The parties have outlined a somewhat consistent history of early relations between firstly the

French government and the native people and then between the British government and the native

people particularly in eastern Canada. The parties’ respective perspectives start to drift apart with

the lead up to Confederation and thereafter. While most of the actual events are not in dispute, their

meaning and significance to the key issue in this case is strongly debated.

[9] The Plaintiffs’ case commenced with a review of the pre- and post-repatriation of the

Constitution as it related to the native people. The evidence seemed designed to show the nature of

the problem of this unresolved issue, its impact on the people most directly affected, the MNSI, and

to some extent the alleged duplicitous dealings by Canada because of the recognition within

government that Canada did indeed have jurisdiction over MNSI.

[10] The Plaintiffs’ case was made more difficult by the Defendants’ refusal to admit numerous

documents which came from its own archives and departments introduced to show the manner in

which these two groups were viewed by government and how these two groups were treated.

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[11] It was a central theme of the Plaintiffs’ case that the historical evidence established that it

was the purpose and intent of s 91(24) that non-status Indians (being by description Indians) and

Métis were “Indians” and that following Confederation until at least the 1930s the federal

government often treated many Métis groups as if they were “Indians” subject to federal

jurisdiction. This, the Plaintiffs contend, was done in legislation, regulation and in the practices and

policies of the federal government.

[12] The Defendants adopted a more traditional approach to the organization of the case in a

chronological format. It was their position that:

(a) historical evidence and cases from the Supreme Court of Canada establish that the

word “Indian” in s 91(24) was not meant to include the distinct peoples and

communities known as the Métis.

(b) with respect to the question of non-status Indians, the Defendants say that legislation

enacted under s 91(24) must draw a line between those who are considered Indians

and those who are not. The Plaintiffs claim that trying to determine the natural limits

of Parliament’s jurisdiction (absent actual or proposed legislation) is an impossible

task.

[13] In these Reasons, the Court has dealt with the Defendants’ position that this is too difficult a

case to decide, that the definitional difficulties of definition of who falls within the term “Indian” in

s 91(24) should preclude a remedy. It is the Court’s view that there is a live, justiciable issue for

which the difficulties, real or otherwise, cannot be a reason to deny people a remedy where

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appropriate. In general terms persons have a right to know who has jurisdiction over them and the

adage “where there is a right, there is a remedy” is applicable.

[14] It is a central theme of the Defendants’ argument that this Court ought not to decide this

matter because, in summary, it is a theoretical matter which will resolve nothing. The Defendants

also urge the Court not to exercise its discretion to grant one or more of the declarations requested.

[15] The Defendants’ position is that none of the declarations will do anything but lead to further

litigation. It is their thesis that what is at issue between the parties is alleged discrimination as

between the treatment of MNSI and status Indians; a matter which should be resolved by Charter or

human rights proceedings.

[16] A more complete review of the preliminary issues is canvassed in paragraphs 48-83.

[17] The Plaintiffs put great reliance on the “living tree” doctrine for a purposive approach to be

progressively applied to the interpretation of s 91(24). They reject the historical approach said to be

prevalent in such cases as in

In the Matter of a Reference as to whether the Term “Indians” in Head

24 of Section 91 of the British North America Act, 1867, includes Eskimo Inhabitants of the

Province of Quebec

, [1939] SCR 104, [1939] 2 DLR 417 [In Re Eskimo Reference].

[18] The interpretative principles which the Court must apply to these historical facts is made

more nuanced than the Plaintiffs concede by the Supreme Court of Canada’s comments in

R v Blais,

Page: 10

2003 SCC 44, [2003] 2 SCR 236 [

Blais], at paragraph 40, which suggests a limit on the “living

tree”, a need to stay anchored in historical context and to avoid “after-the-fact largesse”.

40 This Court has consistently endorsed the living tree principle as

a fundamental tenet of constitutional interpretation. Constitutional

provisions are intended to provide “a continuing framework for the

legitimate exercise of governmental power”:

Hunter v. Southam Inc.,

[1984] 2 S.C.R. 145 ,

per Dickson J. (as he then was), at p. 155. But

at the same time, this Court is not free to invent new obligations

foreign to the original purpose of the provision at issue. The analysis

must be anchored in the historical context of the provision. As

emphasized above, we must heed Dickson J.’s admonition “not to

overshoot the actual purpose of the right or freedom in question, but

to recall that the

Charter was not enacted in a vacuum, and must

therefore ... be placed in its proper linguistic, philosophic and

historical contexts”:

Big M Drug Mart, supra, at p. 344; see Côté,

supra

, at p. 265. Dickson J. was speaking of the Charter, but his

words apply equally to the task of interpreting the

NRTA. Similarly,

Binnie J. emphasized the need for attentiveness to context when he

noted in

R. v. Marshall, [1999] 3 S.C.R. 456, at para. 14, that

“'[g]enerous' rules of interpretation should not be confused with a

vague sense of after-the-fact largesse.” Again the statement, made

with respect to the interpretation of a treaty, applies here.

II. COURT SUMMARY

[19] The Plaintiffs’ declaratory relief is for a determination of the meaning of a head of power

under the Constitution, s 91(24) that the term “Indian”, as used in that head of power, encompasses

Métis and non-status Indians. This is not a s 35 of the Constitution case nor the interpretation or

application of particular rights either under the Constitution or under specific agreements, nor is it

about Aboriginal rights.

[20] This is an appropriate circumstance and the Plaintiffs have sufficient standing for this Court

to make a declaratory order. The declaration with respect to s 91(24) is granted; the other two

declarations, ancillary in nature, are dismissed.

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[21] The timeframe covered by this case commences with among the first interactions between

French colonial government up to the very near past.

[22] During the colonial era, particularly the British colonial era, people of mixed European and

native ancestry were largely considered as Indians. This was furthered by the colonial government’s

attempt to grant status as Indians to natives – the first efforts at inclusion/exclusion notions through

“marrying in – marrying out” provisions. Métis and others of mixed ancestry in the lands

administered by the Hudson’s Bay Company were also generally classed as natives or Indians and

often described as “half breeds”.

[23] With Confederation and the take over of responsibility for the lands and people in the areas

of the Hudson’s Bay Company, it was important to have a broad power over those who were not

part of Euro-Canadian society to facilitate expansion and development of the new country. A

purposive approach to constitutional interpretation is mandated by the Supreme Court of Canada.

[24] In the absence of any record of debates or discussions concerning this Indian Power, the

Court had to rely on what was done just before and for some period after Confederation to give

context and meaning to the words of s 91(24).

[25] The evidence concerning non-status Indians establishes that such persons were considered

within the broad class of “Indians”. The situation regarding Métis was more complex and in many

instances including in the Red River area, Métis leadership rejected any inclusion of Métis as

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Indians. Nevertheless, Métis generally and over a greater area were often treated as Indians,

experienced the same or similar limitations imposed by the federal government, and suffered the

same burdens and discriminations. They were at least treated as a separate group within the broad

class of “Indians”.

[26] In more recent times those deprivations have been acknowledged by the federal

government:

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.

[27] In the same vein, the federal government had largely accepted the constitutional jurisdiction

over non-status Indians and Métis until the mid 1980s when matters of policy and financial

concerns changed that acceptance.

[28] Consistent with past Supreme Court decisions which taught towards a more inclusive

interpretation of the term “Indian”, such interpretation must stand on its own neither undermined

nor supported by s 35. A more inclusive interpretation is consistent with the evidence in this case

and facilitates reconciliation with the broad group of native peoples and their descendants.

III. PARTIES

[29] The Plaintiffs consist of three individuals and one organization. Other than the declarations

sought, which are to be applicable to all MNSI, the Plaintiffs seek no specific relief for themselves.

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A. Gabriel Daniels

[30] Gabriel Daniels is the son of Harry Daniels (now deceased), an original Plaintiff in this

action and a recognized advocate for Métis’ rights. While raised in Edmonton by his mother, he

moved to Ottawa in 1997 to be with his father when he was the president of what is now the

Congress of Aboriginal Peoples [CAP].

[31] Gabriel Daniels identifies himself as Métis, as did his father, mother and paternal and

maternal grandmothers. He testified to his Métis cultural roots and involvement in Métis gatherings.

He is a member of the Manitoba Métis Federation [MMF] and a past member of the Métis National

of Alberta [MNA] and the Ontario Métis and Aboriginal Association [OMAA]. Both the MMF and

MNA are affiliates of the Métis National Counsel (a split-off from CAP) while the OMAA is an

affiliate of CAP.

[32] While identifying as a Métis, Gabriel Daniels spoke to his long involvement in First

Nations’ activities including pow-wows, sweat lodges and round dances.

[33] Gabriel Daniels’ mother, in addition to identifying as a Métis, also applied for registered

status under the

Indian Act. The denial of that request by Indian and Northern Affairs Canada

[INAC] is indicative of the complexity of the issue as to who is an Indian and whether Métis are

Indians under s 91(24) and the historical problem of categorizing such people.

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B. Leah Gardner

[34] Leah Gardner is a non-status Indian from Ontario. Her children are status Indian, as was her

late husband. Her father acquired status as a result of s 6(2) amendments to the

Indian Act known as

Bill C-31 (

An Act to Amend the Indian Act, SC 1985 c 27) [Bill C-31] because he had one parent

entitled to registration under s 6(1) of the

Indian Act.

[35] While Leah Gardner’s husband whom she married in 1972 is a status Indian under s 6(2) of

the

Indian Act, she was denied status because, as she explained, “section 6(2) of the Indian Act

doesn’t provide for the registration of non-status wives of Indian men whose marriages took place

prior to April 17, 1985. Only the wives of Indian men who are registered or entitled to be registered

under section 6(1)

(a) of the Act are eligible for registration.”

[36] Leah Gardner identifies herself as a Métis without status but prefers “Anishanabe without

status” – Anishanabe being the Ojibway word for “the original people” or “people of the land”. She

is active in the OMAA and other aboriginal organizations. She participates in both Métis and

Anishinabe cultural events.

C. Terry Joudrey

[37] Terry Joudrey is a non-status Mi’kmaq Indian from Nova Scotia. He lives on the former

New Germany reserve. Both his mother and his grandmother were status Indians but his father was

not. He is a member of the Native Council of Nova Scotia and he uses his Aboriginal Treaty Rights

Association card as if it was a licence to hunt and fish; activities he associates with native traditions.

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D. The Minister of Indian Affairs and Northern Development

[38] The Defendant, the Minister of Indian Affairs and Northern Development has the powers,

duties and functions including all matters of which Parliament has jurisdiction, not by law assigned

to any other department, board or agency of the Government of Canada, relating to Indian Affairs.

E. The Attorney General of Canada

[39] The Attorney General of Canada is responsible for the regulation and conduct of all

litigation for or against the Crown or any department, in respect of any subject within the authority

or jurisdiction of Canada.

F. Congress of Aboriginal Peoples

[40] CAP is a body corporate that offers representation to Métis and non-Status Indians

throughout Canada. Its objectives include “to advance on all occasions the … interest of the

Aboriginal people of Canada and to co-ordinate their efforts for the purpose of promoting their

common interests through collective action”.

[41] CAP has been involved in this litigation for approximately twelve (12) years. It claims to

have spent over two million dollars to bring this case to trial.

[42] As indicated in the section “Discretion to Decide”, a somewhat unique feature of this

litigation is that it has been principally funded by the federal government notwithstanding their

numerous efforts to curtail this litigation.

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[43] However, the federal government’s funding contribution should not be taken to undermine

the pivotal role CAP played in advancing this claim – a role that few, if any, individuals falling

within the group known as MNSI could do.

[44] CAP has played a key position in the modern day discussions between native groups and the

federal government but it is not the only group to speak on behalf of the Métis.

[45] CAP (previously known as the Native Council of Canada or NCC - then sometimes

confused with the National Capital Commission) had a serious internal dispute over Métis issues

and representation.

[46] In March 1983, the prairie Métis either left or were expelled from the NCC and formed their

own organization – the Métis National Council [MNC]. Thereafter, at the various constitutional

discussions involving native issues, the MNC were present along with the NCC/CAP.

[47] Although the MNC were not involved in this litigation, the Court is cognizant of the fact

that CAP is not the sole recognized voice of Métis.

IV. DISCRETION TO DECIDE

[48] It is a central theme of the Defendants’ argument that this Court ought not to decide this

matter because, in summary, it is a theoretical matter which will not resolve anything. The

Defendants urge the Court not to exercise its discretion to grant one or more of the declarations

requested.

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[49] The Defendants’ position is that none of the declarations will do anything but lead to further

litigation. It is their thesis that what is at issue between the parties is alleged discrimination as

between the treatment of MNSI and status Indians.

[50] This is not the first time that the Defendants have raised the issue of whether declaratory

relief is appropriate. In the many years that this case has been in the Court system (since 1999), the

Defendants have brought various proceedings to stop the action proceeding but without success.

[51] Having not succeeded in preventing this action going forward, the Defendants now ask the

Court not to make any finding on the merits one way or the other but to simply decline to exercise

jurisdiction to decide.

[52] A somewhat unique feature of this action is that, until the recent advance cost order, it has

been funded under the Test Case Funding Program [TCFP] administered by the federal government.

The TCFP was created to fund important native-related test cases that had the potential to create

judicial precedent.

[53] The Defendants’ first point is that the first declaration will not resolve the real dispute

between the parties because at best it would provoke further litigation or at worse cause confusion.

The further litigation is said to be some claim of discrimination between MNSI and status Indians

either under s 15 of the

Constitution Act, 1982, 1982, c 11 (UK) Schedule B (Charter) or s 35 of the

Constitution Act, 1982

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[54] The principal issue in this action is whether the federal government has jurisdiction to make

laws in respect of MNSI under s 91(24) of the

Constitution Act, 1867 because they are “Indians”.

The other two declarations flow from the answer to the first issue.

[55] The record in this action is replete with references to the dispute as to jurisdiction over

MNSI and with reasons why the federal government has sometimes taken the position that it does

not have such jurisdiction under s 91(24). It should be noted here, that at other times, federal

officials acknowledged that the federal government had such jurisdiction even where it did not wish

to exercise it.

[56] As early as 1905, Ontario and Canada exchanged correspondence over which level of

government was responsible for addressing the claims of half-breeds in respect of Treaty 9. A

similar exchange arose in 1930 between Alberta and Canada concerning responsibility for indigent

half-breeds with Saskatchewan calling on the federal government to address their needs as “part and

parcel of the Indian problem”.

[57] There is a real live jurisdictional issue which has been recognized by the Royal Commission

on Aboriginal People [RCAP] in its calling for the federal government to bring a reference,

particularly in respect of Métis, to decide whether s 91(24) applies to Métis people.

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[58] Government documents destined to Cabinet assessing RCAP recommendations concluded

that it would be premature to embrace RCAP’s recommendation to negotiate Métis claims absent a

court decision on, amongst others, the division of federal-provincial liability.

[59] In the absence of any such reference or other proceeding, the Plaintiffs have sought a

declaration along the same lines as the RCAP recommendation.

[60] Justice Hugessen summarized the three basic requirements for obtaining declaratory relief

and concluded that they had been met. As Justice Hugessen said in respect of one of the

Defendants’ motions to dismiss this action:

6 The fact that the government has the power to raise the same

issues which come up in this case and to raise them by way of a

reference does not mean that those issues cannot come before the

Court in some other way. In my view, the present action is precisely

such another way and is legitimate.

7 The classic three requirements in this and I think in every other

Court for obtaining declaratory relief are:

1. That plaintiff has an interest

2. That there be a serious contradictor for the claim.

3. That the issue raised and upon which a declaration is sought

is a real and serious one and not merely hypothetical or

academic. (

Montana Band of Indians v. Canada, [1991] 2

F.C. 30 (C.A.), leave to appeal to S.C.C. refused (1991),

[1991] S.C.C.A. No. 164, 136 N.R. 421 n).

8 In my opinion it is certainly not beyond question that those

requirements have not been met in the present case. Indeed, I think

that they are all met and satisfied.

Daniels v Canada (Minister of Indian Affairs and Northern

Development)

, 2008 FC 823 at paras 6-8, 169 ACWS (3d) 1012

[

Daniels]

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[61] Justice Hugessen’s summary is in accord with the following from

Canada v Solosky, [1980]

1 SCR 821 at paras 11-13, 105 DLR (3d) 745:

Declaratory relief is a remedy neither constrained by form nor

bounded by substantive content, which avails persons sharing a legal

relationship, in respect of which a 'real issue' concerning the relative

interests of each has been raised and falls to be determined.

The principles which guide the court in exercising jurisdiction to

grant declarations have been stated time and again. In the early case

Russian Commercial and Industrial Bank v. British Bank for

Foreign Trade Ltd.

[ [1921] 2 A.C. 438], in which parties to a

contract sought assistance in construing it, the Court affirmed that

declarations can be granted where real, rather than fictitious or

academic, issues are raised. Lord Dunedin set out this test (at p. 448):

The question must be a real and not a theoretical question, the

person raising it must have a real interest to raise it, he must

be able to secure a proper contradictor, that is to say,

someone presently existing who has a true interest to oppose

the declaration sought.

Pyx Granite Co. Ltd. v. Ministry of Housing and Local

Government

[[1958] 1 Q.B. 554], (rev'd [1960] A.C. 260, on other

grounds), Lord Denning described the declaration in these general

terms (p. 571):

... if a substantial question exists which one person has a real

interest to raise, and the other to oppose, then the court has a

discretion to resolve it by a declaration, which it will exercise

if there is good reason for so doing.

[62] The Trial Record’s Amended Statement of Claim raises discrimination under s 15 of the

Charter

and s 35 of the Constitution Act, 1982 but in the context of denial of jurisdiction and refusal

or failure to consult in good faith.

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[63] The Plaintiffs’ prayer for relief makes no reference to discrimination or grounds for a

remedy in the usual nature for a discrimination case.

[64] The Defendants have tried to cast the Plaintiffs’ case as one of discrimination, the subject of

a s 15 proceeding or a question of federal spending power to extend programs and services.

However, this is the Plaintiffs’ case to frame and it has chosen not to frame it as the Defendants

would wish it..

[65] The first declaration will resolve the immediate dispute over jurisdiction. Whether such

resolution leads to further litigation or possible political pressure is not a grounds for refusing to

hear this matter. The Plaintiffs are not claiming a right to specific legislation or access to specific

programs.

[66] It is an accepted right that a plaintiff may frame the action (subject to various rules of

pleading) as it wishes. It is not for the Defendants to tell the Plaintiffs what their case is or should

be.

[67] The Defendants also argue that these declarations are being advanced in a factual vacuum.

The Defendants are correct that there must be a factual foundation upon which to base a

determination of rights (see

Kitkatla Band v British Columbia (Minister of Small Business, Tourism

and Culture)

, 2002 SCC 31, [2002] 2 SCR 146; R v Edwards Books and Art Ltd, [1986] 2 SCR 713,

35 DLR (4

th) 1).

Page: 22

[68] While people

per se rather than the subject matter do not fall in or out of the division of

powers, the Plaintiffs assert the right for MNSI to be included as Indians under s 91(24) and subject

to the exclusive jurisdiction of the federal government to make laws in relation to them. The nature

of s 91(24) is to confer jurisdiction over a specific group of people. In that regard, it is different than

most other powers conferred to either the federal or provincial governments under the Constitution.

[69] It is no answer for the Defendants to say that a case such as this cannot be brought because

there is no federal legislation against which to assert an action. There is no such legislation because

the federal government denies jurisdiction over MNSI. This is a classic Catch-22 situation. It is a

situation for which the declaration proceeding is well-suited to resolve.

[70] It is difficult to sustain any argument that there is a factual vacuum in a case with more than

six weeks of evidence, much of it expert and profoundly historical, encompassing approximately

800 exhibits (with few, if any, single page exhibits) extracted from over 15,000 documents. The

sweep of the historical evidence ranged from first contact with North American natives to very

current Aboriginal-federal government negotiations.

[71] In many regards the type of evidence in this action is similar and sometimes identical to that

Manitoba Métis Federation Inc v Canada (Attorney General), 2010 MBCA 71, [2010] 3 CNLR

233, both at the trial and appellate levels. The type of evidence is also similar in many respects to

that in

Blais, above.

Page: 23

[72] The Defendants argue that this action cannot result in a duty to legislate even if the defined

people fall within s 91(24) (see

Reference Re Canada Assistance Plan (B.C.), [1991] 2 SCR 525, 83

DLR (4

th) 297). The Plaintiffs have not sought any order suggesting a duty to legislate or to have

access to specific programs; they seek to know whether they fall within that class of people in

respect of whom Canada has the exclusive jurisdiction to make laws.

[73] Any uncertainty about provincial laws such as Alberta’s

Metis Settlements Act, RSA 2000, c

M-14, can only be removed by a decision on the issue raised whether the Métis are Indians for

purposes of s 91(24). The legitimacy of the Alberta legislation does not necessarily preclude federal

jurisdiction to legislate in respect of Métis.

[74] There is no question that there are certain definitional difficulties in this action but there is

evidence that this can be resolved. Further, the Supreme Court in

R v Powley, 2003 SCC 43, [2003]

2 SCR 207 [

Powley], dealing with who are Métis, held that difficulties of definition are not to be

exaggerated as a basis for defeating constitutional rights. The principle is particularly apt in this

action. Should difficult cases be a grounds for not deciding, and this case has more than enough

difficulties, the courts would not be carrying out their constitutional obligations as courts to decide

real legal disputes.

[75] The Court has addressed the issue that s 15 of the

Charter is a better and more appropriate

way to proceed. Given the decision in

Lovelace v Ontario, 2000 SCC 37, [2000] 1 SCR 950

[

Lovelace] and Alberta (Aboriginal Affairs and Northern Development) v Cunningham, 2011 SCC

Page: 24

37, [2011] 2 SCR 670 [

Cunningham], there may be significant doubt as to the availability of that

remedy.

[76] The Defendants also contend that this action is tantamount to an impermissible private

reference. Justice Hugessen has addressed that point fully in

Daniels, above, at paragraph 6 of his

decision.

[77] In addition to the above forming the grounds to reject the Defendants’ arguments not to

decide, there are additional factors which assist in resolving this issue. In exercising the Court’s

discretion, the Court must also have considered the practicality and prejudice of declining to decide.

[78] This action has taken over 12 years to get to this point. It has been funded largely by the

TCFP, a program which is subject to government policy as to its continuance. The Plaintiffs are

already under an advance costs order to ensure that this action could continue to be tried when the

TCFP funding cap had been reached which it has. There is no assurance that some other alternate

action could be financially sustained by which the Plaintiffs could address the issues they have

brought to Court.

[79] Furthermore, the public has already advanced approximately $2 million to the Plaintiffs

even with Plaintiffs’ counsel’s contribution of work at substantially below usual hourly rates. The

government of Canada has also had to pay its Justice counsel and their experts. The Court

considered the overall financial public investments in the Advance Costs Order (

Daniels v Canada

Page: 25

(Minister of Indian Affairs and Northern Development)

, 2011 FC 230, 387 FTR 102) with a rough

estimate of $5-6 million.

[80] There has been significant time, and millions of public funds invested in this action which

would be wasted if the Court declined to decide this matter. It would not be in the public interest to

exercise the Court’s discretion to not decide the matter in addition to all the other reasons cited

above.

[81] Returning to the basic principles underlying the right to seek a declaration from a court, the

Supreme Court of Canada has again recently affirmed the basic principles applicable to such cases.

Canada (Prime Minister) v Khadr, 2010 SCC 3, [2010] 1 SCR 44 at paragraph 46, the Supreme

Court said:

In this case, the evidentiary uncertainties, the limitations of the

Court's institutional competence, and the need to respect the

prerogative powers of the executive, lead us to conclude that the

proper remedy is declaratory relief. A declaration of

unconstitutionality is a discretionary remedy:

Operation Dismantle,

at p. 481, citing

Solosky v. The Queen, [1980] 1 S.C.R. 821. It has

been recognized by this Court as "an effective and flexible remedy

for the settlement of real disputes":

R. v. Gamble, [1988] 2 S.C.R.

595, at p. 649. A court can properly issue a declaratory remedy so

long as it has the jurisdiction over the issue at bar, the question

before the court is real and not theoretical, and the person raising it

has a real interest to raise it. Such is the case here.

[82] This Court has jurisdiction over the case, the question before the Court is real, and the

persons raising the issues have a real interest to raise it.

Page: 26

[83] Therefore, the Court cannot accept the Defendants’ invitation to decline to decide this

matter.

V. NATURE OF THE PROBLEM

[84] The circumstances which the Plaintiffs claim to have given rise to this litigation is well

described in a memorandum to Cabinet from the Secretary of State dated July 6, 1972:

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.

[85] The Métis and non-status Indians have been described similarly in various other documents

in evidence in this case.

[86] From the Métis perspective, they see the provincial governments as treating the Métis as

“political footballs”. The federal government denies that they have responsibility for Métis; the

provinces take the opposite position and see the matter as a funding issue for which the federal

government is primarily, if not exclusively, responsible.

[87] The essential feature of this perspective – the jurisdictional avoidance feature – was

confirmed by Ian Cowie, a senior official in the Department of Indian and Northern Affairs (as it

was known) who had significant experience in aboriginal affairs and who possessed the corporate

policy history of the Department. The result was that services to MNSI just were not supplied while

governments fought about jurisdiction – principally a fight about who bore financial responsibility.

Page: 27

[88] In an Interim Report from the Consultative Group on MNSI Socioeconomic Development in

1979 (a federal government report developed to outline future consultation strategies with

provincial MNSI associations and the Native Council of Canada), federal officials point out:

(a) the impact of changing the criteria for Indian registration (a matter that goes to the

root of the non-status Indian issue);

(b) the federal government has restricted its special powers and obligations (under the

Constitution) to status Indians and land reserved for Indians whereas the provinces

have recognized no special obligations to native people other than those imposed by

treaty or in the Prairie provinces,

The Natural Resources Transfer Act (1930).

Neither level of government recognizes any special legal obligation for people of

Indian ancestry other than status Indians.

special obligation to MNSI, there are some joint federal-provincial programs which

seem to be the only type of help on the horizon.

[89] In addition to the discussion of federal provincial positions in respect of MNSI, the paper

gave a useful synopsis of some of the historical factors affecting MNSI; none of which are in

serious disagreement with the expert opinions that were put before the Court.

[90] The process of recording the history of native people in Canada is an activity that will be

ongoing well into the future. Although over-simplification of such a massive subject is fraught with

danger, a brief explanation of certain historical elements is necessary as background to an

Page: 28

understanding of present conditions concerning the legal status, geographic location and current

circumstances of native people.

[91] The Department of Indian Affairs and Northern Development [DIAND] paper of August

1978 entitled “The Historical Development of the Indian Act” indicates that one of the first

legislative provisions to differentiate between “status” and “non-status” Indians was an 1851

amendment (

An Act to repeal in part and to amend an Act, intituled, An Act for the better protection

of the Lands and property of the Indians in Lower Canada

, 14 & 15 Vict, c 59) to the Upper

Canada Indian Protection Act

of 1850 (An Act for the Protection of the Indians in Upper Canada

from imposition, and the property occupied or enjoyed by them from trespass or injury

, 13 & 14

Vict, c 74). This amendment was made to clarify the definition of an “Indian” in relation to the

legislative purpose of securing Indian Land from “white” encroachment. Through the definition of

“Indian”, the 1851 amendment indirectly excluded “whites” living among Indians and non-Indian

males married to Indian women from obtaining legal status as “Indians”. On the other hand, the

definition of “Indian” included:

All women, now or hereafter to be lawfully married to any of the

persons included in the several classes hereinbefore designated, the

children issued of such marriages, and their descendants.

Thus started one of the discriminatory practices based on sex that was destined to be carried

throughout the evolution of the

Indian Act to the present day. Those practices have of course had a

major influence on the composition of the group called non-status Indians.

Page: 29

[92] A few years later, on June 10, 1857, an “

Act for the Gradual Civilization of the Indian

Tribes in the Canadas

”, 20 Vict, c 25-26, contained a preamble indicating that the government

favoured integration of Indians rather than additional legislative exclusions. The preamble said this:

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

…

This 1857 Act started the process of enfranchisement for “deserving Indians” – another practice that

was destined to be continued throughout the evolution of the

Indian Act and to contribute substantial

numbers to the ranks of the non-status Indians.

[93] While these actions of government in the Canadas were setting the legislative course for the

future division of status Indians and other people of native ancestry, which was later extended to all

provinces, events in the vast territory of the Hudson’s Bay Company were continuing to recognize

another group referred to as “Métis”. The term, originally restricted to the offspring of French and

Indian parents, later Scottish and Indian parents and predominantly west of southern Ontario, has

gradually been broadened in common usage to include all people of mixed Indian and other

ancestry who are not status Indians but who claim a culture distinction. However, amongst the

native people it still carries a connotation somewhat different than the term non-status Indian, and

relates principally to the mixed ancestry descendants of the fur trade era who did not become

registered as Indians during the treaty-making and registration processes.

Page: 30

[94] The cumulative effects over time of these parentage relations and legislative and

administrative events produced, by evolution, a group called Métis and non-status Indians. Because

of their community of interest as people of Indian ancestry, their grievances against government,

and their adverse social and economic circumstances, the group has been able to maintain its

identity and form national, provincial and regional associations claiming a potential membership of

approximately 1,000,000 people.

[95] The geographic distribution to these people today strongly reflects their historical origins

and social evolution. In central and eastern Canada, where native Euro-Canadian inter-relationships

and integrative forces have been operative for a comparatively long time, people of some native

ancestry, other than status Indians living on reserves, are generally distributed throughout the

population. There are some communities, often near reserves, where groups of inter-related families

of native ancestry constitute a recognized portion of the community. But throughout the Maritimes,

and the southern portions of Ontario and Quebec, there are few communities considered to be

primarily Métis or non-status Indian in character.

[96] In contrast, throughout the mid-northern region of Canada, and particularly in the vast

reaches of the former territory of the Hudson’s Bay Company, stretching from western Quebec to

the Rockies, Métis and non-status Indians make up a large percentage of the population of many

communities. Most of these communities began as fur trading posts and now commonly consist of a

mixture of status Indians living on reserve land, Métis living on adjacent Crown land and a small

enclave of “white” public servants and merchants. In the prairie provinces the Métis communities

tend to be concentrated along the agricultural-forest fringe, frequently again in close proximity to

Page: 31

Indian reserves. In large measure, this concentration is a reflection of the administration of lands

during the home-steading era on the Prairies. These historical influences on the distribution of

native people throughout Canada have been tempered in more recent times by the growing

migration to cities.

[97] The present location of native people in relation to the general population of Canada and the

main stream of economic activity has major consequences in terms of their present circumstances

and their developmental opportunities. In a Department of Regional Economic Expansion

publication of February 10, 1977, entitled “Special ARDA in Relation to the Future Direction of

Native Socio-economic Development”, Canada was divided into four main “socio-economic

regimes” for purposes of describing the diversity of current circumstances and opportunities of

native people. The divisions selected were: metropolitan centres; developed rural areas; mid-north

and coastal regions; and the arctic region. The differences in social and economic conditions

amongst these “regions” are critical to the formulation of policies and programs aimed at

developmental assistance.

[98] The native population of Canada is young. In recent years, a number of factors have

combined to produce a native population which has a much higher percentage of children and youth

than the Canadian population as a whole. It is estimated that 56% of the present native population is

under the age of 20. This compares with 36% in the total population. In Saskatchewan, where the

native population is estimated at about 12% of the total, the proportion of native people in the

school age population is considered to be over 20%. This age distribution has major implications for

Page: 32

the educational system, future entrants to the labour force and, of course, the design of policies and

programs for developmental assistance. (All percentages are approximate.)

[99] The DIAND document of 1980, “

Natives and the Constitution” Background and Discussion

Paper [1980 DIAND Paper] was a document which formed part of Cabinet documents and has been

reviewed for and considered by the highest level of government. The views expressed represented

prevailing views of the highest levels of the bureaucracy and the political structure. The federal

position was described (and continues to be):

The federal government has chosen to exercise the authority assigned

to it under the BNA Act very narrowly (by its definition of Indian in

the Indian Act and policy decisions to provide only very limited

direct services to off-reserve Indians). This has created a point of

considerable contention.

[100] The provincial position is described as:

Most provinces support the position that Section 91(24) of the BNA

Act imposes on the federal government total (financial)

responsibility for Indian people --- responsibility which, in the

provinces’ view, has been increasingly derogated, particularly in the

off-reserve context. Many of the provinces are of the opinion that the

federal government must reassume its “total” constitutional

responsibility in this area, and subsequently reimburse them for the

cost of providing service to all status Indians.

[101] Although this paper was written as part of the lead up to the repatriation of the Constitution,

the respective governmental positions have only changed marginally until the mid 1980s as later

described.

Page: 33

[102] It was noted that the provincial position on the future status and responsibilities for Métis

and non-status Indians was less clear.

[103] What was clear is that the native community was divided. Status Indians were generally not

in favour of any broadening of the

Indian Act definition and indeed may wish to have it narrowed.

However, the Métis and non-status Indians would maintain that they are “Indians” within the

meaning of the terms of the

BNA Act. It was anticipated that in the repatriation negotiations with the

natives, the MNSI would claim that the federal government should assume a greater measure of

responsibility for the provision of services to the MNSI. Indeed that happened and the failure of the

federal government is part of the problem to which this litigation is directed.

[104] Another problem that the 1980 DIAND Paper highlighted and a central theme of this

litigation is that s 91(24) can encompass non-status and many Métis as well as others:

At present it is clear that the interpretation of the word “Indian” in

the BNA Act is broad enough to encompass Inuit, non-status and a

good number of Métis, as well as “status Indians”. The apparent

anomalies, inconsistencies and discriminatory provisions flow more

from difficulties associated with the present enabling legislation

(

Indian Act) definition of “Indian”.

[105] One of the important feature of this Paper is that it captured themes that ran through the

Modern Era section of this litigation. It was a precursor of the issues. It can be described as “plus ça

change, plus c’est la même chose”.

[106] The provincial position has been that the federal government is responsible for the costs of

MNSI as they are for status Indians. Only Alberta has taken a step in recognizing provincial

Page: 34

jurisdiction in respect of Métis under the

Metis Settlement Act. The Supreme Court of Canada has

recently affirmed that legislation in

Cunningham, above.

[107] One of the results of the positions taken by the federal and provincial governments and the

“political football – buck passing” practices is that financially MNSI have been deprived of

significant funding for their affairs. In 1982-1983, of moneys spent for natives, 79% of federal

moneys and 88% of provincial moneys went to status Indians despite the fact that the MNSI

population (even with its definitional issues) exceeds the status Indian population - 1995 – 238,500

Status, 404,200 non-status Indians and 191,800 Métis. These figures vary with time and definition

but provide a useful order of magnitude to the issues between the native/Métis communities and the

federal government.

[108] As the Defendants’ documents reveal and will be addressed more fully in these Reasons

under Modern Era, the political/policy wrangling between the federal and provincial governments

has produced a large population of collaterally damaged MNSI. They are deprived of programs,

services and intangible benefits recognized by all governments as needed. The MNSI proponents

claim that their identity and sense of belonging to their communities is pressured; that they suffer

undevelopment as peoples; that they cannot reach their full potential in Canadian society.

[109] The Defendants’ documents show that the service deficit problem is expected to continue as

the MNSI population grows. The adverse impact on the MNSI communities across Canada will also

increase.

Page: 35

[110] The resolution of constitutional responsibility has the potential to bring clarity to the

respective responsibilities of the different levels of government.

VI. PROBLEM OF DEFINITION

[111] One of the more difficult issues in this matter is the question of what is meant by non-status

Indians and Métis for purposes of the interpretation of s 91(24). There is a clear difference of

opinion as to the composition and geographic base within the Métis community. The term “nonstatus

Indian” must mean something other than any person not having status under the

Indian Act as

that would cover almost everyone in Canada whether they had native connections or not.

[112] The Defendants appear to suggest in their Memorandum of Law that the federal government

can define for constitutional purposes who is “an Indian” by its own legislation. That proposition

would allow the federal government to expand and contract their constitutional jurisdictions over

Indians unilaterally.

[113] It is a settled constitutional principle that no level of government can expand its

constitutional jurisdiction by actions or legislation

Reference Re Securities Act, 2011 SCC 66,

[2011] 3 SCR 837. The federal government may wish to limit the number of Indians for which it

will grant recognition under the

Indian Act or other legislation but that does not necessarily

disqualify such other Indians from being Indians under the Constitution.

[114] The Supreme Court in

Canard v Canada (Attorney General), [1976] 1 SCR 170, 52 DLR

(3d) 548, (Pigeon J) [

Canard], held that the object of s 91(24) is to enable Parliament to make

Page: 36

legislation applicable only to Indians as such. However, Beetz J., at paragraph 79, went on to

expand the point, recognizing that the section creates a racial classification and refers to a racial

group.

The

British North America Act, 1867, under the authority of which

the

Canadian Bill of Rights was enacted, by using the word “Indians”

in s. 91(24), creates a racial classification and refers to a racial group

for whom it contemplates the possibility of a special treatment. It

does not 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 of which the Court could and did take

cognizance.

[115] Some of the situations which created non-status Indians were problems recording names

during the treaty process and fear of the process itself. The result was that names were not recorded.

Another major cause was that many Indians (primarily women) lost status or simply gave it up.

Marrying out provisions whereby the native woman lost her status upon marrying a non-Indian

commenced formally about 1851.

A. Non-status Indians

[116] Non-status Indians as a group must have two essential qualities by definition; they have no

status under the

Indian Act and they are Indians. The name itself suggests the resolution of this point

in this litigation.

[117] In the modern era, the difficulty of definition in part has been addressed. As indicated

earlier, the government in 1980 defined the core group of MNSI as a group of native people who

maintained a strong affinity for their Indian heritage without possessing Indian status. Their

Page: 37

“Indianness” was based on self identification and group recognition. That group was estimated at

between 300,000 and 450,000.

[118] By 1995 the government was able to estimate that the non-status Indians constituted

404,200 people (those living south of 60°).

[119] It is clear that the non-status Indians description is based on substantial connection, both

subjectively and objectively, to Indian ancestry. Degrees of “blood purity” have generally

disappeared as a criterion; as it must in a modern setting. Racial or blood purity laws have a

discordance in Canada reflective of other places and times when such blood criterion lead to horrific

events (Germany 1933-1945 and South Africa’s apartheid as examples). These are but two

examples of why Canadian law does not emphasize this blood/racial purity concept.

[120] In the preparation for Bill C-31, the federal government was further able to identify the

number of non-status Indians who would be impacted by the legislation.

[121] In

Powley, above, in identifying who is a “Métis”, the Court did not set out a rigid test or

explore the outer limits of the definition but outlined a method of determining the question on an

individual basis. This Court will not try, in defining non-status Indians, to do more than the

Supreme Court did with Métis.

[122] The group of people characterized as “non-status Indians” are those to whom status could be

granted by federal legislation. They would be people who had ancestral connection not necessarily

Page: 38

genetic to those considered as “Indians” either in law or fact or any person who self-identifies as an

Indian and is accepted as such by the Indian community, or a locally organized community, branch

or council of an Indian association or organization which which that person wishes to be associated.

[123] It may well be that there must be a determination on a case by case basis for each individual

but this general description sufficiently identifies a group of people for whom the issues in this case

have meaning.

B. Métis

[124] The term Métis (sometimes the term half-breed is used, pejoratively) has been the subject of

debate within the Métis community and elsewhere. There are those, such as the Manitoba Métis

Council, who would limit the definition to those in and around the Red River Settlement and their

descendants who are of European and Indian heritage and who followed distinct customs and ways

of living.

[125] In the

Manitoba Métis Federation Inc v Canada (Attorney General) case (2007 MBQB 293,

223 Man R (2d) 42, aff’d in 2010 MBCA 71, [2010] 3 CNLR 233, leave to appeal to Supreme

Court of Canada granted, 417 NR 400 (note), 2011 Carswell Man 27 (available on WLCan)

[

Manitoba Métis Federation], dealing with s 32 of the Manitoba Act, 1870 and the grant of 1.4

million acres of land to the children of Métis, it was principally the Red River Settlement Métis who

were the subject of the litigation.

Page: 39

[126] However, in

Powley, above, the Supreme Court was dealing with a Métis from Sault St.

Marie. In the present case the geographic range of the question of whether Métis are Indians under

s 91(24) is country-wide. The evidence shows that the term Métis was and is used well outside of

Western Canada. Cases involving agreements or provincial laws are not necessarily determinative

of the issue.

[127] In

Powley, above, the Supreme Court did not attempt to define the outer limits of “Métis”

but it did provide a method for finding who a Métis is for purposes of s 35. Aside from the

sine qua

non

of mixed aboriginal and non-aboriginal ancestry, a Métis is a person who

(a) has some ancestral family connection (not necessarily

genetic);

(b) identifies himself or herself as Métis; and

community branch, chapter or council of a Métis association

or organization with which that person wishes to be

associated.

[128] As

Powley, above, was a question of collective right to hunt, the last point was critical.

However, there may be individual circumstances where there is no such association, council or

organization but the individual participates in Métis cultural events or activities which show

objectively how that person identifies himself or herself subjectively as a Métis.

[129] As the further historical evidence will show, there was no “one size/description fits all”

when it comes to examining Métis on a national scale.

Page: 40

[130] However, it is those persons described in paragraph 117 who are the Métis for purposes of

the declaration which the Plaintiffs seek.

VII. WITNESSES

[131] In addition to the Plaintiffs as witnesses, much of this trial evidence was delivered by

experts. I will have more comment on that expert evidence later but it is useful to give some general

idea of the type of evidence presented.

A. Ian Cowie (Plaintiffs’ Witness)

[132] Cowie, currently a consultant and a lawyer by training, had held senior federal government

positions at DIAND during the modern evidence phase of this case. From 1977-1981 he had been

Senior Policy Advisor and later Director – Intergovernmental Affairs. He later became Director

General, Corporate Policy and then Assistant Deputy Minister Corporate Policy. He ended his

public service career as Deputy Minister of Indian and Native Affairs for the Province of

Saskatchewan.

[133] The Corporate Policy group was the policy development and clearing house for DIAND

policy. Most of the native constitutional law work was done at DIAND.

[134] Cowie’s evidence was important because it gave an insider’s view of modern native rights

policy development. He was able to speak with knowledge about a number of government

documents admitted in evidence including how far up the “decision tree” each was and the degree to

which some key documents reflected actual federal policy and legal positions.

Page: 41

[135] While Cowie was cross-examined, the Defendants put in no witness to challenge his

evidence. The evidence will be referred to later in these Reasons. Suffice it to say that the Court

found him to be very knowledgeable, very fair and completely credible.

[136] Of the many documents covered, one of the most important was an August 1980 DIAND

paper “Natives and The Constitution” – Background and Discussion Paper. The Plaintiffs rely on

this document as evidence of an admission of jurisdiction by the federal government. In part, that

argument relies on such quotes from the paper as these:

- “In general terms, the federal government does possess the power to

legislate theoretically in all domains with respect to Métis and nonstatus

Indians under Section 91(24).”

- “Métis people who come under treaty are presently in the same legal

position as other Indians who signed land cession treaties. Those

Métis who have received scrip or lands are excluded from the

provisions of the Indian Act, but are still “Indians” within the

meaning of the BNA Act. Métis who have received neither scrip,

land, nor treaty benefits still arguably retain the right to aboriginal

claims.”

- “Should a person possess “sufficient” racial and social characteristics

to be considered a “native person”, that individual will be regarded as

an “Indian” within the meaning of the BNA Act. That person is,

therefore, within the legislative jurisdiction of the federal

government, regardless of the fact that he or she may be excluded

from the coverage of the Indian Act.”

and lastly

- “At present, it is clear that the interpretation of the word “Indian” in

the BNA Act is broad enough to encompass Inuit, non-status and a

good number of Métis, as well as “status Indians”. The apparent

anomalies, inconsistencies and discriminatory provisions flow more

from difficulties associated with the present enabling legislation

(

Indian Act) definition of “Indian”.”

Page: 42

Note: “Scrip”: the term used in this context was a form of paper certificate

redeemable for land or money at the individual’s choice of 160 or

240 acres or dollars depending on age and status.

The basic premise of scrip was to extinguish the Aboriginal title of

Métis in much the way treaties did for First Nations but on an

individual basis for Métis rather than the collective basis used for

First Nations.

B. John Leslie (Plaintiffs’ Witness)

[137] Leslie had to be called by the Plaintiffs because the Defendants would not admit that a

significant number of government documents were in fact government documents. The Defendants’

position was wholly untenable and just a further example of the extent to which the Defendants

would proceed in attempts to frustrate this litigation.

[138] Leslie has a BA, MA and PhD in History. He had spent 33 years in the federal government

primarily at DIAND. At his retirement he was the Manager of the Claims and Historical Research

Centre, Special Claims Branch. It was his familiarity with DIAND’s document control system

which allowed him to identify that the documents were government documents although he was not

personally knowledgeable about the contents of the more than 150 documents which were admitted

through him. His role was tantamount to a business records identifier – a process which should have

been unnecessary. However, Leslie was able to add context to a number of the exhibits.

[139] The documents introduced by Leslie gave insight into government thinking and policy

development. Among the many interesting documents (some of which will be referred to later in

these Reasons) is Exhibit P139, a staff paper “A Review of the Data and Information Situation with

Recommendations for Improvements” dated August 15, 1980.

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[140] That paper, as a precursor to the issue of defining the groups involved in this litigation,

contained the following comments:

MNSI are thus defined as a core group of native peoples who

maintain a strong affinity for their Indian heritage without possessing

Indian Status.

In summary, it is useful to note that notwithstanding the difficulties

pertaining to defining MNSI membership, there is, however, general

agreement on the estimate of “identifiable core” MNSI population as

ranging between 300,000 and 450,000. There are thus more “core”

MNSI than the approximately 300,000 Status Indians recognized in

the Indian Register as of 1980.

The 1981 Census thus provides a practical means for MNSI people

to demonstrate clearly their continuing existence; the 1981 Census

will provide a central core to the statistics section of the MNSI

database and serve as a basis for shaping future MNSI programming.

[141] A continuing theme running through many of Leslie’s documents is the size of the MNSI

core community and the potential program cost increases arising from their inclusion as “Indians”.

[142] The documents introduced by Leslie allow one to trace the shifting policies of the federal

government and the different directions taken by one governing political party and another. Despite

the change in government, some positions stayed the same. In a December 1985 letter to the

Institute for Research on Public Policy, the Minister of Indian Affairs and Northern Development,

David Crombie, concluded:

I would also like to clarify an apparent misunderstanding regarding

the constitutional recognition of non-status Indians. There is a

distinction between “Indian” as defined in the Indian Act and

“Indian” as used in section 91(24) of the Constitution Act, 1867. The

Indian Act definition refers to those people registered or eligible to

be registered under the Indian Act. By definition, non-status people

do not fit within this group.

It has, however, generally been

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understood that certain aboriginal people other than status

Indians, including the group usually identified as non-status, are

covered by the section 91(24) meaning of “Indian”.

[Emphasis added by the Court]

[143] The policy dynamic of Bill C-31 is easily traced including the concern that if the Bill were

broadened to remove further sexual discrimination in the

Indian Act, the increase in the number of

new “status Indians” would be unacceptable to the present Indian communities.

[144] The documents introduced through Leslie also threw light on the definitional issues as to

who is Métis and who is non-status Indian. For example, in 1989 in an internal DIAND document

(Exhibit P135) , government officials were able to identify the Métis population in 1986 as 117,400

projected to grow to 129,000 in 1990 and the non-status Indian population in 1986 was 161,772 but

decreasing to 110,390 in 1990 due to the impact of Bill C-31.

[145] Leslie’s evidence was not seriously challenged in cross-examination nor did the Defendants

put in any witness to challenge Leslie’s evidence. The Court accepts his evidence, particularly as to

context and importance of certain documents and takes those documents to say what they mean and

mean what they say.

[146] Before turning from the former government employee witnesses to the historical expert

witnesses, the Court acknowledges that Keith Johnson, who had worked at Public Archives since

1961 and was familiar with the Sir John A Macdonald Papers, gave evidence as to that Prime

Minister’s handwriting - an interesting sidelight of the overall evidence.

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VIII. HISTORICAL EXPERT WITNESSES

A. William Wicken (Plaintiffs’ Witness)

[147] Wicken holds an MA and a PhD in History from McGill University. He is an Associate

Professor of History at York University. He had been qualified as an expert in 14 trials.

[148] In this matter Wicken was qualified as an expert witness within an area of expertise in

government policies towards Canada’s Aboriginal peoples based on historical records with a focus

on Eastern and Central Canada (Ontario/Quebec).

[149] While Wicken had in-depth knowledge of aboriginal matters in Atlantic Canada, he had

sufficient grounding in Central Canada aboriginal matters to give helpful evidence on a broader

geographical area than the Defendants’ comparable witness Stephen Patterson.

[150] I found Wicken to be clear, well-prepared, consistent in his evidence and credible. His

historical sources tended to be primary and relevant. He was a credible witness whose evidence

(where it tended to be opposite to Patterson’s) I generally accepted because it was more relevant to

the issue of interpretation before this Court.

[151] The key points of his evidence:

(a) Wicken addressed the issue of the Framers of Confederation’s goals in making

Indians and Lands Reserved for Indians a federal responsibility (Framers is used in

this context as the gender neutral for the previously common term “Fathers of

Confederation”.):

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(i) to control Aboriginal people and communities where necessary to facilitate

economic expansion and development of the Dominion;

(ii) to honour the obligations to Aboriginal people that the Dominion had

inherited from Britain (and through it from the Hudson’s Bay Company)

while extinguishing those interests that may impede development;

(iii) to civilize and assimilate Aboriginal peoples and communities.

(b) Wicken was of the view that at the time of Confederation there was significant

diversity within Aboriginal populations and communities with more to come with

the absorption of Western Canada. There was diversity in colonial Indian

administration as well. Therefore, a broad power of control and consistency was

needed to address the needs of a developing Dominion.

“Indians” broadly in order to meet the above objectives.

B. Stephen Patterson (Defendants’ Witness)

[152] Patterson is a professor emeritus at the University of New Brunswick, an historian and

historical consultant. He holds a BA from UNB, and an MA and PhD in History from the

University of Wisconsin.

[153] With one exception he was an historical consultant to both federal and provincial

governments. He has been accepted as an expert in 23 cases always appearing on behalf of the

Crown. This fact does not justify calling into question either Patterson’s integrity or objectivity.

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[154] It was evident that Patterson had in-depth knowledge of Maritime aboriginal history. He was

accepted as an expert historian able to give historical evidence on aboriginal peoples of eastern

North America after their contact with the Europeans; the general history of North America; the

history of French and British colonization and its impact on Amerindians and especially the

Mi’kmaq, Maliseet and Passamaquoddy; and the history of government policy (colonial, provincial,

imperial and federal) respecting natives as it relates to natives of eastern Canada with a particular

focus on the natives of Atlantic Canada.

[155] Patterson was clearly well qualified to give his opinion evidence on aboriginal history in

Atlantic Canada. He was a credible, co-operative and well-prepared witness. However, his Report

was narrowly focused both in time (no post-Confederation history) and geography (restricted to

Atlantic Canada). It is in this area of its limitations that Patterson’s evidence is less helpful than that

of Wicken.

[156] The central point of Patterson’s evidence is that, pre-Confederation, in Atlantic Canada

Europeans defined “Indians” as members of indigenous communities or collectives distinguished by

common languages and customs, internal governments sufficient for their needs and specific

territories that defined their subsistence patterns and their relationship to the land and its resources.

[157] It was his opinion that this identification of “Indians” with communities informed the

Maritime delegates to the

BNA Act process and influenced their acceptance of federal authority over

the field of “Indians and Lands Reserved for Indians”.

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[158] Patterson noted that no historically identified mixed blood communities emerged in the

period before the effective assertion of European control. Further, neither the French nor the British

governments recognized any such community as distinct from either Indian or settler societies.

[159] Patterson saw the adoption of the first

Indian Act as reflecting the statutes and policies of

Atlantic Canada in managing Indian affairs particularly in relying on the native people to define

themselves, where they lived, how many they were and in making treaties and allocating reserves in

a manner that reflected their communities.

[160] To the extent that this Atlantic Canada experience influenced Atlantic Canada delegates, its

relevance to the issues before the Court is limited. As other witnesses showed, the majority of

Atlantic Canada delegates were more interested in the free trade with central Canada aspect of

Confederation than they were in the nation-building envisioned by Sir John A Macdonald.

C. Gwynneth Jones (Plaintiffs’ Witness)

[161] Jones is an independent consultant on native issues. She holds a BA and MPA from Queen’s

University and an MA in History from York University. For 11 years Jones worked for the Native

Affairs Branch of the Government of Ontario with particular expertise in Métis and off-reserve

Indian issues.

[162] Since 1995 Jones has been a freelance consultant. The breakdown of her consultancy is onethird

for the federal government, one-third for provincial government and one-third for aboriginals

(First Nations, Métis and off-reserve Indians). The balance in her portfolio of consultancy

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reinforced the Court’s impression of her as a knowledgeable witness, balanced, fair and objective,

independent of even the subtle pressures of being identified with one client or type of client.

[163] Jones has given expert evidence in a number of cases including the highly relevant

Powley,

above, and in this Court in

Montana Band v Canada, 2006 FC 261, 287 FTR 159. She was qualified

in this present case as an historian having expertise towards Canada’s Aboriginal people based on

the historical record with a focus on Ontario and Western Canada.

[164] Jones’ evidence was particularly helpful because it examined the conduct of the federal

government towards natives and especially Métis along with the shifting policies and their impact.

She examined how the federal government used its “Indian” power – Canada’s administration of

Aboriginal people from just before Confederation with emphasis on the post-Confederation era until

approximately the 1930s. Her period of analysis and geographic scope dovetailed well with the

evidence of Wicken.

[165] The Court was impressed with the quality of Jones’ evidence and puts considerable reliance

on it. She was obviously a highly credible witness and her evidence was particularly helpful in

determining what was actually done by the federal government particularly in its treatment of Métis

or “half-breeds” (as these persons of mixed Indian-European were often called; generally not

respectfully).

[166] Her opinion on the rationale for the grant of s 91(24) powers to the national government

echoed Wicken’s. It was a means of furthering the objectives of Confederation; of acquiring,

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developing and settling the territories of Ontario and Quebec as well as creating a stable and viable

British North America entity capable of resisting absorption into the United States. Control over

“Indians and Lands Reserved for Indians” enabled the central government to peacefully extinguish

Aboriginal (often called “Indian”) title, protect Aboriginal interests and therefore ensure the

peaceful environment required for newcomer settlement and westward expansion.

[167] Jones notes that from pre-Confederation until the late 1930s, federal policy evolution

established a legal distinction between “Indians” and “half-breeds”. The distinction was the product

of (i) the status that these Aboriginal people had themselves elected to assume at the time of the

treaty/agreement (either fiscal benefit or property scrips); and (ii) the ongoing process of adjustment

and reassignment of Aboriginal people to legal categories managed by Canada.

[168] Jones cautioned that Band Lists (often used as historical evidence of “Indian” status) should

not be construed as comprehensive or exclusive lists of related or associated individuals or as a

census of residency. Band Lists (and later Indian Registers) grew out of Treaty Paylists; not the

other way around. Treaty Paylists were the product of

ad hoc record keeping, fluctuating

interpretations of the

Indian Act and ongoing policy changes dating back to pre-Confederation.

[169] Jones’ Report covered three related areas:

(1) the historical context in which Parliament was assigned jurisdiction over “Indians

and Lands Reserved for Indians”;

(2) Canada’s historical policies and practices regarding its designation of Aboriginal

people as Indians from 1850 to 1930; and

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(3) the development of Treaty Paylists and the identification of “Indians”.

Her conclusion was that non-status Indians and Métis were dealt with using the Indian power of

s 91(24), both as a matter of fact and policy.

D. Sébastian Grammond (Plaintiffs’ Witness)

[170] Dean Grammond is a law professor and dean of the Civil Law Section of the University of

Ottawa. He has studied in the field of law and identity for indigenous people. He claimed an

expertise in the interdisciplinary aspect of law in relation to sociology and anthropology.

[171] There was no question as to Grammond’s qualifications in law, particularly international

law. The interdisciplinary aspects are more difficult to quantify and qualify. His Report, or at least

major parts of it, was challenged partly because they were statements of law and/or submissions.

[172] The Court ruled that certain portions of Grammond’s Report had to be redacted but that he

was qualified to give opinion evidence as an interdisciplinary legal scholar having expertise on the

legal history of government policy towards Canada’s Aboriginal people drawing on sociological

and anthropological sources with a focus on the post-war period and the influence of legal norms.

[173] Grammond’s evidence was directed at the development and influence of international and

constitutional norms on the exercise of the federal power under s 91(24) and in the recognition of

increasing numbers of people falling within s 91(24) as Indians. He predicts that in response to

international and domestic pressures, Parliament will expand the exercise of s 91(24) jurisdiction

over a large number of people.

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[174] As interesting as his thesis and prediction may be, Grammond’s evidence is directed at what

Canadian policy can and should be. The Court is not deciding policy (the purview of the legislature

or the executive) but attempting to interpret the Constitution. Policy evidence is useful in

determining the historical understanding of words or concepts and to put context around the issue.

Future policy issues, as interesting and important as they are, are to be left elsewhere.

E. Alexander von Gernet (Defendants’ Witness)

[175] Von Gernet is an adjunct professor of anthropology at the University of Toronto. He has a

BA, MA and PhD in Anthropology. His PhD specialization was in Ethnohistory and Archaeology

of Aboriginal peoples in North America.

[176] He has been accepted in court as an expert in 25 cases in provincial, state and superior

courts as well as in this Court always on behalf of the Crown. He was accepted as an expert

qualified to give opinion evidence as an anthropologist and ethnohistorian specializing in the use of

archaeological evidence, written documentation and oral traditions to reconstruct past cultures of

Aboriginal people, as well as the history of contact between Aboriginal peoples and newcomers

throughout Canada, and parts of the United States, which history includes the relationship between

government policies and Aboriginal peoples.

[177] Von Gernet’s Report was far ranging and delved into areas, such as post-Confederation

federal policies, which were well beyond his area of expertise. There were three themes to his

Report:

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(1) Half-breeds or Métis would not have been contemplated as falling within the term

“Indian” as it appears in s 91(24).

(2) The

Manitoba Act, 1870 does not support the view that the seven framers of the

Constitution understood “Indians” to include Métis.

(3) Problems in administering treaties particularly where half-breeds are involved

illustrated why the exclusive authority vested in Parliament under s 91(24) could not

be effectively exercised without passing the

Indian Act defining who was or was not

an Indian.

[178] Von Gernet came at his task of making his report in an unusual way. He would brook no

instructions nor work with counsel; he was there to express his opinions. Regrettably, this was

evident in that he exhibited little understanding of the case or the issues for the Court; thus he could

not be as helpful as one would have hoped.

[179] Von Gernet’s evidence suffered from a number of other problems. He relied on a database

of documents provided by the Defendants which was not current or updated. He relied extensively

on secondary sources which became clear when he did not understand the context in which much of

that material arose. His conclusions were often based on faulty understanding; for example, the

frailties of the 1871 Census as a reliable indicator of “Indian/half-breed” population.

[180] In general, von Gernet’s research and conclusions were unoriginal often reflecting virtually

regurgitating other people’s work such as that of Thomas Flanagan’s article “The Case Against

Métis Aboriginal Rights” (1983) 9(3) Canadian Public Policy 314.

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[181] Unfortunately, von Gernet exhibited a shallow understanding of many of the documents he

relied upon or was unexplainably selective in his use of evidence. Thus, his evidence stood in sharp

contrast to many of the other witnesses on both sides in terms of knowledge, reliability and

credibility.

[182] While the Court does not discount all of von Gernet’s evidence, it places considerably less

weight on it where it contradicts other experts. His Report did not stand up well to the glaring light

of cross-examination and provided the Court with much less illumination into the issues in this case.

IX. HISTORICAL EVIDENCE

A. Pre-Confederation Era

[183] Given the nature of this litigation, the Court was presented with over four centuries of

history since first contact between European settlers and the indigenous population in what became

Canada. It is not the purpose of this judgment to provide a survey course in Canadian history but to

focus on the key events and circumstances relevant to the issue of whether non-status Indians and

Métis are Indians under s 91(24). The pre-Confederation evidence was directed at what the term

“Indian” meant at the time and thus likely was the meaning that the Framers of Confederation had

in mind when it was inserted into the s 91 powers assigned to the federal government.

(1) Atlantic Canada

[184] Both parties’ experts (particularly the Plaintiffs) used the following historical evidence to

draw conclusions as to what the delegates from Atlantic Canada understood about the “Indian

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situation”. The Plaintiffs particularly relied on these facts (and others) to conclude on what the

Framers from Atlantic Canada meant by “Indian” and by extension what other Framers likely

meant.

[185] What any individual Framer may have understood and intended is, in the absence of specific

historical writing, a substantial bit of speculation and not particularly reliable.

[186] However, the evidence of the situation in each colony or area lends context to determining

the meaning and scope of s 91(24). The Indian power was an amalgam of colonial power and

British government power and responsibility for natives. It helps in understanding who or what

kinds of people fall under the rubric of “Indian” before and up to Confederation and thereafter.

[187] There had been 300 years of European-Indian contact in Atlantic Canada prior to

Confederation. At that time of contact the Mi’kmaq were located along the coasts of what is now

Nova Scotia and New Brunswick. In addition, the Maliseet and Passamaquoddy were part of a

larger aggregation known as the Etchemin whose homeland stretched from the Kennebec River,

now in Maine, to the Saint John River in New Brunswick.

[188] Natives of Atlantic Canada were generally organized into small self-governing communities

tied by cultural affinity rather than by a centralized leadership. As an example, the Mi’kmaq were

organized into at least 12 communities, ranging from 40 to 200 people. Each community had its

own territory as a resource base.

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[189] Both the French and British tended to accept the natives’ definitions of their communities as

they defined themselves. The two European powers also recognized the existence of small

government structures adequate for the needs of the particular native group.

[190] Both Patterson and Wicken focused on Atlantic Canada in their reports, looking at how

federal Indian policy shaped the lives of “Indians” in that area.

[191] While Wicken focused on evidence relating to the pre-Confederation experience of Indians

themselves, Patterson focused on the post-Confederation observations and reports of government

officials. Not surprisingly they arrive at two different conclusions with regards to what the situation

in Atlantic Canada reveals about the Framers’ broader understanding of the term “Indian”.

[192] Patterson opined that the identity of Mi’kmaq, Maliseet and other aboriginal groups in the

area was connected to the communities where they lived. In this respect, the British signed treaties

with distinct communities of people in the 18

th century. In the 19th century, local colonial Maritime

governments continued the tradition of dealing with natives as distinct communities and sought to

respect those communities’ collective character. Patterson’s focus is on the community or tribal

aspect in defining “Indian”.

[193] For the reasons already given, the Court generally preferred the evidence of Wicken over

Patterson where there was a conflict. Both experts’ approaches are reasonable – one seeing matters

from the viewpoint of the native community; the other from the viewpoint of the bureaucrats.

However, in understanding what the situation was prior to 1867 and the problems to be addressed

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by the Framers, Wicken’s approach was more useful because it identified behaviour which was of

concern.

[194] Wicken’s opinion was that the situation of the Mi’kmaq and other native groups was more

complicated and reflected a long history of contact. In his view, the colonial governments dealt with

native people wherever they lived – on or off-reserve; in communities of people or in smaller

household units. Regardless of where they lived, how they lived or their racial complexion, the local

governments dealt with them as “Indians” under the government’s jurisdiction. When the federal

government assumed responsibility for “Indians” in 1867, they continued doing as the local

governments had done before.

[195] Patterson looked at the observations made by local and federal officials as recorded in

reports made in the late 19

th and 20th centuries to conclude that the reports showed a remarkable

continuity and confirmation of pre-Confederation community life. These reports discuss how, under

federal jurisdiction, the Mi’kmaq and other native communities engaged in a wide range of

economic pursuits both on and off-reserve (which was a departure from simply practising

agriculture on reserves, which had been an old measure of the success of native groups).

[196] Patterson’s point in making this comment is that whatever the impact of government policy

on the lives of Atlantic Canada natives, those natives maintained valued aspects of culture and

identity in their own way. This “continuity of community” indicates that the federal policy was to

protect deeply rooted societies and cultures.

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[197] Wicken, on the other hand, looked at the activities and movements of the Mi’kmaq and

Maliseet peoples themselves to illuminate the manner in which Indian policy was applied at the

local level. He points to evidence that demonstrates that these native people were pushed inland,

often on to reserves that were too small or of such poor quality that families were unable to make

their living through farming.

[198] The English and the French established relationships with the natives and developed Indian

policies but in much different ways.

[199] The French’s relationship with the natives was primarily of military alliance, of friendship

and respectful co-existence of the respective communities. The relationship with the natives was not

formalized or reduced to writing. It consisted of more informal visits by chiefs, the grant of military

honours to the chiefs and gifts of guns, ammunition, clothing and food stuffs.

[200] Although the natives became dependant on French goods (i.e. metal pots, guns), the

Mi’kmaq, Maliseet and Passamaquoddy retained much of their autonomy and freedom of action.

[201] Because of this dependence on trade for European goods, the natives of the area needed to

maintain a relationship with a European power.

[202] Unlike the French, the British established formal ties with the Mi’kmaq, Maliseet and

Passamaquoddy through treaties with the chiefs of tribes and through the policies of colonial

governors acting on directives from Britain. Although acting on general directives, the method and

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implementation was left to the colony. The basic requirement was that any colonial legislation

regarding Indians had to be in conformity with the laws of Britain.

[203] From 1725 to 1779 the colonial governors made treaties with the Mi’kmaq, Maliseet and

Passamaquoddy. These treaties were made between the chiefs of the various Indian tribes and the

governors including chiefs who were of mixed ancestry.

[204] Reciprocal promises made in 1725 and 1726 were part of a scheme to regulate relations

between natives, soldiers and settlers and more importantly to bring natives under British law.

[205] The British peace and friendship treaties were entered into in recognition of future

settlement and expansion as well as to break the strong ties that the tribes had with the French.

[206] After the Seven Years War, the British issued the Royal Proclamation of 1763 [1763

Proclamation]. It was a seminal document for all of British North America including the natives of

the continent.

[207] In addition to establishing new colonies and dealing with colonial general assemblies, the

Proclamation set out Britain’s plan in respect of unorganized and unoccupied land putting a

restriction on movement west of the Appalachian Mountains into the North American interior where

there were numerous natives and war or conflict with the settlers would be inevitable.

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[208] The 1763 Proclamation affirmed British control and authority over the manner by which

Indian lands would be purchased and surrendered. There was a need to address the frauds and other

mischief perpetrated on natives. Britain recognized an obligation to protect Indians and Indian

lands.

And whereas it is just and reasonable, and essential to our

Interest, and the Security of our Colonies, that the several Nations or

Tribes of Indians with whom We are connected, and who live under

our Protection, should not be molested or disturbed in the Possession

of such Parts of Our Dominions and Territories as, not having been

ceded to or purchased by Us, are reserved to them, or any of them, as

their Hunting Grounds. We do therefore, with the Advice of our

Privy Council, declare it to be our Royal Will and Pleasure, that no

Governor or Commander in Chief in any of our Colonies of Quebec,

East Florida, or West Florida, do presume, upon any Pretence

whatever, to grant Warrants of Survey, or pass any Patents for Lands

beyond the Bounds of their respective Governments, as described in

their Commissions; as also that no Governor or Commander in Chief

in any of our other Colonies or Plantations in America do presume

for the present, and until our further Pleasure be known, to grant

Warrants of Survey, or pass Patents for any Lands beyond the Heads

or Sources of any of the Rivers which fall into the Atlantic Ocean

from the West and North West, or upon any lands whatever, which,

not having been ceded to or purchased by Us as aforesaid, are

reserved to the said Indians, or any of them.

And We do further declare it to be Our Royal Will and Pleasure,

for the present as aforesaid, to reserve under our Sovereignty,

Protection, and Dominion, for the use of the said Indians, all the

Lands and Territories not included within the Limits of Our said

Three new Governments, or within the Limits of the Territory

granted to the Hudson’s Bay Company, as also all the Lands and

Territories lying to the Westward of the Sources of the Rivers which

fall into the Sea from the West and North West as aforesaid.

…

And whereas great Frauds and Abuses have been committed in

purchasing Lands of the Indians, to the great Prejudice of our

Interests, and to the great Dissatisfaction of the said Indians; In order,

therefore, to prevent such Irregularities for the future, and to the end

that the Indians may be convinced of our Justice and determined

Resolution to remove all reasonable Cause of Discontent. We do,

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with the Advice of our Privy Council strictly enjoin and require, that

no private Person do presume to make any purchase from the said

Indians of any Lands reserved to the said Indians, within those parts

of our Colonies where, We have thought proper to allow Settlement;

but that, if at any Time any of the Said Indians should be inclined to

dispose of the said Lands, the same shall be Purchased only for Us,

in our Name, at some public Meeting or Assembly of the said

Indians, to be held for that Purpose by the Governor or Commander

in Chief of our Colony respectively within which they shall lie; …

[209] For Nova Scotia, Britain instructed the governor to permit Euro-Canadian settlement so long

as natives were accommodated. Large tracts of land were given to settlers so long as there was no

claim or possession by natives.

[210] The first reserves were created in Nova Scotia during the 1760s. This was done usually by a

licence of occupation which continued a form of trusteeship between natives and government; a

feature that has under various guises continued to the present day.

(a)

Nova Scotia

[211] The situation of Nova Scotia and the Mi’kmaq in particular was used in evidence as

representative of the situation in Atlantic Canada and of the different natives in each colony.

[212] The Mi’kmaq were originally a fishing people. In the 1780s they moved away from the

coast. There is debate as to whether they were pushed inland by white settlers or moved inland for

their economic benefit to be able to better trade with the European settlers.

[213] In cases where the land was fertile, non-native settlers encroached on the land and

governments sided with the Euro-Canadian (or predominantly Euro-Canadian) settlers over the

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natives on the issue of encroachment. The end result was to marginalize Mi’kmaq participation in

the Nova Scotia economy causing families to live off-reserve or on and off-reserve and scattering

them across the province.

[214] By 1864 there were about 28 reserves set aside for Mi’kmaq but many were unoccupied. A

number of Mi’kmaq left the reserve, camping in various areas within what they considered to be

their own territory to fish, trap (in winter) and to gather wood for woodworking goods which they

would sell to merchants and farmers.

[215] Many of the Mi’kmaq wandered into Halifax or Sydney or Yarmouth which caused

problems with the Euro-Canadian urban population.

[216] Importantly, for this case, most of the Mi’kmaq population by at least 1864 was of mixed

blood of varying degrees.

[217] During this timeframe Indian agents compiled census data about natives living on and offreserve

but they did not always distinguish those people who inter-married. Sometimes they were

identified as “half-breeds”, sometimes not; sometimes half-breeds were treated as “Indians”, other

times not. Even where a half-breed self-identified as an “Indian”, he/she might be included in the

census as Indian but not necessarily so.

[218] The evidence establishes the diversity of people and degree of aboriginal connection which

fell under the word “Indian”.

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[219] The Court accepts the thrust of Wicken’s evidence that Mi’kmaq were treated as “Indians”

at that time despite the mixed blood component, and the Mi’kmaq’s preference to “wander” (as it

was then described) had an impact on the creation of the federal Indian power.

[220] In the 1840s, after authority over Indians transferred from the governor to the legislative

assembly, the policy was to assist the Mi’kmaq in becoming self-sufficient and not to rely on

government for food and supplies.

[221] The Mi’kmaq who migrated into the cities could not provide for themselves and they had to

receive government aid. By the 1850s many of the Nova Scotia Mi’kmaq were suffering from

poverty which required the legislature to further allocate funds to purchase supplies for these

Mi’kmaq people.

[222] The cost of supplying funds for Mi’kmaq needs was a serious political problem with

constant wrangling in the legislature. The potential cost of attempting to “civilize” the Mi’kmaq (to

make them more European in outlook, values and education) was significant. Wicken’s view was

that Nova Scotia could not afford this process. The colony did not have a taxing power and could

only raise the money through customs tariffs and the sale of surplus reserve land.

[223] The elimination of this burden was one of the benefits flowing from the creation of the

federal power over Indians.

Page: 64

[224] Prior to the Confederation process, Nova Scotia had control over Indians (the Mi’kmaq) and

their reserves. The Mi’kmaq included people of mixed ancestry who were treated as Indians. The

cost and administrative burden of the Indian population was increasing while the revenue base of

the colony (because of new British trade policy) was about to decline.

(b)

New Brunswick

[225] The situation in the New Brunswick colony was much like that of Nova Scotia although the

native groups were the Maliseet and Passamaquoddy. New Brunswick had been part of Nova Scotia

until 1784.

[226] Upon the creation of New Brunswick, the same Nova Scotia policies and approach to native

issues was assumed by the New Brunswick government and that government was economically in

much the same situation as Nova Scotia.

(c)

Prince Edward Island

[227] Not much is known about the Mi’kmaq on Prince Edward Island (at least according to the

experts who testified) but they were there at the time of Confederation.

[228] Three reserves were established on Prince Edward Island by private action – none had been

established by government. These private reserves were ultimately taken over by the federal

government. The colony’s power over Indians was transferred to the federal government under the

Terms of Union 1873.

Page: 65

(d)

Newfoundland and Labrador

[229] Although Newfoundland and Labrador did not become part of Canada until 1949, the

experiences in that colony became relevant to later discussions of the breadth of the term “Métis”

and the use of s 91(24) power.

[230] The indigenous people on the Island of Newfoundland, the Beothuk, became extinct before

the British colonial regime could establish any relations with them. Although other native groups

such as the Mi’kmaq, Montagnais and Montagnais-Naskapi peoples were on the Island after the late

1700s, they were nothing but trading relations with the British.

[231] In Labrador, as found by Justice Fowler in

Labrador Métis Nation v Newfoundland

(Minister of Transportation and Works)

, 2006 NLTD 119, [2006] 4 CNLR 94 [Labrador Métis

Nation

], there was a mixing of Europeans and Inuit along the coast resulting in the present day

Labrador Métis.

[232] The Labrador Métis did not occupy a single fixed community because they followed a

migratory life-style dictated by the seasonal presence of animals, fish and plant life. Because their

life was also driven by the pursuit of fishing, these Métis had a regional identification of settlement

much like that of the Métis in the Upper Great Lakes area (see

Powley, above, at para 25).

Page: 66

(2) Quebec/Ontario (Upper/Lower Canada)

[233] Both parties in their Memoranda of Fact and Law relied on Wicken’s evidence with respect

to general facts covering the period and this area from approximately the Royal Proclamation of

1763 to Confederation, most of which is well-known in Canadian history.

[234] The Royal Proclamation of 1763 provided for, among other things, government in Quebec.

The

Quebec Act of 1774, 14 Geo 3, c 83 (UK) (legislation of the British Parliament) created the

Quebec colony which encompassed much of what is now southern Ontario as well as southern

Quebec.

[235] In 1774 and continuing towards the end of the century, the Quebec colony had colonial rule

but no elected assembly. The

Constitution Act of 1791, 31 Geo 3, c 31 (UK), divided Quebec

generally along the Ottawa River into two provinces to become Upper and Lower Canada. That

legislation provided for an elected assembly for each of Upper and Lower Canada with a governor

general and an executive council but not responsible government.

[236] During this period the elected assemblies of the two colonies were in constant conflict with

their executive councils. This led to the armed rebellion of 1837 which resulted in Lord Durham’s

report recommending the union of Upper and Lower Canada into one colony, the United Province

of Canada with one assembly but two separate legislative councils. The

Union Act of 1840 (An Act

to Re-unite the Provinces of Upper and Lower Canada, and for the Government of Canada,

3 & 4

Vict, c 35) put this scheme into effect as of 1841 with an elected assembly of an equal number of

representations from Upper and Lower Canada.

Page: 67

[237] In what is now British Columbia, there were two colonies; Vancouver Island created by

imperial statute in 1849 and New Caledonia created by imperial statute in 1858. Both these colonies

were then amalgamated in 1866.

[238] By 1867 there were, in British North America, independent colonies in British Columbia,

Upper and Lower Canada (the United Province), New Brunswick, Nova Scotia, Prince Edward

Island and Newfoundland, each with their own experience in dealing with natives.

[239] Each colony had at least one piece of legislation dealing with natives.

[240] In what is now known as the Quebec-Windsor corridor, by the mid 1860s, there had been a

long period of settlement and interaction between natives and European settlers. As a result, several

reserves had been established in the area and there was extensive intermarriage between native and

non-native people. The extent of the intermarriage was such that there were few “pure blood”

natives left.

[241] Many of the natives engaged in farming on reserve land. They owned or had a right to own

a plot of land often 25-30 acres in size.

[242] These natives were integrated into the wage labour economy around them and often beyond

just the local area. They might move off the reserve at certain times of the year to fish and hunt but

always returned to the reserves.

Page: 68

[243] It was the expert opinion that the Framers of Confederation from the United Province (in

particular Sir John A Macdonald [Macdonald]) would have had extensive knowledge of the native

people in the Quebec-Windsor corridor grounded in a long period of contact which preceded 1763

and as a result of extensive governmental interaction with the natives after 1763. These Framers had

access to fairly detailed documents including six commission reports on native matters by various

governmental bodies between 1828 and 1859 to which reference will be made later.

[244] In the area outside the Quebec-Windsor corridor, in the area from Lake Simcoe to Sault Ste

Marie, the principal native people were Anishinabe. As one moved northward into the Canadian

shield, the land is less sustainable for agriculture and the Anishinabe people spent part of the year on

the reserves and part off the reserve hunting and fishing.

[245] The reserves in this particular area were established between 1830 and 1850 as a result of

the Royal Proclamation and treaty surrenders.

[246] North of this area through to the north shore of Lake Superior is the area covered by the

Robinson-Huron and Robinson-Superior treaties signed in 1850.

[247] Again, the principal people are the Anishinabe who, with the exception of Manitoulin

Island, did not live on reserves.

Page: 69

[248] Further north into what is known today as Northern Ontario and Northern Quebec, the land

was unsurrendered land which would be transferred after Confederation.

[249] In this more northerly area, the people tended to live in small nucleated settlements during

the summer along river systems or lakes and to migrate inland during the winter months in small

hunting bands. These native groups may comprise from one family up to five families moving over

a specific area.

[250] Particularly pertinent to this litigation, the people of this area included those of mixed

ancestry usually between native women and French or English fur traders. These “half-breeds”

sometimes lived within the native communities, sometimes not. Most of these half-breeds

“wandered” as did other natives.

[251] The Framers (including those who attended the 1864 Charlottetown Conference) would

have had limited knowledge of these people and their habits. There was some awareness as a result

of the Palliser and Hind expeditions and other reports dealing with the unsettled lands west and

north of Upper and Lower Canada.

[252] There is little dispute in the evidence that the Framers expected that these areas would be

surrendered by the British Crown after Confederation and would be an area open to settlement,

development and expansion where social reform would take place and, consistent with the mores of

the time, natives would be “civilized”.

Page: 70

[253] It was Wicken’s view that:

To do all these things, as I said before, they (the Framers) would

need … as in Nova Scotia, and other areas of the new Dominion,

they would need a broad power to deal with these people.

[254] Therefore, the native situation in Upper and Lower Canada prior to Confederation was

multi-layered and complex. The range of activities, lifestyles and composition of the native people

was diverse ranging from near urban communities such as Kahnawake (across from Montreal) to

the open spaces of northern Quebec and Ontario; from settled agricultural establishments on

reserves with housing and religious institutions which mirrored in some ways non-native life to

semi-nomadic remote circumstances. These more settled areas had their own unique problems

which underlined the need to protect the integrity of reserves and the need for a power to define

who could and who could not live on reserves. In these areas encroachment and abuse of natives by

Euro-Canadians (many of whom were rogues and scoundrels) was a significant problem.

[255] Two communities, Kahnawake and Six Nations/Grand River were described as

representative of the issues in Upper and Lower Canada.

(a)

Kahnawake

[256] This reserve across the St. Lawrence River from west-end Montreal was granted from the

Jesuit Fathers in 1667. Well prior to the Quebec Conference in 1864 a situation evolved with having

Euro-Canadian men living on the reserve and marrying Mohawk women.

[257] By the late 1840s/early 1850s, there was a set amount of land in the reserve, the native

control over which was jeopardized by “white men” marrying the native women. As the white men

Page: 71

married into the native community, they demanded access to the land and to the political councils

within the reserve.

[258] The government response was to amend the legislation to exclude white men from the

reserve by defining them in such a way that ensured that they did not have access to this land and

therefore could not enter into the councils of the Kahnawake reserve.

(b)

Six Nations/Grand River

[259] The problem in Six Nations was not marrying into the community but that of white squatters

living on the Six Nations reserve, particularly in Tuscarora Township.

[260] The Six Nations council continuously complained to the government who eventually

ordered the squatters off the land. In the late 1840s there was violence on the reserve as the

government tried to evict the squatters.

(c)

Impact of these Issues

[261] It was the Plaintiffs’ position that these and other similar issues and complaints would have

impressed on the Framers from Upper and Lower Canada that it was necessary to protect the

reserves by means of a statute and that they needed a power so that they could define who could and

who could not live on a reserve.

Page: 72

[262] It was Wicken’s opinion that those seeking a power in relation to “Indians” would have had

in mind that within that power there would be authority over relocation, settlement, assistance,

education, economic reform, social reform and “civilization”.

[263] Wicken also referred to other documents such as the writings of Father Marcoux, a

missionary among the Kahnawake Mohawks, who wrote in respect of half-breeds and “Indians”:

… ‘there is no difference, their education, which is exactly the same,

gives them the same ideas, the same prejudices, and the same

character, because they all speak the same tongue.’

Marcoux added that both half-breeds and “Indians” were treated exactly the same before the law

and had the same rights.

[264] The half-breeds and “Indians” had the common Mohawk language, the kinship due to

extensive intermarriage, cultural ties through such things as hunting, religion (Roman Catholicism)

and longhouse tradition.

[265] It was Wicken’s opinion that prior to Confederation the term “Indian” was understood, at

least by the Framers, to include half-breeds. In coming to that conclusion, in addition to the matters

referred to in the preceding paragraphs, Wicken relied on the pre-Confederation Indian statutes or

statutes in relation to Indians because “ … the law in this sense is a reflection of the social reality or

deals with problems which legislatures see as existing within society”.

[266] In von Gernet’s opinion, because of the diverse population of people with mixed blood

ancestry, the Framers had little interest in half-breeds who lived as “whites”. It was, in summary, his

Page: 73

view that while “Indians” included people of mixed blood, not all people of mixed blood were

understood to be “Indians”.

[267] Wicken’s counter to this proposition was that those of mixed blood were often

distinguishable by visual markers such as darker hair or darker complexion. A further problem was

that while many half-breeds did not want to be identified as “Indians”, they could not overcome the

racial stereotyping which existed among “whites”, particularly those in positions of authority. Such

people were marked as “Indian” because of their ties to natives and ancestry whatever their mode of

living may have been.

(3) Pre-Confederation Statutes

[268] Between 1842 and 1867, the British North America colonies passed various statutes relating

to Indians. British Columbia had six pieces of legislation; Lower Canada had three; Upper Canada

had six; Nova Scotia had nine; New Brunswick had two; Prince Edward Island had one and the

Province of Canada had seventeen.

[269] There was no definition of Indian in many of the statutes; many were highly situational.

However, examples of the statutes show that legislators were attempting to deal with pure blood and

mixed blood people, “marrying-in/marrying-out” issues, and off and on reserve situations. To that

extent these issues continue to the present day.

[270] Regarding the 1850 statute,

An Act for the better Protection of the Lands and Property of the

Indians in Lower Canada

, 13 & 14 Vict, c 42, Wicken was asked (as an historian) whether under

Page: 74

this statute one had to be pure blood to be defined as an Indian. It was his understanding that one did

not and that that conclusion “reflects what we have seen in the other historical documents before

this time period”.

[271] Section V of that statute provided that “Indians” includes all persons intermarried with any

such Indians and residing amongst them and their descendants. More specifically, it stated:

All persons residing among such Indians, whose parents on either

side were or are Indians of such Body or Tribe or entitled to be

considered as such;

would be “Indians”.

[272] For Wicken, this statute and others, as well as writings and documents of the era, establish

that “Indians” included half-breeds and that one did not have to live on a reserve or in an Indian

community to be an “Indian”.

[273] Wicken, on the basis of this understanding, concluded that the Framers would have intended

the word “Indian” in the constitution and the power which went with it, to be a broad power to be

able to deal with the diversity and complexity of the native population whatever their percentage

mix of blood relationship, their economies, residency or culture.

[274] Both von Gernet and Patterson dispute this understanding and conclusion holding that the

Framers would have had no interest in dealing with half-breeds who were not acknowledged as

members of a band or who lived as “whites”. These half-breeds, von Gernet said, would not be

viewed as deserving of the advantages afforded to disadvantaged Indians.

Page: 75

[275] It was Jones’ view that the Indian legislation of the 1850s appeared to offer maximum scope

for administrative flexibility where Indians were to include intermarried or mixed blood persons

who lived as members of a tribe or band and on the reserves of those tribes or bands. However,

because so much of “Indian” relations were policy driven, the Framers wanted and needed a broad

power to ensure maximum flexibility.

[276] In the Lower Canada statute –

An Act to repeal in part and to amend an Act, intituled , An

Act for the better protection of the Lands and property of the Indians in Lower Canada

, 14 & 15

Vict, c 59 (August 30, 1851), - the colonial government addressed a problem (one which continued

into the current era) of “marrying-in”. The problem at issue was white men intermarrying Mohawk

women and gaining access to land and political councils (discussed in paragraph 257 in relation to

Kahnawake).

[277] The amendment to the legislation was that women marrying-in are Indians, but men

marrying-in are not. And further, the children from the non-native women marrying-in, and their

descendants, are Indian. Therefore, these half-breeds were referred to as Indians. There was no

requirement for the half-breeds nor for their descendants that they live on a reserve to still be

defined as Indians.

[278] 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 20

th century that governments moved from this

Page: 76

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.

[279] A particular example of this inclusion policy is Macdonald’s own statute of June 10, 1857,

drafted by him –

An Act to encourage the gradual Civilization of Indian Tribes in this Province, and

to amend the Laws respecting Indians, 20 Vict, c 26

. This statute applied to what was then known as

Canada East and Canada West.

[280] 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.

[281] The importance of this statute and the policy behind it was that it gave authority over such

elements as relocation, settlement, assistance, education, economic and social reform. Arguably the

scope of these powers would be what was envisaged by Macdonald and others in creating the

federal power over Indians.

[282] Within the statute, a half-breed could be defined as an Indian and could live off reserve or in

an Indian community and retain that status.

[283] In the 1859

An Act respecting Civilization and Enfranchisement of certain Indians, 22 Vict,

c 9, the government enacted a consolidated statute. It provided that a) mixed blood persons could be

“Indians”, and b) such a person did not have to live on reserve or in an Indian community.

Page: 77

[284] The six Indian statutes in the Province of Canada passed between 1850 to 1861 were highly

situational and at times reflected the differences between Upper and Lower Canada. These statutes

covered a multitude of issues from receipt of annuities, shares in reserve land, protection from debt

collection to liquor sales and prohibitions.

[285] Any definition of “Indian” was established to suit the purpose of the statute. For example,

the requirement to live on reserve was important for the

An Act respecting Indians and Indian

Lands

, CSLC 1860, c 14, ss 10-11, which protected “Indian” property on reserve from seizure for

debt collection by white merchants. Other statutes had no such residency requirement.

[286] Under the Nova Scotia statute,

1859 Act Respecting Indians, such items as clothing or

blankets could be distributed to “Indians” regardless of whether they were of mixed ancestry, lived

on or off reserve or integrated into Indian communities.

[287] By the time of the Confederation Debates starting in 1864, the statutory landscape of

“Indian” legislation was that those of mixed ancestry were recognized as “Indians”; those of more

direct mixed ancestry (half-breeds) were also considered “Indians” for most purposes; that

residency on reserve was not necessarily a prerequisite to recognition as an “Indian”. The elements

of subjective and objective identification which have been more fully developed in recent case law,

was a sub-text of the legislative and societal view of who was an “Indian”.

Page: 78

(4) Pre-Confederation Reports re “Indians”

[288] At the time of the Confederation discussions, the Framers had available to them a number of

reports regarding the situation with respect to Indians in what became Canada. At least some of

these people had knowledge of the Indian situation, i.e. Macdonald was responsible for Indian

matters in Upper Canada.

[289] The early reports, such as that of Major General Darling of 1827-28 identified the tribes of

Upper and Lower Canada. In 1829 colonial Indian Affairs moved from military aspects to civil

administration under which a chief superintendent was to watch over the interests of all Indian

tribes.

[290] By 1845 the focus started to centre on the composition of such tribes. The Bagot

Commission was established in 1845 in the Province of Canada to inquire into the application of the

annual grants. Resident Superintendents (Indian Affairs Officers) provided answers to a variety of

questions. One aspect of that report is the extent of intermarriage and therefore the extent of mixed

ancestry within tribes. There are significant amounts of mixed ancestry in most of the tribes.

[291] The reports of Father Marcoux, the missionary at Kahnawake (then spelt Caughnawaga) to

the question “Amongst the Indians under your superintendence what is the proportion of halfbreeds”

is representative:

If by the word

Métis you mean those who are half or less than half

Indian, they are very numerous. At Sault St. Louis you would not

perhaps find ten pure Indians. The annual Presents have a few years

ago been unjustly taken from some of those half-breeds, while they

have been given to others who have less Indian blood and in other

villages no distinction is made …

Page: 79

[292] In 1858 the Pennefather Commission was established to address the best means of securing

the future progress and civilization of the tribes, and managing Indian property for the benefit of

Indians without impeding settlement of the country. The results in the Pennefather Report 1858 was

similar to that of Darling with respect to those of mixed blood living with Indian tribes. Pennefather

noted that in Lower Canada the Indians were of mixed descent (Euro-Canadian and native) who

continued their work as Canoemen and Voyageurs of the HBC or as raftmen and pilots on the St.

Lawrence. Mixed descent was so prevalent that Pennefather observed “… as scarcely to reckon a

single full blooded individual among their number …”.

[293] Palliser was sent to gather information about the environment, the value of land and

resources and the feasibility of constructing a railway between Canada and the northwest. He

concluded that there were no obstacles to the construction of a railway from the Red River to the

eastern base of the Rockies.

[294] The Palliser Report divided the inhabitants of the northwest into Indians, Esquimeau, whites

and half-breeds. Whites were described as mostly Orkney and Scots settlers and their descendants at

the Red River Settlement and half-breeds as offspring of whites and natives as well as their

descendants.

[295] The Palliser Report and another, the Hind Report of the same era, also on the matter of

building a railway, showed the variety of the inhabitants of the northwest and the diverse mix of

people with Indian ancestry.

Page: 80

[296] In the 1850s it was well-known that the lease to the Hudson Bay Company [HBC] of that

vast territory in the northwest and north (the bulk of present day Canada) was about to expire and

that it would not be renewed. The British Parliament established a Select Committee to report on the

HBC to the House.

[297] The Select Committee Report has already played a significant role in Canadian constitution

law. That Report was one of the principal documents referred to in the Supreme Court of Canada

decision in

In Re Eskimo Reference, above (the Eskimo Reference case discussed more fully later).

Both Wicken and von Gernet had their own views on what the Supreme Court of Canada did or did

not do. This area of debate is more properly one for the courts to deal with. The Court opined that

Eskimos (more properly the Inuit) are “Indians” under s 91(24) of the Constitution.

[298] The census information in the Select Committee Report referred to by the Supreme Court of

Canada judgment included the following comment:

“The estimates referred to are headed “Establishments of the

Hudson's Bay Company in 1856 and number of Indians frequenting

them.” After a long list of the names of the posts and localities and of

the number of Indians frequenting each post is appended the

following:

Add Whites and half breeds in Hudson’s

Bay Territory, not included ........... 6,000

Add Esquimaux not enumerated ............... 4,000

Total ................................. 158,960

----------------

The Indian Races shown in detail in the foregoing Census

may be classified as follows:--

Page: 81

Thickwood Indians on the east side of the

Rocky mountains ....................... 35,000

The Plain Tribes (Blackfeet, &c) ........... 25,000

The Esquimaux .............................. 4,000

Indians settled in Canada .................. 3,000

Indian in British Oregon and on the

Northwest Coast ....................... 80,000

-------

Total Indians .................... 147,000

Whites and half-breeds in Hudson’s Bay

Territory ............................. 11,000

-------

Souls ............................ 158,000”

[299] This census data has led to the argument that half-breeds were not considered Indians

because they are not listed under “Indian Races”.

[300] In addition to the census date, the Report also contained a narrative of the problems with

half-breeds at the Red River Settlement – problems which the new government of Canada would

face as it expanded west:

Half-breeds.

Difficulty in governing half-breeds, as at Red River,

Ross

129-131 --- Reluctance of the English half-breeds to settle, Rae

655-659 --- Doubt as to there being any difficulty in governing the

English half-breeds,

ib. 660, 661--The half-breed population is in

some places largely increasing,

ib. 662.

There are about 4,000 half-breeds at Red River,

Sir G. Simpson

1681, 1682 --- The increased instruction of the half-breeds has not

created any increased desire on their part for a free trade in furs,

ib.

1686-1694.

Dissatisfaction among some of the half-castes at Red River on

account of the monopoly of the fur trade,

Sir J. Richardson 2942,

3128 --- Discontented state of the half-breeds at Red River, because

they were not allowed to distil spirits from their own corn, or to

traffic in furs,

Crofton 3232-3246.

Progressive social and intellectual development of the half-castes

at Red River,

Right Rev. Dr. Anderson 4383. 4421-4429 ---

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Dependence to be placed in the half-castes as settlers,

ib. 4384, 4416,

4425.

Explanation as to a claim made by the half-breeds upon the

Hudson’s Bay Company in consequence of their having been

prohibited by the Americans from hunting buffalo south of the 49

parallel,

McLaughlin 4903-4907 --- Neither physically nor

intellectually are the half-breeds at Red River inferior to the Whites,

ib.

4992-4996 --- High position of the American half-breeds at St.

Peter’s,

ib. 4997-4999.

Large proportion of half-breeds in the Red River Settlement,

Caldwell

5363 --- Troublesome conduct of the half-breeds when

witness arrived at Red River some years ago; they require a stringent

mode of government,

ib. 5364, 5372 --- Means of livelihood of the

half-breeds,

Caldwell 5365-5368 --- Good social position of some of

the half-breeds

ib. 5573, 5574.

[301] The census report confirmed the diversity of the Métis “half-breeds”, both at the Red River

Settlement and elsewhere on the Prairies, and the restrictions on their conduct similar to that

imposed on natives (i.e. liquor) by the HBC.

(5) Pre-Confederation Treaties

[302] One of the powers and obligations which the new federal government would take over from

the British Crown was treaty-making and treaty responsibilities. Prior to Confederation, there was a

significant history of treaty relationships with the natives. The treaties were not “one size fits all”

but served different purposes at different times and therefore each had their own scope, provisions

and characteristics.

[303] The treaties in Nova Scotia established between 1725 and 1779 were entered into between

the British government and the Mi’kmaq and Maliseet. These “Peace and Friendship” treaties were

very different from the later numbered treaties of Western Canada. In particular, the Peace and

Page: 83

Friendship treaties were not treaties of cession, did not provide for annuities nor for the provision of

gifts. Further, they did not contain the element of wardship found in later treaties. These treaties

were a set of reciprocal obligations, based on acceptance of British law and sovereignty and

designed to regulate interactions with settlers.

[304] For purposes of this case, one important feature of treaty negotiations was that those natives

of mixed ancestry were not excluded; indeed some played a leadership role in the operation of the

treaties. As some of the experts on each side agreed, leaders such as Paul Laurent and several Chiefs

who signed the Robinson Treaties were of mixed ancestry. Chief Simon Kerr of the Six Nations was

a “quarter blood”.

[305] In the early 19

th century Britain and the natives of Upper Canada signed various treaties of

surrender whereby the native group surrendered land and Britain provided a one-time cash payment.

These treaties did not contain the features of annuities or wardship.

[306] In 1850 William Robinson negotiated two treaties in the Upper Great Lakes region; the

Robinson-Huron Treaty and the Robinson-Superior Treaty. The importance of these treaties, beside

their particular importance to the regions and its people, is that these treaties were the model for the

post-Confederation numbered treaties in Western Canada. As Jones outlined in her evidence, these

treaties featured annuity payments in perpetuity, recognition of a perpetual ongoing relationship

between the Crown and treaty signatories and the inclusion of hunting and fishing rights.

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[307] The spark for the Robinson treaties was the Mica Bay conflict of 1849 in which half-breeds

and pure blood natives acted against a mining venture that they considered was threatening their

lands. There was a perceived need to control the pure bloods and half-breeds as a group because

they could act collectively.

[308] I accept Wicken’s conclusion that this Mica Bay event would have caused those Framers

who knew of it to want a constitutional power to control circumstances that could lead to this type

of conflict. Specifically, as Wicken found, there were close cultural, linguistic and social ties

between those known as half-breeds and pure bloods in the Lake Huron and Lake Superior region.

[309] As a result of these ties, there was an issue as to the extent to which the half-breeds had any

claim to a share in remuneration under treaty. In the report of the surveyors Vidal and Anderson

who were sent to enumerate the native population, they described the matter as “determining how

far half-breeds are to be regarded as having a claim to share in the remuneration awarded to Indians

as they can scarcely be altogether excluded without injustice to some”. In a similar vein, John

Sivansten, head of the HBC post at Michipicoten (and himself a half-breed) claimed that some halfbreeds

had a better claim to Treaty than some of the Indians.

[310] As outlined in Jones’ evidence, Robinson knew of these claims. He spoke Ojibway and

knew the area. In 1850 when pressed by some Chiefs to include the half-breeds in treaties, he left

the matter for the Chiefs to determine.

As the half-breeds at Sault Ste. Marie and other places may seek to

be recognized by the Government in future payments, it may be well

that I should state here the answer that I gave to their demands on the

present occasion. I told them I came to treat with the chiefs who were

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present, that the money would be paid to them – and their receipt was

sufficient for me – that when in their possession they might give as

much or as little to that class of claimants as they pleased.

[311] Robinson counted half-breeds in the population subject to the treaties for purposes of

calculating overall annuities owed. When, at a later date, the overall annuities were converted to

individual annuities, the half-breeds continued to be paid and were enumerated separately for that

purpose.

[312] The half-breeds of the Great Lakes included the Métis at Sault Ste. Marie considered by the

Supreme Court of Canada in

Powley, above.

[313] The evidence in that case was that while these Métis had a separate identity, they had close

ties with the “Indians” of the North Shore. Some Métis “took treaty” and lived on the Batchewana

and Garden River Reserves. At Garden River, the Métis occupied a separate part of the reserve

known as “Frenchtown” indicating that they maintained their separate identity after taking treaty.

[314] Other Métis did not take treaty and were members of the historic Métis community that was

found to have s 35 rights in

Powley, above.

[315] There was no evidence that those who took treaty were required to demonstrate that they

lived with “Indians”, were members of “Indian” tribes, or followed an “Indian” way of life.

[316] The feature of Métis opting in to treaty or not became a very important post-Confederation

feature in the new province of Manitoba and the use of the “scrip” system. The scrip system, as

Page: 86

described earlier, was used to purchase or extinguish any “Indian title or claim” held by individual

Métis. It began to be used in Manitoba in 1870, in the NorthWest in the 1880s and in the areas of

Treaties 8 and 10. It was used up until the 1920s. The issue of whether Métis, particularly in and

around the Red River Settlement, had “Indian title” is and has been a hotly debated matter; as

discussed later in these Reasons.

[317] I accept the Plaintiffs’ evidence and argument that this pre-Confederation treaty experience

would suggest that Canada, when taking over the British power over Indian Affairs, would need to

be able to (and intended to) address at least:

•

the establishment and maintenance of peaceful relations with natives of all different

varieties;

•

the payment of one-time cash amounts for the surrender of native interests in land;

•

the payment of ongoing annuities;

•

the creation and acceptance of surrenders of reserve;

•

the recognition, pacification, control and dealing with interest in land of Métis who

were seen as distinct in some respects from “Indians”, who did not live with Indians,

who were not necessarily members of Indian tribes or who not necessarily followed

an “Indian” way of life.

[318] This experience and recognized need speaks to the requirement for and understanding that

the s 91(24) power had to be sufficiently broad that the federal government could address a wide

range of situations, in a wide range of ways covering a diverse composition of native people.

Page: 87

(6) Synopsis: Indian Power Pre-Confederation

[319] Wicken and von Gernet have a fundamental disagreement as to the understanding of the

term “Indian” generally and particularly by those engaged in the Confederation process.

Wicken concludes that the great variety of people with mixed blood and the variety of

lifestyles of all people with Indian blood lead to an understanding that “Indian” was and should for

constitutional purposes be a broad term.

Von Gernet finds in this variety the very reason why there was no such understanding and

that half-breeds, particularly those that lived like “Euro-Canadians”, were of no interest to

governments as “Indians”. Von Gernet tied “Indianness” to living with and being part of a tribe.

[320] Jones is of the same general opinion as Wicken in part based on the fact that people of some

native Indian blood were included in treaties and the distributions related thereto. Her opinion was

that there was a general understanding that “Indian” included those with native blood and those

intermarried with natives.

[321] These Plaintiffs’ experts appear to agree that the term “Indian” also had to be understood in

policy terms. The particular statutory definition could change from time to time depending on the

policy objectives of the legislation.

[322] These same experts also accept that the Framers were creating a constitutional power which

would be different from a statutory power: the power to make laws regarding “Indians” being

broader than the statutory definition of “Indian”.

Page: 88

[323] Given the history outlined and for reasons given earlier for generally preferring the

Plaintiffs’ experts, Wicken’s opinion as to the understanding of what type of power the Indian

power need be is accepted. The latter point concerning whether a constitutional power is necessarily

broader than a statutory definition is a matter of law for the courts to decide but in this case, it is an

accurate reflection of the law.

B. Confederation

(1) Genesis

[324] The general story of Confederation is so well-known in Canada that the courts can take

judicial notice of most of the historical facts. In addition, the following description of events is

supported by all experts’ evidence in this case. The point of departure in the expert evidence is the

significance to be attributed to events, statements and documents.

[325] In the late 1850s into the early 1860s, the colonies of Canada, Nova Scotia and New

Brunswick had acquired considerable debt from railroad construction and the pooling of the debt

was thought that it might provide some relief.

[326] Britain was pulling away from its colonial commitments, attempting to reduce its colonial

expenditure, and maintain the trade advantages with the colonies while increasing its trade with

Europe including the use of Baltic states for raw materials.

Page: 89

[327] The Province of Canada, particularly Upper Canada, had become a politically dysfunctional

legislature. Broadening the political components was thought, certainly by Macdonald, to be a way

out of this political mess.

[328] By 1864 the U.S. had the largest standing army in the world, had just finished a civil war

and elements in the U.S. intended not only to settle their western areas more fully but considered

expansion or annexation of the western parts of British North America to be a viable political and

economic goal.

[329] The Maritime area was driven by concerns that the colonial preferential tariff on goods to

Britain was declining, that the Reciprocal Treaty with the U.S. was to end, and the loss of populace

from the region. Representatives of Nova Scotia, New Brunswick and Prince Edward Island

planned to meet in Charlottetown in September 1864 to discuss Maritime Union (Charlottetown

Conference).

[330] As a result of political turmoil in the Province of Canada, representatives of Canada

requested an opportunity to join the Conference. Newfoundland could not attend.

[331] Of the 24 delegates to the Charlottetown Conference many became important Confederation

figures – Tilley, Pope, Macdonald, Cartier, Galt, Langevin and Tupper. The principal result of the

Conference was the decision to have a federal union rather than a legislative union.

Page: 90

[332] There is no documentary evidence of any reference at the Charlottetown Conference to

Indians or Indian territory/land, despite the development of a comprehensive list of the powers to be

divided as between the “Federal Legislature” and the “local legislature”. An interesting side note is

that naturalization was to be federal but immigration was to be local.

[333] A month later in October 1864, thirty-three delegates (from Canada, New Brunswick, Nova

Scotia and Prince Edward Island) gathered in Quebec (Quebec Conference 1864) to move the

process of confederation forward. The Quebec Conference developed 72 Resolutions which were

turned into the

British North America Act – the present Constitution Act, 1867.

[334] Again, without any recorded discussion or documentation, the power over “Indians and

Lands reserved for the Indians” was included in relation to which the “General Parliament” had the

power to make laws.

[335] At the London Conference in November 1866, the 16 delegates representing the Canadas,

Nova Scotia and New Brunswick met with British officials to draft the

British North America Act

1867

based upon the 72 Resolutions.

[336] A startling feature of the “Indian power” is that there was no discussion of the power, of the

need to control Indians or of what constituted Indians. In the period 1858 to 1867 when there is a

record of discussions by delegates to the Confederation Conference about the range of topics from

political deadlock, to education, religion, local autonomy, fear of U.S. annexation and expansion

Page: 91

into the north-west (northern Ontario to Alberta), there is not one reference to “Indians” or the issue

of what level of government should be responsible or who was to be included in this power.

[337] Unlike so much of federal-provincial relations, the power over Indians was not one that was

fought over or bargained over between governments. That was the case in 1864 and is the case now.

[338] This has led to the conclusion that the Indian power was not an important power, critical to

the purposes of Confederation. That conclusion is countered by the proposition that given the

purposes of Confederation, the power over Indians was so clearly necessary for the federal

government that there was no need for discussion. Given the history of Confederation and

subsequent events, this latter conclusion is the more reasonable one particularly given the legal

requirement to look at the purposes of legislation in construing its provisions.

(2) Objects and Purposes of Confederation

[339] The Supreme Court of Canada has concluded that a (not “the”) dominant intention of the

creation of the

British North America Act, 1867 was the establishment of a new political nationality

and its counterpart, the creation of a national economy.

A dominant intention of the drafters of the British North

America Act

(now the Constitution Act, 1867) was to establish “a

new political nationality” and, as the counterpart to national unity,

the creation of a national economy: D. Creighton, British North

America Act at Confederation: A Study Prepared for the Royal

Commission on Dominion-Provincial Relations (1939), at p. 40. The

attainment of economic integration occupied a place of central

importance in the scheme.

“It was an enterprise which was consciously adopted and

deliberately put into execution.”: Creighton,

supra; see

also

Lawson v. Interior Tree Fruit and Vegetable

Page: 92

Committee of Direction

, [1931] S.C.R. 357, at p. 373.

The creation of a central government, the trade and

commerce power, s. 121 and the building of an

transcontinental railway were expected to help forge this

economic union. The concept of Canada as a single

country comprising what one would now call a common

market was basic to the Confederation arrangements and

the drafters of the

British North America Act attempted to

pull down the existing internal barriers that restricted

movement within the country.

Black v Law Society (Alberta)

, [1989] 1 SCR 591, 58 DLR (4th) 317

[340] Consistent with the Supreme Court of Canada’s conclusion, Wicken confirmed that from an

historical perspective, the objects of Confederation were expansion, settlement, building a railway

and development of a national economy. These objects can be divined from the text of the

British

North America Act, 1867

itself.

[341] In Wicken’s opinion, which I accept, the purposes of Confederation relevant to this case are:

•

The expansion of British North America into the Northwest and towards British

Columbia in response to the pre-Confederation economic and political crisis.

•

The eventual absorption of the Northwest and British Columbia into Confederation.

•

Integration of the Atlantic colonies (Nova Scotia, New Brunswick, Prince Edward

Island and Newfoundland) with Central Canada. The intent to absorb

Newfoundland, Prince Edward Island and British Columbia as well as Rupert’s

Land and the Northwest Territories is seen in s 146 of the

British North America Act

1867

. Section 147 shows advanced plans for including Newfoundland and Prince

Edward Island in the Union.

Page: 93

•

To settle the Northwest with farms which would become a new market for Central

Canada manufacturing.

•

The maintenance in the East of the current population and the prevention of outmigration.

•

The settlement of British Columbia particularly Vancouver Island and the Lower

Mainland.

•

The building of a transcontinental railway which was essential to creating a national

economy and to settle the unsettled areas particularly the Northwest.

[342] According to Wicken, the intercontinental railway was central and integral to the Framers’

intentions at Confederation. In that regard:

•

Joseph Howe saw the importance of the railway but more so in terms of permitting

Nova Scotia to tap into the market in Central Canada.

•

Palliser had opined on the feasibility of constructing a railway from the Red River to

the eastern base of the Rocky Mountains.

•

Section 145 of the British North America Act 1867 created a duty on the federal

government to provide a railway linking the Province of Canada with Nova Scotia.

•

The British Columbia Terms of Union s 11 provided that the Government of the

Dominion would build a railway from the Pacific through the Rockies connecting

British Columbia to Central Canada.

•

The Prince Edward Island Terms of Union required the federal government to

maintain a steamship service linking Prince Edward Island to the intercontinental

railway.

Page: 94

•

The Framers intended to expand the economy which included expanding settlement

throughout the country.

•

The expansion of the economy was to be accomplished through uniting the East and

West through a railway, expanding agricultural settlement and developing the

manufacturing industry in the urban areas which would lessen the dependency on

U.S. goods.

[343] This expansionist view of Confederation was attributed to Macdonald. In that respect he had

the support of Cartier, Brown, Galt, McGee and others.

[344] Patterson criticizes Wicken and this perspective on Confederation citing the fact that many

Atlantic Canada leaders did not share this view.

[345] I conclude that Patterson’s narrow and local perspective does not accord with the better

evidence supporting the expansionist view of Confederation and the critical role Macdonald played

in formulating it, drafting it and implementing it. Most importantly, the better view is supported by

the terms of the

British North America Act, 1867 and the historical context of a nation being built

including the absorption of Rupert’s Land and the obligations toward natives inherent in that

transfer.

[346] The Defendants accept that at Confederation the Framers had experience in dealing with

“Indians”; the colonies had a long history of legislation and policies in this area. Macdonald was at

the time Attorney General for Canada West; George Étienne Cartier [Cartier] for Canada East.

Page: 95

William MacDougall, another Framer, had been the Commissioner of Crown Lands and Chief

Superintendent of Indian Affairs for Canada West and had negotiated the Manitoulin Island Treaty

of 1862. Langevin was Solicitor General of the Province of Canada and later Secretary of State and

Superintendent General of Indian Affairs.

[347] The Defendants also accept that the Framers would have known that Indians were located in

the Province of Canada, that they included persons intermarried with them and who were accepted

as members of the band.

[348] The Framers did not specifically acknowledge that there were those of mixed blood and

their descendants but given the evidence that fact can hardly be denied.

[349] The Framers also knew of “Indians” outside the Dominion and that Rupert’s Land and the

Northwest Territories were about to become part of the Dominion.

[350] The Defendants accept that the assignment of Indians and Lands Reserved for the Indian to

the federal government would be viewed as facilitating the management of Indian Affairs in the

new territories and would promote uniformity in the administration of Indian Affairs throughout

Canada.

[351] However, the Defendants do not accept, but the Court does, the expert opinion evidence

that:

Page: 96

•

in the Northwest in particular, a large nomadic native population potentially stood in

the way of expansion, settlement and railway construction.

•

the relationship between the objects of Confederation in terms of settlement and

expansion and the native people was critical to Confederation.

•

the idea of railway construction and federal responsibility for “Indians” are

interconnected.

•

the Framers needed to be able to reconcile native people to the building of the

railway and other measures which the federal government would have to take.

•

maintaining peaceful relations with the “Indians” would protect the railway from

attack.

•

natives needed to be reconciled with the expansion westward to ensure the larger

development of the nation.

•

lands occupied by natives would have to be surrendered in some fashion.

[352] This leads to the purposes of s 91(24) at least from an historical perspective. The Defendants

put forward no opinion evidence on the purpose of the provision as that was not within their

experts’ mandate.

[353] The Plaintiffs’ two principal experts put forward slightly different but complementing

summaries of the purpose of the provision.

(a) Wicken concluded that the purpose was:

•

to control native people and communities where necessary to facilitate

development of the Dominion.

Page: 97

•

to honour the obligations to natives that the Dominion inherited from Britain

while extinguishing interests that stood in the way of the objects of

Confederation.

•

eventually to civilize and assimilate native people.

(b) Jones, who has also recognized the government’s goal of “civilize and assimilate”,

summarized the purpose of s 91(24) as:

This power was integral to the central government’s plan to

develop and settle lands in the North-Western Territory. The

Canadian Government at Confederation inherited principles

and practices of Crown-Aboriginal relations that had been

embedded in British North America for well over one hundred

years by 1857. These included the recognition of Aboriginal

title in the “Indian territories” and protocols recognizing the

relationship between Aboriginal nations and the Crown.

Canada also inherited a British policy of “civilization” of the

Indians, in place since 1830s.

[354] I accept these experts’ opinion on the purposes of s 91(24) from the viewpoint of those

creating the power. The opinion is consistent with the evidence relied on both prior to and

subsequent to 1867. The post-Confederation period and the manner of dealings between natives and

the federal government provide insight into the meaning and scope of the power, absent any 1867

contemporaneous documents of discussion.

C. Post-Confederation

(1) Rupert’s Land

[355] It was well-known at the time of Confederation that the new Dominion would take over

Rupert’s Land. On December 16 and 17, 1867, in a joint address of the House of Commons and the

Page: 98

Senate to the Queen requesting an Order-in-Council authorizing the transfer of Rupert’s Land to

Canada, a reference to “Indians” was made as follows:

And furthermore, that upon transference of the territories in question

to the Canadian Government, the claims of the Indian tribes to

compensation for lands required for purposes of settlement, will be

considered and settled in conformity with the equitable principles

which have uniformly governed the British Crown in its dealings

with the aborigines.

[356] The new federal government agreed with the Hudson’s Bay Company, on March 22, 1869,

to the terms of transfer of Rupert’s Land, which agreement included the following:

8. It is understood that any claims of Indians to compensation for

lands required for purposes of settlement shall be disposed of by

the Canadian Government in communication with the Imperial

Government, and that the Company shall be relieved of all

responsibility in respect of them.

[357] The terms of the transfer were incorporated into the Rupert’s Land and North Western

Territory Order dated June 23, 1870 and the lands covered by the Order were transferred to Canada

as of July 15, 1870.

[358] The Rupert’s Land and North Western Territory Order forms part of the Constitution of

Canada. Section 8 of the agreement referred to in these Reasons at paragraph 356 appears as s 14 of

the Rupert’s Land and North Western Territory Order. The Joint Alliance of December 1867

referred to in paragraph 355 is an appendix to that Order.

[359] I accept Ms. Jones’ explanation of the historical context of these undertakings that it was

critical to the new Canada to create an environment of safety and security for the settlers. A part of

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creating that environment was extinguishing Indian claims. Canada needed possession of those

lands for the construction of the transcontinental railway but also for the general national settlement

and development of the west.

(2) Post-Confederation Statutes - 1867-1870

[360] In the absence of Confederation debate evidence as to the scope of the Indian power, the

early post-Confederation statutes give some indication of the intent of the power and its scope.

[361] The first federal statute after Confederation relating to “Indians” was the

1868 Secretary of

State Act

(An Act providing for the organisation of the Department of the Secretary of State of

Canada, and for the management of Indian and Ordinance Lands

, 31 Vic 2, c 42) which

reorganized Indian Affairs and placed it under the control of the Secretary of State.

[362] The Act contained a definition of “Indians” at s 15:

15. For the purpose of determining what persons are

entitled to hold, use or enjoy the lands and other immoveable

property belonging to or appropriated to the use of the various tribes,

bands or bodies of Indians in Canada, the following persons and

classes of persons, and none other, shall be considered as Indians

belonging to the tribe, band or body of Indians interested in any such

lands or immoveable property:

Firstly, All persons of Indian blood, reputed to belong to the

particular tribe, band or body of Indians interested in such lands or

immoveable property, and their descendants:

Secondly, All persons residing among such Indians, whose

parents were or are, or either of them was or is, descended on either

side from Indians or an Indian reputed to belong to the particular

tribe, band or body of Indians interested in such lands or immoveable

property, and the descendants of all such persons; And

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Thirdly: All women lawfully married to any of the persons

included in the several classes hereinbefore designated; the children

issue of such marriages, and their descendants.

[363] From an historical perspective Wicken testified that the Act included as “Indians” both halfbreeds

and those people living off reserve.

[364] While the actual meaning of the statute is a matter of law, I concur with Wicken as to this

aspect of the definition.

[365] The

Secretary of State Act was followed in 1869 by the unwieldy named An Act for the

gradual enfranchisement of Indians, the better management of Indian Affairs and to extend the

provisions of the Act 31

st Victoria Chapter 42

, 32-33 Vict, c 6.

[366] This Act had a number of critical components:

(a) it introduced, for the first time in a statute, the “marrying out” rule whereby an

Indian woman who married a non-Indian man would lose her status, as would her

children. This appears to be in response to the problem of non-Indian squatters.

(b) in respect to the entitlement to annuities, persons of less than one-fourth Indian

blood who were born after 1869 could be disentitled if the Chief gave a certificate to

that effect which was sanctioned by the Superintendent.

enfranchised Indian (in summary, a person more closely resembling a member of

Euro-Canadian society – such as those natives who became lawyers or church

ministers) ceased to be an Indian except as to annuity and other moneys of his tribe,

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band or body of Indians to which he belonged. (This is a restricted form of opting

out.)

(d) the Act did not contain a definition of Indians but provided that this Act be read

together with the

1868 Secretary of State Act.

[367] In summary, by 1869 there was no comprehensive Indian Act but there was a broad

definition of Indian in place under the

Secretary of State Act except that in 1869 the “marrying out”

rule had been formalized but qualified to the extent that those who married out and their

descendants could still be “Indians” for the purposes of receiving annuities.

[368] This legislation was not extended to Manitoba until 1874.

(3) Aboriginal Population of the Northwest

[369] While the situation in Eastern Canada regarding natives and the degree of mixed peoples

makes the analysis of the issues in this case complex, the situation in the “Northwest” (present day

Manitoba, Saskatchewan, Alberta, Northwest Territories, Yukon and parts of northwestern Ontario)

is even more so. The mix and variation of the aboriginal people was extensive and showed few, if

any, clear dividing lines.

[370] The various situations and events in the Northwest occupied a significant amount of the

Plaintiffs’ evidence in this case. It is also instructive of the historical understanding of who was an

“Indian” at or around the time of Confederation and later, as the situation in the Northwest was

dynamic.

Page: 102

[371] Ms Jones laid out in clear terms the nature of the aboriginal population mix and their status –

the Métis at the Red River Settlement were not homogenous. Some had small farms that they

maintained throughout the year laid out in strips from the riverbank in the same manner as in

Quebec along the St. Lawrence River. Others were out hunting buffalo four to eight months of the

year while others were engaged in woodland hunting and trapping of small furs.

[372] As Jones said, there was a wide spectrum of pursuits in the Métis population at the Red

River Settlement; some had lives that differed little from those that government called Indians and

there was a similar spectrum of pursuits by those the government did call Indians – for example, at

St. Peters Mission in Manitoba, whether called “Indians” or “Half-Breeds”, most were farmers.

(This was not unlike the situation on the Six Nations Reserve in southern Ontario where many on

the reserve were relatively educated, and most lived by farming.)

[373] In

The Treaties of Canada with Indians of Manitoba and the Northwest Territories

(Alexander Morris,

The Treaties of Canada with Indians of Manitoba and the Northwest Territories

(Toronto: Belfords, Clarke & Co, 1880)), relied on by Jones as accurate history, Morris described

three classes of half-breeds of that area in 1876: those with farms and homes, those living with

Indians and identifying with them and those who did not farm but lived like Indians by pursuing

buffalo.

[374] The description of half-breeds was consistent with the Department of Interior Annual Report

for 1876 which described four classes of half-breeds: those that followed the customs and habits of

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Indians; those that have not altogether followed the ways of the Indians; those that followed the

habits of Euro-Canadians more than Indians; and those that followed the habits of Euro-Canadians

and have never been recognized as anything but half-breeds.

[375] The definitional problem for government was well summarized by Jones:

The government, in a typically 19

th century way, would like to … be

able to divide Half breeds into neat categories, but the remarks of

many observers on the ground indicate that this is not a simple task.

[376] One of the modern difficulties with the evidence of the immediate post-Confederation era

was that 19

th century values in Canada are racist by modern terms. People were to be neatly divided

by race (or religion or language). When it came to aboriginal peoples, the evidence is compelling

that there were “whites” and there were the “others” whether called Indians, natives, half-breeds or

even less complimentary terms. One was on one side of this divide or the other.

[377] Ms. Jones characterized the purported efforts by some Red River Métis to distinguish

themselves from the “uncivilized Indians” as the attempt, in a frontier town of 10,000, to make little

distinctions and most importantly motivated by the sense that “the closer you were to being

considered white, the higher you were on the social scale”.

[378] This racial typology of “pure blood Indians” and “half-breeds” (even terms such as “Red

Indians”, savages, etc.) reflect concepts of racial identity and bloodlines which has not only been

discredited but which history has taught, as with the Nuremberg Laws or apartheid, is repulsive.

However, it is necessary to understand that perspective to understand not only the evidence but to

assess what constitutional power was being exercised when governments enacted legislation or took

Page: 104

some particular action or established various policies. This was a phenomenon not restricted to the

Northwest as Dr. Patterson conceded. There were similar racist attitudes and language used in

respect of the Mi’kmaq and other natives in Eastern Canada.

[379] This racial stereotyping and the practices and policies of government, somewhat similar to

the U.S. experience with blacks, had the effect that many individuals tried to distance themselves

from the stigma of being identified as “Indian”.

[380] The dichotomy between Indian/Half-breed and Whites, between civilized and

uncivilized/savage was further complicated by the varying degrees of civilized behaviours or ways

of life practised by the Indian/Half-breeds. Even Dr. von Gernet acknowledged this variation and

accepted a number of specific examples:

(a) The Pennefather Report included descriptions of the Iroquois of St. Louis. These

people maintained an agricultural industry and had stone houses, a church, a school

and met Bishop Taché’s description of having a “civilized lifestyle”. Regardless,

they still clung to their roving habits, like some of the Métis of the Red River

Settlement.

(b) That same Report also included a description of the Iroquois of St. Regis. They were

all Roman Catholics, contained a number of people of mixed descent and had

substantially built houses, a church and a school. They were employed as raftsmen

and pilots for the HBC. They enjoyed the attributes of civilization and were not

entirely unlike the Red River Métis.

Page: 105

They were Roman Catholic, had an agricultural industry, worked in both Canada

and the United States, had stone houses and a school. They bore some of the

characteristics of 19

th century “civilization”.

(d) Pennefather also considered the Hurons of La Jeune Lorette. They were described as

all half-breeds, Roman Catholics and had two schools, cultivated gardens and stone

houses. They were described as one of the most advanced in civilization in the

whole country.

(e) Simcoe Kerr was a lawyer and a Six Nations Grand Chief but clearly considered an

Indian.

(f) In a typically 19

th century comment, Alexander Ross said that some Métis are

respectable in their habits while others are as “improvident as the savages

themselves”.

(g) Minutes of a meeting of the Governor-in-Council of Assiniboia in 1869 recorded

Riel as saying that the Métis “were uneducated and only half-civilized and felt if a

large immigration were to take place they would be crowded out of a country which

they claim as their own but they knew they were, in a sense, poor and insignificant,

that they felt so much as being treated as if they were more insignificant than they, in

reality, were”.

(h) In sum, the “Half-breed” communities varied significantly along the spectrum of socalled

“civilization”, as did other aboriginals. To that extent, von Gernet agreed with

Wicken’s reference to the diversity of the aboriginal population.

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[381] The evidence established that the aboriginal population was mixed, varied and interrelated.

It was not possible to draw a bright line between half-breeds/Métis and Indians.

[382] There were parallels between the mixtures and varieties of the aboriginal people of the

Northwest and those in Eastern Canada. These people lived in a variety of conditions ranging from

near Euro-Canadian society to that of their more traditional way of life.

[383] There was a certain and indeed a significant degree of social stigma attached to being

“Indian” but Euro-Canadian society seldom accepted even the most “civilized” as part of the

general population. The fact of native connection remained as a significant divide between Euro-

Canadian and aboriginal people of whatever variety, mixture and combination.

[384] It is, at least in part, against this backdrop, in this social context, that the scope and meaning

of the s 91(24) “Indian Power” must be defined. The issue, at least in part, is “did this federal power

extend to all of these people in their varied conditions and diverse mixtures?”

(4) The

Manitoba Act 1870/The Scrip System

[385] The issues surrounding the

Manitoba Act, its provision for the settlement of Indian title and

its relationship to Métis has been the subject of litigation in Manitoba (see

Manitoba Métis

Federation

, above). It is not the intent of this decision to impact the Manitoba litigation although it

touches on some of the same areas. However, this Court’s evidence included evidence not before

the Manitoba courts and covered areas of the West beyond that of Manitoba.

Page: 107

[386] Following Confederation, and as anticipated in the

British North America Act, Canada

acquired the Northwest Territories formerly administered by the Hudson’s Bay Company. The new

legislation –

An Act for the temporary Government of Rupert’s Land and the North-Western

Territory when united with Canada

, 32-33 Vict, c 3 (1869) – provided for the appointment of a

Lieutenant Governor of the now-called Northwest Territories.

[387] When the first Lieutenant Governor, William MacDougall, went to the territory, the Red

River Métis led by Louis Riel, blocked his entry to Fort Garry and prevented his assertion of

Canadian authority. Riel established a provisional government. The clumsy behaviour of

MacDougall, allegedly jumping from the U.S. to Canada at night to plant the flag and back again,

inflamed the situation with the Métis, the details of some of the behaviour which was interesting and

comical/tragic, is not germane to this case. It does, however, again establish that Canadian history

and its characters were not boring.

[388] Macdonald was informed that the “rebellion” was almost entirely limited to the Roman

Catholic French Métis centered around St. Boniface. The demands made by this Métis group were:

(a) that the Indian title to the whole territory should be paid for at once;

(b) that on account of the relationship with the Indians a certain portion of this money

shall be paid to them; and

[389] On December 1, 1869, a List of Rights was adopted by the French and English Métis

representatives. In addition to calling for their own legislature, rejecting Canadian law until adopted

Page: 108

by that legislature and demanding fair and full representation in the Canadian Parliament, the Métis

demanded that:

Treaties be concluded and ratified between the Dominion

Government and the several tribes of Indians in the Territory to

ensure peace on the frontier.

[390] This demand was consistent with the joint proposal of the Canadian House and Senate in

late 1867 made to the U.K. government that:

And furthermore, that upon the transference of the territories in

question to the Canadian Government, the claims of the Indian tribes

to compensation for lands required for purposes of settlement, will be

considered and settled in conformity with the equitable principles

which have uniformly governed the British Crown in its dealings

with the aborigines.

[391] As a result of the actions of Riel’s Provisional Government, in 1870 the Canadian

government began negotiations with the Provisional Government leading to the creation of the

Province of Manitoba – a much smaller Manitoba than now exists and which became known, at

least to historians, as the “postage stamp” province due to its configuration.

[392] It was the Defendants’ position that the negotiations showed that the Métis considered

themselves half-breeds, not Indians. One of the Métis leaders, James Ross, summarized the position

in early 1870 as follows:

The fact is, we must take one side or the other. We must either be

Indians and claim the privileges of Indians – certain reserves of land

and annual compensation of blankets, powder and tobacco (laughter)

– or else we must take the position of civilized men and claim rights

accordingly … Considering the progress we have made, and the

position we occupy, we must claim the rights and privileges which

civilized men in other countries claim.

Page: 109

[393] The statement relied on by the Defendants is consistent with the other expert evidences that

there was a stigma attached to being labelled “Indian” and that Red River Métis sought to put some

distance between themselves and Indians. They sought to move further along the “civilized scale”

towards white society.

[394] The statement also shows that these Métis had not yet established their goal of being

considered “civilized”. This is evidence which shows that at least from the government perspective

and the use of government power, these Métis were not considered outside the more general and

varied class of “Indian”.

[395] On April 25, 1870, the Métis delegates who had been sent to Ottawa to negotiate what

became Manitoba’s entry into Confederation met with Macdonald and Cartier to discuss the

compensation claim for lands. A Métis delegate, Reverend Noel Joseph Richot (Richot), recorded

the responses to the positions taken by Macdonald and Cartier that the Métis of the Red River could

not claim the rights of settlers of the Northwest as “civilized” men and also claim the privileges

granted to Indians.

[396] In an often quoted passage from Richot’s Journal relied on for the argument that Métis were

not Indians, Richot records the Métis’ position in these negotiations:

They did not claim them (the privileges granted to Indians). They

wish to be treated like the settlers of other provinces and it is

reasonable. Well, while the Métis wish to be treated like the settlers

of other provinces and they did not claim the privileges of Indians

they nonetheless wanted certain land rights as descendant of Indians.

Page: 110

[397] The sentiment of that statement, indicative of Métis having one foot in each camp, is carried

forward to modern day. More pertinent to this litigation, it was a continuing theme of Métis

leadership during the immediate post-Confederation era.

[398] In considering the evidentiary value of this evidence, it is important to recognize that the

comments reflect the situation of the Red River Métis and not the situation of the other Métis in the

Northwest. The Red River Métis, as reflected by these negotiators were “Fathers of Confederation”

and if not treated equally with whites, it is reasonable to conclude that they had a status akin to an

enfranchised Indian. An enfranchised Indian was considered “civilized” and avoided the strictures

of the

Indian Act but was nevertheless an Indian for constitutional purposes. The same cannot be

said for all Métis either in the then Manitoba or more generally in other areas of Western Canada or

in other locations in Canada.

[399] The end result was the passing of

An Act to amend and continue the Act 32 and 33 Victoria,

Chapter 3; and to establish and provide for the Government of the Province of Manitoba

, 33 Vict,

c 3 (

Manitoba Act 1870) which provided:

31. And whereas, it is expedient, towards the

extinguishment of the Indian Title to the lands in the

Province, to appropriate a portion of such ungranted

lands to the extent of one million four hundred

thousand acres thereof, for the benefit of the families of

the half-breed residents, it is hereby enacted that under

regulations to be from time to time made by the

Governor General in Council, the Lieutenant-Governor

shall select such lots or tracts in such parts of the

Province as he may deem expedient, to the extent

aforesaid, and divide the same among the children of

the half-breed heads of families residing in the province

at the time of the said transfer to Canada, and the same

shall be granted to the said children respectively in such

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mode and on such conditions as to settlement and

otherwise, as the Governor General in Council shall

from time to time determine.

[Emphasis by Court]

[400] The term “toward the extinguishment of Indian title” has been the subject of other litigation.

This Court is not in a position to nor is it necessary for the resolution of the issues here, to determine

whether Métis/half-breeds had Indian title to be extinguished or what Indian title may have meant at

the time. The case before the Court is not one of aboriginal rights and title.

[401] The importance of the provision is that it was made in reference to Métis and Indians and

the direct connection between the two. It is only one fact in a complex matrix of facts where Métis

and Indians were linked in the exercise of federal jurisdiction and the use of the tools associated

with the exercise of the Indian Power e.g. treaty provisions, residential schools, reserves, prohibited

conduct.

[402] There is considerable conflict in the expert evidence, particularly between Jones and von

Gernet, as to the context and significance of this provision and the events surrounding its creation

and implementation.

[403] Von Gernet put considerable weight on Richot’s diary and the Métis’ original position that

they ought not to claim the privileges granted to Indians but to be treated as settlers. It was Richot’s

intervention that Métis wished certain land rights as descendants of Indians that muddied the Métis’

position. This so-called “”Richot’s nuance” led Macdonald to accommodate this new position by

extinguishing Indian claims. As a result of this confusion of the Métis’ position, Macdonald

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repeated, in the House, his explanation of the extinguishment of title and his analogy, false though it

may be, with United Empire Loyalists.

[404] Jones places less emphasis on the Richot nuance and attributes Macdonald’s position to the

need of the federal government to control public lands while making settlement with the Indians as

part of Canada’s responsibilities inherited on the purchase of Rupert’s Land including the “Indian

title” of, as Macdonald said, “the representatives of the original tribes … the half-breeds”. It was

Jones’ view that Macdonald had concluded that the best way of dealing with half-breeds was to give

small grants of land for them and their children out of a reserve of land for half-breeds. This was an

administrative way to allocating communal lands held in trust as Indian Reserves, as had been done

in the Robinson Treaties. This allowed Macdonald to give the Métis their desired guarantee of

protection for their lands without the policy baggage of the

Indian Act including wardship.

[405] It was Jones’ view that the Métis wanted more than the rights of settlers – they claimed that

they had rights because they were related to Indians; they had rights as people who were indigenous

to the territory. Therefore, the land reserved for Métis was not a misconception caused by Richot

nor an erroneous assertion of Indian title but a government policy to deal with whatever title or

interest was being separated from the

Indian Act which required people called Indians to lose their

right to vote, to buy liquor, and to hold their land individually. It was a recognition that Métis as

half-breeds had some claim to Indian land or rights therein.

[406] The scrip system allowed half-breeds in Manitoba to accept scrip (a document giving title to

an unspecified piece of land of 160 acres or $160) which was transferable. Later and in other parts

Page: 113

of the Northwest the land and money changed to 240 acres or $240. There were numerous incidents

of land speculators buying up scrip and, after the money was spent, the half-breed was left destitute.

[407] While there was confusion among some opposition members as to the scrip system, twice in

the May 2, 1870 debate, Macdonald referred to the allocation of lands to the half-breeds as being

“for the purpose of extinguishing the Indian title”.

[408] While the reservation of 1.4 million acres was provided for, the land could not be

immediately handed over because, as Macdonald said, the Dominion needed control of the land “so

that the Pacific Railway could be built”.

[409] As to who may be entitled to claim, Cartier, who had been a representative in the Rupert’s

Land Terms of Agreement negotiation, stated that “any inhabitant of the Red River country having

Indian blood in his veins was considered to be an Indian”.

[410] Aside from the possible hyperbole in this statement, it is consistent with the weight of

credible evidence in this case in expressing the general view of who was considered, at least from

the Euro-Canadian perspective, to be an “Indian”. The view that “Indian” did not necessarily mean

pure blood was acknowledged in a legal opinion from the Office of the Attorney General of Upper

Canada, at the time Macdonald was Attorney General, that:

… it is impossible to contend that the word Indian in the 1850 Act is

restricted to Indians of pure blood, and [the Attorney General] is not

aware of any legal decision where it is interpreted that way.

Page: 114

[411] Whatever the merits of the extinguishment issue, both experts recognized that treating halfbreeds

as Indians, as if they had Indian title, persisted for decades. As Jones noted, the scrip system

operated between 1870 and 1930 and reflects that the federal government accepted the existence of

a title or interest on the part of Indians that had to be addressed in some way. Scrip was described in

much of the documentation and legislation, up until the mid-1920s, as being “in extinguishment of

Indian title” and the concept was carried through all scrip legislation.

[412] Whether the Métis/half-breeds had Indian title in law is less important than the fact that,

immediately post Confederation, half-breeds were considered as closely associated with “Indians”

and part of the problem to be solved to permit expansion, settlement and the building of the railway,

all as contemplated in the

British North America Act.

[413] The Defendants put considerable reliance on a statement by Macdonald in the House of

Commons debates on July 6, 1885 in which he recanted his description that the land reserved for

Métis was for the “extinguishment of Indian title”. Macdonald is reported to have said:

Whether they had any rights to those lands or not was not so much

the question as it was a question of policy to make an arrangement

with the inhabitants of the Province, I order, to make a Province at all

– in order to introduce law and order there and assert the sovereignty

of the Dominion.

Page: 115

… 1,400,000 acres would be quite sufficient for the purpose of

compensating these men for what was called the extinguishment of

the Indian title. That phrase was an incorrect one, because the halfbreeds

did not allow themselves to be Indians. If they were Indians

they go with the tribe; if they are half-breeds they are whites and they

stand in exactly the same relation to the Hudson Bay Company and

Canada as if they were altogether white. That was the Principle under

which the arrangement was made and the Province of Manitoba was

established.

[Emphasis by Court]

[414] Quite apart from the caution with which courts must approach comments in Hansard as

being a basis for legal conclusions, Jones points out other reasons including context of the statement

and continued scrip use of the concept which undermine the weight this statement should be given

as reflecting what was understood by the word “Indian” for purposes of the constitutional power.

[415] The notion that scrip was given to extinguish Indian title was reiterated over 65 years. Most

importantly, it was reiterated between 1870 and Macdonald’s 1885 statement by both the

government of Macdonald and its replacement Liberal government:

•

In 1876 when the Indian Act was introduced by the Liberal government of

Alexander MacKenzie, the Minister explained that “lands had been given to halfbreeds

in order to extinguish their title”.

•

The phrase “the extinguishment of Indian title” as it relates to half-breeds is repeated

again and again in subsequent legislation including the

Dominion Lands Act in 1879

and 1883 (when the scrip system was extended to what is now other parts of

Manitoba, Saskatchewan and Alberta) and all of the Orders-in-Council establishing

scrip conditions.

Page: 116

•

Similar language was used in the 1873 Half-Breed Treaty 3 Adhesion reflective of

the

Manitoba Act language of compensation in exchange for the surrender or

commutation of half-breed claims by virtue of their Indian blood.

•

In April 1885 correspondence between the Half-Breed Commissioner and the

Minister of the Interior, the Minister agreed to an amendment to the Order-in-

Council related to scrip to ensure that half-breeds were able to claim land as settlers

in addition to the scrip they were entitled to receive in exchange for Indian title.

•

The resulting Order-in-Council dated April 17, 1885 (three months before his

recantation) signed by Macdonald specified that the scrip was issued to extinguish

Indian title.

[416] The context in which Macdonald made his July 1885 statement was, as pointed out by

Jones, in response to an opposition motion accusing the Conservative government of having caused

the 1885 Riel Rebellion by neglect, delay and mismanagement. At this time Riel was awaiting trial.

Macdonald had been subject to a seven-hour speech by the Opposition Leader attacking him for the

delay in implementing scrip outside Manitoba which was authorized under the

Dominion Lands Act

1879

(An Act to amend and consolidate the several Acts respecting the Public Lands of the

Dominion

, 42 Vict c 31).

[417] Macdonald’s statement concerning the history of scrip in Manitoba was made in the early

hours of the morning after hours of attack in Parliament and contained a number of inaccuracies

including that there were few half-breeds in the Northwest Territories at the time and that halfbreeds

were treated the same as whites when in fact they received more land than white settlers.

Page: 117

[418] The statement, Jones opined, stands in isolation not only to what came before but also came

after. For example:

•

The 1898 Order-in-Council authorizing a new scrip commission regarding Treaty 8

referred to the extinguishment of aboriginal title of half-breeds.

•

A subsequent Order-in-Council in 1899 regarding Athabasca noted that the halfbreeds

had their rights in land by virtue of their Indian blood and that while there

may be differences of degree between Indian and Half-Breed rights, they were coexistent

and had to be extinguished.

•

From Treaty 8 in 1899 to Treaties 9, 10 and 11, the federal government dealt with

Indians and half-breeds at the same time.

•

Liberal Prime Minister Wilfred Laurier in the Commons debate of July 3, 1899

regarding the 1899 amendments to the

Dominion Lands Act referred to the Indian

title of half-breeds being extinguished.

•

The 1899 amendments to the Dominion Lands Act refer to satisfaction of claims of

half-breeds arising out of the extinguishment of Indian title.

•

In 1921 when Treaty 11 was concluded and the final Half-Breed Commission

established, Prime Minister Arthur Meighen noted that scrip is for the

extinguishment of Indian title.

[419] Jones puts forward other instances where the federal government referred to half-breeds

extinguishing their Indian title. These include legal opinions and litigation in the 1920s and 1930s

regarding compensation to the western provinces for loss of public lands. This evidence is not as

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persuasive as to what was understood by the term “Indian” in the creation of the Indian power

because it significantly postdates 1867 but it shows a consistency of understanding that half-breeds

(which included Métis) were considered as “Indians” for various legal purposes.

[420] What can be said about must of the post-1867 evidence is that the early post-1867 evidence

shows that half-breeds were considered as at least a subset of a wider group of aboriginal-based

people called “Indians”. What the latter evidence shows is that Canada was prepared to exercise

jurisdiction over half-breeds, to use Indian power like methods and to justify such exercise of

jurisdiction as the exercise of s 91(24) along with the power to control Dominion lands.

[421] In the scrip system the federal government offered Métis land or money in scrip form in lieu

of treaty. In offering Métis scrip, the federal government treated the Métis differently than other

Indians. The alternative of taking treaty is more clearly the exercise of the Indian power. The federal

government would have had no basis to extend treaty protection unless those people to whom it was

extended were “Indians”.

[422] The use of scrip was only one policy option used in dealing with half-breeds. As Jones

pointed out, over the same period various options were used depending on the half-breed/Métis

group. These included:

•

Accepting treaty and living on reserves.

•

A hybrid system whereby an aboriginal person could accept treaty and 160 acres of

land off reserve held in trust. This system was used in Treaties 8 and 10.

•

The readmission to treaty even after scrip was taken such as the Bobtail Band.

Page: 119

•

The creation of “half-breed reserves” as occurred at St. Paul-de-Métis.

D. Other Examples – Half-breeds and Section 91(24)

[423] Both parties refer to a number of post-Confederation events (other than those already

covered) but draw different conclusions from such events.

(1) Adhesion to Treaty 3

[424] Prior to the Treaty 3 negotiations, the Ojibway Chief asked Treaty Commissioner Morris

whether 15 families of half-breeds living on the Rainy River could be included in the treaty.

[425] This group of half-breeds had previously been enumerated in 1871 when they were noted to

be intermarried with Ojibway peoples of the area. Some of the half-breeds lived in settlements of

their own but hunted together with the Ojibway.

[426] The fate of these half-breeds was raised during the Treaty negotiations. The government

response was to seek instructions from Ottawa.

[427] The final conclusion from Ottawa was that the federal government had no objection to halfbreeds

outside of Manitoba who had married Indian women and adopted Indian habits to choose to

be treated as Indians rather than as half-breeds.

[428] In September 1875 the Surveyor General of Dominion Lands entered into an “adhesion”

with the half-breeds of Rainy River and Lake. That Adhesion contained a clause “subject to

Page: 120

approval and confirmation by the Government, without which the same shall be null as void and of

no effect”. No record of such approval was ever discovered.

[429] However, at about that time, the Indian Commissioner Provencher established a policy

against acknowledging groups of half-breeds as a special group distinct from Indian bands around

them. His concern was that to recognize such a distinction could create “a new class of inhabitants,

placed between the Whites and the Indians …”.

[430] The result was that in 1876 the

Indian Act, 1876 was passed and the Indian Affairs branch

took the position that “the Department cannot recognize separate Half breeds bands”. Consequently

these Rainy River half-breeds were given their reserve but were required to join the much smaller

Little Eagle Band for which an adjacent reserve had been surveyed.

[431] The Plaintiffs’ expert, Ms. Jones, was of the view that by this event the highest levels of the

federal government recognized the idea of a separate reserve for a group of half-breeds (which she

described as a historic Métis community). The recognition was based on knowledge of the

community, and awareness of the distinctiveness of the half-breeds from the Ojibway in the area,

although interrelated.

[432] It was Jones’ view that the absence of a record of Order-in-Council approval of the

Adhesion was unimportant. The requirement to join the Little Eagle Band was the result of new

policy and legislation not that on the policy and laws more closely tied in time to Confederation.

Page: 121

[433] Dr. von Gernet described the Treaty 3 Adhesion as another anomaly – “among the strongest

departures from Indian Treaty making in Canada” and “not only unprecedented but unacceptable”.

[434] The Treaty 3 Adhesion is an instance where the federal government treated the halfbreeds/

Métis group as if it had a claim to Indian title, and gave the group a reserve as part of the

surrender of that claim. It is a further instance of the federal government exercising jurisdiction over

a Métis group based not on this connection to European ancestors but on their connection to their

Indian ancestry.

[435] The difficulty with Dr. von Gernet’s “anomaly” theory is that there are numerous other such

“anomalies” where half-breeds/Métis were treated as Indians or dealt with under power associated

with the Indian power. At some point the compounding of “anomalies” leads to the conclusion that

these are not “anomalies” but in fact reflect the main line of thought and reflect the general view.

[436] This so-called anomalist treatment of half-breeds/Métis did not end with the

Indian Act,

1876

or with the 1879 amendment which allowed half-breeds who had been admitted to treaty to

withdraw upon repayment of any annuity monies received.

(2) The Reserve and Industrial School at St. Paul de Métis

[437] In 1895 Father Lacombe petitioned for poor “Half-breeds” to receive some land on which to

settle, because they were destitute. The reserve was to consist of four townships to be established,

together with an industrial school so that the half-breeds could learn “the different trades of civilized

life”. The industrial school was similar to the industrial schools established for other Indians.

Page: 122

[438] Title to the reserve lands would be vested in the Crown so that it could not be alienated.

Interestingly, the Memorandum of the Deputy Minister of the Interior noted that the Métis settled on

the reserve would have to be reassured that this would “not place them on the same footing as an

Indian” because of Métis sensitivities, but it would be the functional equivalent of an Indian reserve.

[439] The Lacombe proposal was approved and a reserve and industrial school was established at

St. Paul de Métis in Alberta. It was not a great success. About 10 years later the school burned

down, take up of the settlement did not meet expectations and the project was abandoned by the

federal government in 1908. The lands not occupied by those Métis who took up settlement were

disposed of.

[440] This instance of the exercise of federal power over Métis and lands for them is later

juxtapositioned by the Alberta Métis lands discussed in the recent Supreme Court decision in

Cunningham

, above,, referred to later in this judgment.

[441] The St. Paul de Métis project consisted of the establishment of a “reserve” exclusively for

Métis with title to the land held by the federal Crown. The federal government also established an

industrial school for Métis. The project was not a policy accident. It was the use of powers similar to

or arising from those exercised in regard to “Indians” under s 91(24).

[442] It is noteworthy both in the historical context and in the modern efforts at reconciliation over

industrial and residential schools that Métis also had been subject (or subjected) to residential

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schools along with other Indians (for example: Memorandum from Duncan Scott – December 11,

1906). Dr. Wicken also reported that in respect to the Maritimes off-reserve Mi’kmaq (including

those of mixed ancestry) were also subject to being taken to residential schools in Nova Scotia well

into the 1940s.

[443] The use of residential schools is an unfortunate phenomenon visited upon all aboriginal

peoples – Indians, Métis and Inuit.

[444] The convergence of and exercise of Indian powers over Métis was also evident in the

treatment of half-breeds/Métis in regard to liquor – a curse for native communities throughout

Canada into modern time.

(3) Liquor Policy

[445] Ms. Jones relies on the administration of the liquor policy by the federal government as

further evidence that it was understood and accepted that the federal power over Indians included

Métis and non-status Indians. The Defendants do not refute this matter to any real extent.

[446] In 1894 Parliament amended the

Indian Act to broaden the specific provision dealing with

persons who sold intoxicating liquor to an “Indian”. The source of the problem was the difficulty

the North-West Mounted Police had, as outlined in an 1893 letter, in distinguishing between “Halfbreeds

and Indians in prosecutions for giving liquor to the latter”.

Page: 124

[447] The provision against the sale of intoxicating liquor was amended by adding “… shall

extend to and include any person … who follows the Indian mode of life”.

The section substituted for section ninety-four of The Indian Act

by section four of chapter twenty-two of the Statutes of 1888, is

hereby amended by adding thereto the following subsection :-

“

2. In this section the expression ‘Indian’, in addition to its

ordinary signification as defined in section two of this Act, shall

extend to and include any person, male or female, who is reputed to

belong to a particular band, or who follows the Indian mode of life,

or any child of such person.”

An Act further to amend “The Indian Act”

, 57-58 Victoria, c 32

There was no reference to an “Indian blood requirement”.

[448] The provision, as amended, caused continuing concern even into 1937 when the Deputy

Minister of Justice opined that the provision (by then numbered s 126) could apply not only to a

non-treaty Indian but also to a half-breed.

[449] It then became of concern that the wording could apply to a white person. In response to a

query about whether the Department of Indian Affairs could define “Indian mode of life”, the

Department advised that it had no information by which to identify the expression “Indian mode of

life”.

[450] Jones’ evidence confirms that the notion of “Indian mode of life” or similar life/work style

criteria was unworkable. Experts on both sides recognized the enormous diversity of lifestyles of

“Indians” in Canada, the rapidity with which those lifestyles could and were changing and the

difficulty with cultural concepts as a means of identity.

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[451] The liquor policy confirms again that the federal government exercised jurisdiction over

Métis and non-status Indians regardless of mixed ancestry, residence, membership or purported

membership in a band/tribe. The only limitation was compliance with a descriptively impossible

“Indian mode of life”.

[452] From a constitutional perspective, the

sine qua non of the legislation was the native ancestry

of the person (whether of pure or mixed blood). From the

Indian Act perspective, it was the “mode

of life” which was a further qualification on the exercise of that constitutional jurisdiction.

(4) “Half-Breeds” whose Ancestors took Scrip

[453] The Defendants’ expert, Dr. von Gernet, pointed out that in the early to mid-20

th century,

there were numerous instances of “Half-breeds” who had taken scrip, or whose ancestors took scrip,

but who continued to reside on reserves and continued to receive treaty annuities despite statutory

exclusion of such persons from the definition of “Indian”.

[454] The problem, particularly in the Lesser Slave Lake area of Treaty 8, caused in 1944 a

Commission of Inquiry before Justice Macdonald of the Supreme Court of Alberta. Having traced

the history of the choice of scrip under Treaty 8 and thereafter, Justice Macdonald commented as

follows (and relied upon by the Plaintiffs):

Ordinarily the issue of scrip to an individual bars his right to treaty.

This appears to be the view adopted by the Department for many

years. When an Indian or Halfbreed takes scrip his aboriginal rights

are extinguished and strictly speaking that is an end of the matter.

However, the practice followed in the years immediately following

the conclusion of treaty No. 8 makes it clear that the Government did

not take the position that the issue of scrip was an inseparable bar to

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treaty. A good deal of latitude was allowed in switching from scrip to

treaty and vice versa. …

…

The authority of the Government to deal with all aspects of Indian

affairs is as ample and complete today as it was in 1899 when Treaty

No. 8 was signed. When individuals of mixed blood are admitted to

treaty from time to time by the local agent with the approval, either

express or implied, of the Department, it seems to me that their

status, especially after the lapse of many years, should be held to be

fixed and determined. This was the course recommended and

approved in the years immediately following the treaty. These

individuals acquire rights under the treaty and under the Indian Act,

and these rights should not be lightly disturbed. They should have the

same security of tenure and the same protection in the enjoyment of

property rights, no matter how circumscribed these rights may be, as

is accorded any other citizen of the nation.

[455] Von Gernet takes comfort in the fact that the Department did not follow Justice

Macdonald’s recommendation because of concern for the impact of the redefinition of “Indian”

under the

Indian Act upon the administration of Indian Affairs.

[456] However, the Department did not follow the recommendation because of concerns for

legislative/constitutional jurisdiction. There was no issue that the federal government had

constitutional competence to implement the recommendation.

[457] Most importantly, in 1958 in an amendment to the

Indian Act, the federal government

enacted what Justice Macdonald had recommended for the same reasons as referred to in his report

of August 7, 1944.

Page: 127

[458] Consistent with the inclusion and exclusion of half-breeds in the numbered treaties, the

federal government chose when and if to exercise its constitutional jurisdiction over this group. The

1958 amendment was a clear example of federal legislation with respect to Métis as a group or class

and founded on the Indian power in the Constitution.

(5) Other Examples of Jurisdiction over Non-Status Indians

[459] In the post Confederation period, the federal government dealt with the rights of Indians

who were without status under the

Indian Act.

[460] In the 1869 legislation

An Act for the gradual enfranchisement of Indians, the better

management of Indian affairs, and to extend the provisions of the Act

, 81 Vict, c 43, the federal

government introduced the statutory marrying out rule but it permitted women who married out to

continue to draw annuities. The provision was continued in the

Indian Act, 1876 and an

administrative practice arose of issuing those women identity cards known as “red tickets”.

[461] By 1951 the

Indian Act was amended and these “red ticket Indians” were required to

commute their annuities and to leave the reserves. Ultimately those women who married out,

together with their first generation descendants, were reinstated to Indian status under Bill C-31 in

1985.

[462] In the Robinson treaty areas of Ontario, by 1890 there were many Euro-Canadians who had

intermarried with natives and their descendants. They were residing on reserves and receiving

annuities despite their lack of qualification as “Indian” under the

Indian Act.

Page: 128

[463] To address the issue and deal with the legal confusion caused by differing definitions of

“Indian” at the time of the Robinson treaties, the federal government established a “nontransmissible

title”. Similar to s 6(2) Indians under the current

Indian Act, those with nontransmissible

title could be paid annuities for life but the right was not transmitted to their children.

This category of Indian right was terminated in 1917 as a matter of policy and the nontransmissibles

were merged with the transmissible title holders.

[464] In Nova Scotia, efforts were made to abolish small reserves and open the land for timbering.

In New Germany the Department chose to define mixed ancestry residents as non-Indians whereas

in large reserves mixed ancestry was no bar to being recognized as Indian.

[465] Those Indians without status under the

Indian Act included those “enfranchised”, either

voluntarily or otherwise, between the 1869 “Act for the gradual enfranchisement of Indians” and

Bill C-31 in 1985 which permitted enfranchised Indians and their first generation descendants to be

reinstated to status.

[466] In Newfoundland and Labrador certain natives who entered Confederation in 1949 as fully

enfranchised and their non-status Indians were not brought under the

Indian Act until 1984.

[467] The foregoing examples established that the federal government exercised jurisdiction over

a broad range of persons with native ancestry who did not have status as Indians under the

Indian

Act

Page: 129

[468] Most importantly, this exercise of jurisdiction over non-status Indians and half-breeds

including Métis was based upon the understanding and acceptance by the Euro-Canadian

population, and their federal politicians and their bureaucracies of the federal power to exercise

jurisdiction over this wide range of people as “Indians”. The foregoing, established by conduct, the

meaning of “Indian” within s 91(24).

E. Modern Era

(1) Pre-Patriation

[469] The Court has, to some extent, earlier discussed in Section V “Nature of the Problem”, some

of the facts pleaded and argued by the Plaintiffs in regard to more current events. While these facts

may explain the basis of this action, the impact that a determination may have and some of the

history between the parties, those facts are not particularly germane to the key issue of constitutional

interpretation – the meaning and scope of “Indian” as found in s 91(24) of the

Constitution Act.

[470] For the sake of completeness, the Court will deal with the key matters raised in the

arguments but the Court’s determination of the meaning and scope of s 91(24) is based principally

on the analysis of the pre- and post-Confederation facts and the manner in which the federal

government dealt with Métis and non-status Indians.

[471] In the post World War II era, there have been several forces affecting the federal policies

regarding aboriginal peoples including:

Page: 130

•

international human rights reforms including the principles of equality, self

determination and self definition for indigenous peoples, reflected to some degree in

Lavell v Canada (Attorney General

), [1974] SCR 1349, 38 DLR (3d) 481;

•

fundamental changes in Canadian law, particularly s 15 of the Charter and s 35 of

the

Constitution Act;

•

demographic shifts in Canada’s aboriginal population including the movement away

from reserves and greater intermarriage between native and non-native people.

[472] The Plaintiffs’ evidence traces the history of not only the patriation of the Constitution but

also the attempts at constitutional reform in the Meech Lake Accord and the Charlottetown process.

These failed political accords have little relevance to the legal issues in this case.

[473] However, the better starting place for this consideration of some of the issues between

Canada and the aboriginal community would be in the early 1970s.

[474] In the early 1970s the federal government began funding research on treaty and land claims

for status Indian groups. This was later expanded to include non-status Indians and Métis groups.

[475] By mid-1976, the Joint Cabinet-Native Council of Canada Committee was created to

develop a process designed to produce agreements between government and the representatives of

the “Indian People” on major policy issues.

Page: 131

[476] The Joint Cabinet-Native Council of Canada Committee met annually between 1977 and

1980 and again in 1982. There was a recognition that little was known about Métis and non-Status

Indians as a group and that there were significant definitional issues.

[477] Despite some internal issues amongst the native groups including that with the broad Métis

community as represented in the dispute between the MNC and the NCC, the funding of research on

native claims for these groups continued.

[478] In 1978 an Interdepartment Committee issued a Discussion Paper concluding that there was

no legal or broadly accepted definition of non-Status Indians. This Committee acknowledged the

“present desperate circumstances of large numbers of native people”. It further noted that it was

important to recognize that the causes of these circumstances and the opportunities for improvement

vary considerably across the country.

[479] This recognition of the plight of many native people and the diversity of causes and cures

was a continuing theme throughout subsequent discussions of government-native issues. The Court

concludes that it was recognized that these causes and remedies had to be addressed at a broad level,

on a national scale, and not by piecemeal or on a province by province basis.

[480] As established in various federal government documents, the provinces had varying

attitudes on the question of responsibility for MNSI programs and, except for Saskatchewan, all

provincial governments did not accept the responsibility for programs specifically and exclusively

for MNSI. The provinces did not want to be seen as accepting responsibility for those of Indian

Page: 132

ancestry or according them special status within the province (other than those already recognized

as status Indians by the federal government).

[481] By 1980, while the Minister of Justice and Attorney General (the Honourable Jean Chrétien)

continued to deal with the head of the NCC (Harry Daniels) on policies regarding MNSI, the

government-native agenda became dominated by the Constitutional Revision Process. Issues of

constitutional recognition of aboriginal and treaty rights, rights to self-government and direct

consent to constitutional changes affect natives became the major themes of discussions.

[482] One of the results of the patriation process relevant to this case was the creation of s 35 and

the requirement that a First Minister’s conference be held within one year with an agenda item

respecting the identification and definition of the rights of the aboriginal peoples of Canada.

35.1

The government of

Canada and the provincial

governments are committed to

the principle that, before any

amendment is made to Class 24

of section 91 of the

“

Constitution Act, 1867”, to

section 25 of this Act or to this

Part,

(a) a constitutional conference

that includes in its agenda an

item relating to the proposed

amendment, composed of the

Prime Minister of Canada and

the first ministers of the

provinces, will be convened by

the Prime Minister of Canada;

and

(b) the Prime Minister of

35.1

Les gouvernements fédéral

et provinciaux sont liés par

l’engagement de principe selon

lequel le premier ministre du

Canada, avant toute

modification de la catégorie 24

de l’article 91 de la «

Loi

constitutionnelle de 1867

», de

l’article 25 de la présente loi ou

de la présente partie :

a) convoquera une conférence

constitutionnelle réunissant les

premiers ministres provinciaux

et lui-même et comportant à son

ordre du jour la question du

projet de modification;

b) invitera les représentants des

Page: 133

Canada will invite

representatives of the aboriginal

peoples of Canada to participate

in the discussions on that item.

peuples autochtones du Canada

à participer aux travaux relatifs

à cette question.

[483] Part IV.1 proclaimed in 1983 required two further First Minister conferences with agenda

items including constitutional matters that directly affect the aboriginal peoples of Canada.

PART IV.1

CONSTITUTIONAL

CONFERENCES

37.1 (1) In addition to the

conference convened in March

1983, at least two constitutional

conferences composed of the

Prime Minister of Canada and

the first ministers of the

provinces shall be convened by

the Prime Minister of Canada,

the first within three years after

April 17, 1982 and the second

within five years after that date.

(2) Each conference convened

under subsection (1) shall have

included in its agenda

constitutional matters that

directly affect the aboriginal

peoples of Canada, and the

Prime Minister of Canada shall

invite representatives of those

peoples to participate in the

discussion of those matters.

(3)The Prime Minister of

Canada shall invite elected

representatives of the

governments of the Yukon

Territory and the Northwest

Territories to participate in

PARTIE IV.1

CONFÉRENCES

CONSTITUTIONNELLES

37.1(1) En sus de la conférence

convoquée en mars 1983, le

premier ministre du Canada

convoque au moins deux

conférences constitutionnelles

réunissant les premiers

ministres provinciaux et luimême,

la première dans les trois

ans et la seconde dans les cinq

ans suivant le 17 avril 1982.

(2) Sont placées à l’ordre du

jour de chacune des

conférences visées au

paragraphe (1) les questions

constitutionnelles qui

intéressent directement les

peuples autochtones du Canada.

Le premier ministre du Canada

invite leurs représentants à

participer aux travaux relatifs à

ces questions.

(3) Le premier ministre du

Canada invite des représentants

élus des gouvernements du

territoire du Yukon et des

territoires du Nord-Ouest à

participer aux travaux relatifs à

Page: 134

discussions on any item in the

agenda of a conference

convened under subsection (1)

that, in the opinion of the Prime

Minister, directly affects the

Yukon Territory and the

Northwest Territories.

(4)Nothing in this section shall

be construed so as to derogate

from subsection 35(1).

Constitution Amendment

Proclamation, 1983

toute question placée à l’ordre

du jour des conférences visées

au paragraphe (1) et qui, selon

lui, intéresse directement le

territoire du Yukon et les

territoires du Nord-Ouest.

(4) Le présent article n’a pas

pour effet de déroger au

paragraphe 35(1).

Proclamation de 1983

modifiant la Constitution

[484] Significantly, while Canada patriated its constitution and subsequently attempted to amend it

in Meech Lake and Charlottetown (which including a proposed change to s 91(24), that section

remained as enacted in 1867.

(2) Post-Patriation

[485] Section 37 of the

1982 Constitution Act provided that there be a First Minister’s Conference

before April 17, 1983 with an item for the agenda concerning the identification and definition of the

rights of aboriginal peoples to be included in the constitution.

[486] The representations of the aboriginal peoples included the Assembly of First Nations (status

Indians), the Inuit Council on National Issues (Inuit) and the Native Council of Canada (Métis and

non-status Indians).

[487] A continuing issue throughout the subsequent First Ministers’ and Federal-Provincial

meetings was that of “definition”; in particular, who fell within the class of non-status Indians and

Page: 135

the class of Métis. The dispute between the NCC and the MNC has been described earlier in these

Reasons.

[488] While “definitions” were one issue which ran through the various discussions, it was only

one of many and not necessarily the most important. The range of issues included aboriginal title,

treaty rights, social and economic rights, self-government and processes for resolution. The issue of

self-government became the single dominating issue throughout 1983 to 1987.

[489] As a prelude to patriation and to deal with issues thereafter, Canada focused much of its

policy development in the Corporate Policy Branch of the Department of Indian Affairs. The

Director General was Ian Cowie, a witness in this trial. As indicated earlier, this evidence has been

accepted.

[490] A key document produced by the Corporate Policy Branch with in depth input from central

agencies (particularly Federal Provincial Office and Privy Council Office) was “

Natives and the

Constitution

”.

[491]

Natives and the Constitution included a thorough review of the jurisdictional matters related

to s 91(24). The evidence establishes that this document was more than just a working paper; that it

reflected the collective thinking within the federal government on the interpretation and operation of

s 91(24). It was a Cabinet document and was used for internal briefings and preparation for the 1983

First Ministers’ Conference.

Page: 136

[492] The Plaintiffs rely in particular on a quote:

In general terms, the Federal Government does possess the power to

legislate theoretically in all domains in respect of Métis and Non-

Status Indians under s. 91(24) of the BNA Act.

[493] This quote is not the definitive position of the Federal government but shows the general

trend of the government position. Other references in

Natives and the Constitution, as well as other

documents in that general time frame, show both less firm and more firm statements on the

constitution power over Métis and non-status Indians, examples of which follow.

In a 1979 memorandum from the Deputy Minister to the Minister:

Although the Federal Government arguably has the power under

Section 91(24) to legislate or accept responsibility for MNSI it has

not chosen to do so as a matter of political decision-making to date.

[Underlining by the Court]

1980 Background and Discussion Paper:

… a person who is not considered an Indian under the Indian Act

because he has opted to be enfranchised is still an Indian for purposes

of the BNA Act.

… the legal and historical evidence appears to be convincing that the

mere fact that a person has mixed blood has never been a bar to the

assertion of Native Claims …

The Métis who have received scrip or lands are excluded from the

provisions of the Indian Act. These Métis are still “Indians” within

the meaning of the British North America Act and the Federal

Government continues to have the power to legislate with respect to

this group of people.

[Underlining in the original]

[494] The 1980 version of

Natives and the Constitution contained the following conclusions:

Page: 137

A survey of legislation around the time of Confederation reveals that

persons now regarded as Métis or non-status Indians were considered

Indians by Parliamentarians of the time, and therefore within the

bounds of federal legislative competence. In the absence of evidence

to the contrary, it could be presumed that this view of the term

“Indian” was shared by their contemporaries – the architects of the

BNA Act. … Those Métis who have received scrip or lands are

excluded from the provisions of the Indian Act but are still “Indians”

within the meaning of the BNA Act.

S. 91(24) of the BNA Act confers upon the federal Parliament the

power to make laws in relation to “Indians and land reserved for

Indians”. “Indians” includes Inuit and in all likelihood includes “nonstatus

Indians” and a good number of Métis.

[495] As to which non-status Indians and Métis fall within the s 91(24) term “Indian”,

Natives and

the Constitution

stated:

Métis people who come under the Treaty are presently in the same

legal position as other Indians who signed land cession treaties.

Those Métis who have received scrip or lands are excluded from the

provisions of the Indian Act, but are still “Indians” within the

meaning of the BNA Act. Métis who have received neither scrip,

land or treaty benefits still arguable retain the rights to Aboriginal

claims. … Should a person possess “sufficient” racial and social

characteristics to be considered a “native person”, that individual will

be regarded as an “Indian” within the legislative jurisdiction of the

federal government, regardless of the fact that he or she may be

excluded from the coverage of the Indian Act.

[496] The quoted positions from

Natives and the Constitution remained the same throughout

different representations and revisions of the document.

[497] This document formed the background and the basis for federal government position

statements on Aboriginal people and the Constitution including in those discussions concerning

proposals to amend s 91(24).

Page: 138

[498] It was Cowie’s evidence that it was unique to have a document subjected to the scrutiny of

the highest levels of government over an intense five-year period and to have those statements

remain intact throughout.

[499] While not all statements are an unequivocal confirmation of federal jurisdiction of MNSI,

those conclusions and the rationale (referring to understanding of “Indian” at the time of the

BNA

Act

), is entirely consistent with the Plaintiffs’ experts’ evidence and consistent with the treatment of

both Métis and non-status Indians post-Confederation as detailed by Jones.

[500] While the federal position cannot be taken as an “admission” in the usual evidentiary sense,

nor can it give jurisdiction where no such jurisdiction existed, it gives great credence to the

Plaintiffs’ position, buttresses the expert evidence and makes the Defendants’ attack and attempts to

frustrate this litigation disingenuous.

[501] This recognition by the federal government of jurisdiction over MNSI took a turn in 1984

under a new government. The federal government’s position appears to have been motivated by

policy concerns for concrete actions and concerns for the financial consequences of recognizing this

jurisdiction.

[502] In an early 1984 document, considered high level and secret (the date of which is estimated

to be between January 1 and March 31, 1984), it was observed that:

… the Federal Government must be prepared to deliver an initially

“hard” message to the Métis to set the stage for necessary transition

Page: 139

from historical claims and general rhetoric towards pragmatic

consideration of means to achieve concrete progress.

[503] A similar document in November 1984 stated:

The Federal Government requires a strong position with which to

respond to the pressure from the MNC, NCC and the promises to

accept financial responsibility for Métis.

[504] By December 1984, the federal position on jurisdiction was shifting away from its claim to

jurisdiction over non-status Indians and Métis to something more equivocal. Both parties raise as a

key fact the position taken by Minister John Crosbie (Minister of Justice) (and subsequently the

Federal Interlocutor for Métis and non-status Indians) disavowing jurisdiction over Métis while

confirming jurisdiction over non-status Indians.

[505] At a December 17-18, 1984 conference, Mr. Crosbie responding to Harry Daniels’ question

regarding s 91(24) said:

.. despite the powers that he attributes to me, I cannot change what

the Constitution says simply by a statement from the Chair. We are

working together to try to work out Constitutional changes in the

interest of the Aboriginal Peoples, and I do not want anything I say

now to distract us from that, but I have to say a few words about

Section 91(24).

First, it provides legislative jurisdiction to the federal

government in relation to Indians and lands reserved to Indians, and

you will note that provides authority only. It does not define how it is

to be exercised, and as you know that has been interpreted by the

courts to include the Inuit. Historically the federal government has

had a special relationship with the Inuit and Indian Peoples.

Secondly, the question that Mr. Daniels raises is whether

Metis and non-status Indians are covered by Section 91(24); are they

Indians? In other words are they Indians for the purpose of Section

91(24)? To answer that question, we have to recognize the fact that

Page: 140

the word “Metis” was put in Section 35 of the Constitution Act in

1982, not in 1867. The Federal Department of Justice has concluded

-- has reached a legal opinion that Parliament cannot legislate for

Metis as a distinct people. That is a legal opinion. We cannot

legislate for Metis as a distinct people. On the other hand Parliament

can legislate for Indians irrespective of whether they are registered or

not because of Section 91(24). That is how we understand the law,

but I want to stress that a continuing legal debate over the impact of

Section 91(24) will only work to the detriment of Aboriginal Peoples

by preventing governments from dealing with the real problems that

confront those people. In other words in my view, there is not much

point in a continuing legal debate. It is unlikely that a legalistic

approach to 91(24) will result -- certainly not in a short term -- in

concrete improvements in the living conditions and the prospects of

Aboriginal Peoples. What is important is that the federal government

is prepared -- we are prepared to accept our share of the

responsibility for Aboriginal Peoples in co-operation with the

provinces and the territorial governments. They have their place.

They have their responsibilities. Historically we have had the lead

role in relation to Indian and Inuit People. The provinces have had

the lead role for Metis People, but both levels of government have

been very much involved with all Aboriginal Peoples, and that is the

approach we think will serve us best in the future, and that is the way

we want to approach it.

We have no intention of using any legal opinions, or opinions

as to what the Constitution says to disclaim any responsibility or

interest in the Metis People. We consider ourselves to be responsible

and interested. So I think that the question is really largely

hypothetical. …

[506] From that point forward the federal position was less accepting of jurisdiction as the process

of recognition of native rights proceeded under the

1982 Constitution Act. The series of meetings

and conferences culminated in the Charlottetown Accord which included an amendment to s 91(24)

to include the Aboriginal peoples of Canada but which also recognized Alberta’s jurisdiction to

make laws affecting Métis in Alberta to the extent that it did not conflict with federal laws – in

which event federal law would prevail.

Page: 141

[507] The federal public position, while contrary to the earlier position of recognizing its

jurisdiction over MNSI, became one of disavowing that s 91(24) included Métis and non-status

Indians.

[508] It is the Plaintiffs’ argument that the reason for the shift in federal position was the

recognition of the financial, legislation and political impacts flowing from such acknowledgement.

The Defendants have not substantially rebutted that argument.

[509] However, the reasons are not relevant to the legal considerations of constitutional

interpretation. The Court will not draw any sort of “bad faith” conclusion. It is reasonable for

governments to be concerned about the consequences of constitutional interpretation but the legal

interpretation cannot be driven by such consequences.

[510] However, even while the federal government was disavowing jurisdiction over non-status

Indians, it was amending the

Indian Act in Bill C-31 to include as status Indians a number (but not

the maximum number) of people who were non-status Indians.

[511] In 1984 the federal government recognized the Conne River people of Newfoundland as an

Indian band; thereby moving these non-status Indian people to status. A similar circumstance in

2008 with respect to Qalipu Band of Newfoundland arose whereby this landless group of non-status

Indians became a recognized band.

Page: 142

[512] Despite the recent history of federal resistance to jurisdiction over MNSI, until the 1980s the

federal position was one of general acceptance of jurisdiction and subsequently even where it shied

away from such acceptance, it continued to move certain native people between non-status Indians

and status in obvious recognition and exercise of its jurisdiction under s 91(24).

F. Treaties and Half-Breeds

[513] Both parties acknowledge that half-breeds were from time to time either offered treaty

protection in lieu of land grants or were moved in and out of treaty for various reasons. The

importance of this evidence is that treaty, protection and benefits, is a power directly related to

being an “Indian” for purposes of the Constitution. Treaties are not made or implemented with other

groups in Canadian society – it is a

sui generis exercise of Crown prerogative and the Indian power.

[514] As early as the 1850s, according to Alexander Morris’ book (1880)

The Treaties of Canada

with the Indians of Manitoba and the Northwest Territories on Which They Were Based

, William B.

Robinson, Commissioner to negotiate the surrender of lands on the north shore of Lakes Huron and

Superior, denied half-breed requests for land because there was no power to give half-breeds free

grants of land. The annuities were paid to the Chiefs to be distributed and, as half-breeds were

included in the re-distribution of annuity payments, it was up to the Chiefs to give to half-breeds as

much or as little as they wanted.

[515] As detailed earlier, in the Manitoba area, those half-breeds residing among the Indians were

given the choice of taking scrip or treaty.

Page: 143

[516] As the result of concerns that some half-breeds were (by today’s terms) “double dipping” in

claiming the benefits of both Indian status and rights being given to half-breeds in terms of scrip, the

federal government tried to force these people to choose one or the other.

[517] This equivocal state of affairs continued from 1871 to 1877 when Treaties 1 to 7 were

concluded. Ms. Jones detailed the lack of impediments and the incentives to take treaty particularly

as the annuities were being distributed well before any scrip was available.

[518] With respect to Treaties 8, 10 and 11, between 1899 and 1921 Ms. Jones outlined the

experience under those treaties that land and scrip were offered to the half-breeds at the same time

and that the policy was that it was a matter of choice which one would take.

[519] Ms. Jones further outlined the problem created once scrip was available in the Northwest.

Many of those who had taken treaty wanted to withdraw and take scrip. Scrip could be sold to land

speculators for immediate cash. It was not difficult to withdraw and take scrip because a large

number of the natives in the Northwest were of such mixed heritage.

[520] While there were incentives to take scrip, albeit perhaps short-term, from the perspective of

the government officials, there was no real system for differentiating between “Indians” and halfbreeds

and the term half-breed, as Ms. Jones confirmed, was often indiscriminately used at the time.

[521] The problem of “double dipping” was one of the policy concerns in the

Indian Act 1876.

The legislation attempted to draw a distinction between “half-breeds” and “Indians”. The legislation

Page: 144

applied to all the provinces and to the Northwest Territories, including the territory of Keewatin

(

Indian Act 1876, above, s 1).

[522] While it is not necessary to the purposes of this case to interpret this statute, it is sufficient to

accept Dr. Wicken’s evidence that the legislation was understood to:

•

define Indians as including half-breeds.

•

include as Indians those people living off reserve.

•

provide that no half-breed who received land under s 31 of the Manitoba Act be

considered an Indian under this

Indian Act.

•

yet include half-breed men who received s 31 Manitoba Act land, were not children,

did not have families and may have engaged in the buffalo hunt, as Indians under

that Act, as were half-breed women.

[523] The evidence of Ms. Jones laid out a number of examples of individuals who had taken

treaty or scrip but allowed to change their choice. In some cases the re-admission of half-breeds to

treaty was due to them being destitute and starving. In summary, there were at least 800

withdrawals from treaty between 1885 and 1926 while there were “hundreds” of those who took

scrip admitted or re-admitted to treaty.

[524] I accept the evidence that there was, for administrative purposes, a very unclear or indistinct

line between Indians and half-breeds. The reasons for this opaque distinction ranged from adhering

to equitable principles in dealing with aboriginals and compensating for Indian title to ensuring

economic development in the Western to humanitarian considerations.

Page: 145

[525] The weight of the evidence is that Métis were both included and excluded from recognized

Indian status in accordance with changing government policies. It is also evident that the federal

government adopted these flexible policies because they could and that it was assumed, implied and

accepted that the federal government could do so because Métis were “Indians” under s 91(24).

X. LEGAL ANALYSIS AND CONCLUSIONS

A. Section 91(24) – Métis and Non-Status Indians

(1) Introduction

[526] This is the first case in which this Court has been asked to determine whether Métis and

non-status Indians are a “matter” that “comes within” the class of “Indians” as provided in s 91(24).

That provision vests in Parliament the exclusive power to make laws in relation to all matters

coming within the class of subject “Indians and Lands reserved for Indians”.

[527] Professor Peter Hogg captured the essence of the modern debate in his text

Constitution Law

of Canada

(Carswell 2007) at 28-4:

It is probable that all status Indians are “Indians” within the

meaning of s. 91(24) of the Constitution Act, 1867. Bu there are also

many persons of Indian blood and culture who are outside the

statutory definition. These “non-status Indians”, which number about

200,000, are also undoubtedly “Indians” within the meaning of s.

91(24), although they are not governed by the

Indian Act.

The Métis people, who originated in the west from

intermarriage between French Canadian men and Indian women

during the fur trade period, received “half-breed” land grants in lieu

of any right to live on reserves, and were accordingly excluded from

the charter group from whom Indian status devolved. However, they

are probably “Indians” within the meaning of s. 91(24). …

Page: 146

The Inuit or Eskimo people are also outside the reserve

system, and are therefore not covered by the Indian Act definition,

but they have been held to be “Indians” within the meaning of s.

91(24). …

[528] While the s 91(24) power must be confined to its constitutional limits, the scope of the term

“Indian” has been determined to be broad.

… the ample evidence of the broad denotation of the term “Indian”

as employed to designate the aborigines of Labrador and the

Hudson's Bay territories as evidenced by the documents referred to,

would impose upon that term in the British North America Act a

narrower interpretation by reference to the recitals of and the events

leading up to the Proclamation of 1763. For analogous reasons I am

unable to accept the list of Indian tribes attached to the instructions to

Sir Guy Carleton as controlling the scope of the term “Indians” in the

British North America Act

. Here it may be observed parenthetically

that if this list of tribes does not include Eskimo, as apparently it does

not, neither does it appear to include the Montagnais Indians

inhabiting the north shore of the St. Lawrence east of the Saguenay

or the Blackfeet or the Cree or the Indians of the Pacific Coast.

[…]

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.

In Re Eskimo Reference

, above, at paras 35 and 38 (Duff CJ)

[529] However, the scope of the term “Indian” must be consistent with the purposes, the objects,

of s 91(24). Justice Pigeon, in

Canard, above, at p 15 – a case which focused extensively on the

Canadian Bill of Rights

, SC 1960, c 44, in the context of the Indian Act – described the object of s

91(24), as it relates to Indians, is to enable Parliament to make and pass laws applicable only to

Indians as such.

Page: 147

[530] In the same decision Justice Beetz at page 24 held that s 91(24) created a racial classification

and refers to a racial group for whom the Constitution contemplates possible special treatment. The

federal government, within the constitutional limits, could further define the persons who fall within

the group based upon marriage, filiation, intermarriage in the light of Indian customs and values or

in light of legislation history.