Court File No. 35945

IN THE SUPREME COURT OF CANADA (ON APPEAL FROM THE FEDERAL COURT OF APPEAL)

BETWEEN:

HARRY DANIELS, GABRIEL DANIELS, LEAH GARDNER, TERRY JOUDREY and

THE CONGRESS OF ABORIGINAL PEOPLES Appellants/Cross-Respondents

and

HER MAJESTY THE QUEEN as represented by THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT

and THE ATTORNEY GENERAL OF CANADA Respondents/Cross-Appellants

FACTUM OF RESPONDENTS ON APPEAL and FACTUM OF APPELLANTS ON CROSS-APPEAL

pursuant to Rules 42 and 43 of the Supreme Court Rules

Counsel for the Respondents

Department of Justice Canada Prairie Region 10111 Floor, 123 2nd Avenue South Saskatoon, SK S7K 7E6

Per: Mark R. Kindrachuk, Q.C. Christopher M. Rupar Shauna K. Bedingfield

Telephone: (306) 975-4765 (613) 670-6290 (780) 495-5358

Facsimile: (306) 975-5013 (613) 954-1920 (780) 495-2964

Email: mark.kindrachuk@justice.gc.ca christopher.rupar@justice.gc.ca shauna.bedingfield@iustice.gc.ca

Agent for the Respondents

William F. Pentney Q.C. Deputy Attorney General of Canada

Per: Christopher M. Rupar Department of Justice Canada

Suite 500, 50 O'Connor Street Ottawa, Ontario KIA OH8

Telephone: (613) 670-6290 Facsimile: (613) 954-1920 Email: christopher.rupar@iustice.gc.ca

TO:

Counsel for the Appellants

Barrister & Solicitor University of Ottawa, Faculty of Law 75 Laurier Avenue East Ottawa, ON KIN 6N5

Per: Joseph E. Magnet Telephone: (613) 562-5800 x3315 Facsimile: (613) 562-5124 Email: jmagnet@uottawa.ca

Paliare Roland Rosenberg Rothstein LLP Barristers & Solicitors 155 Wellington Street West, 35th Floor Toronto, ON M5V 3Hl

Per: Andrew K. Lokan Lindsay Scott

Telephone: (416) 646-4324 Facsimile: (416) 646-4301 Email: andrew.lokan(@,paliareroland.com

lindsay.scott@paliareroland.com

Agent for the Appellants

Gowling Lafleur Henderson LLP 160 Elgin Street, Suite 2600 Ottawa, ON KIP 1C3

Per: Brian A. Crane, Q.C.

Telephone: (613) 786-0107 Facsimile: (613) 563-9869 Email: brian.crane@gowlings.com

TABLE OF CONTENTS

Page

FACTUM OF RESPONDENTS ON APPEAL 1

PART I-STATEMENT OF FACTS 1

I. Overview 1

IL General Background 2

A. The Declarations Sought. 2

B. Origins of the Litigation 3

c. The Evidence of the Parties 4

III. Decision of the Trial Judge 6

IV. Decision of the Federal Court of Appeal 10

PART II - POINTS IN ISSUE 12

PART III - ARGUMENT 13

I. None of the Declarations Should Issue 13

A. Introduction 13

B. No Practical Utility 13

i) Declarations Sought are Redundant Re: Non-Status Indians 13

ii) Legislative Vacuum 14

iii) Unclear What is Sought by Second Declaration 16

iv) Unclear What is Sought by Third Declaration 17

c. The Declarations do not Settle Constitutional Responsibility 18

D. The Definitions of the Courts Below are Unworkable and Unnecessary 20

II. Definition of Non-Status Indians 21

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A. Trial Judge Erred by Issuing Declaration in Relation to Non-Status 21 Indians

B. Court of Appeal Corrected Error of Trial Judge 21

III. Declarations Should Not Apply to Metis 22

IV. Trial Judge Erred in Approach to Division of Powers Analysis 23

A. Introduction 23

B. Principles to Take into Account in the Interpretation of the 25 Constitution

i) Primacy of the Text 25

ii) Proper Analytical Framework 26

c. Trial Judge Erred by Adopting Expansionist Theory to Interpret Term 27 '.'Indian"

i) Primary Structural Error in Interpretation of the Constitution 27

ii) Foundation of Expansionist Theory is in the Appellants' Terms of 28 Reference to Experts

iii) Application of Expansionist Theory Led to Misinterpretation of s. 31 91(24)

iv) Trial Judge's Analytical Framework Unclear 32

v) Court of Appeal Failed to Correct Erroneous Approach of Trial 34 Judge

vi) Findings of Fact Not Helpful in Supporting the Trial Judge',s 36 Decision

vii) Erroneous Focus on People and Circumstances, not Powers 38

PART IV - SUBMISSION ON COSTS 40

PART V - ORDER SOUGHT 40

PART VI - TABLE OF AUTHORITIES 41

PART VII - STATUTES 44

lU

FACTUM OF APPELLANTS ON CROSS-APPEAL 45

PART I-STATEMENT OF FACTS 45

I. Overview 45

PART II - POINTS IN ISSUE 45

PART III - ARGUMENT 45

II. The Erroneous Division of Powers Analysis Led Trial Judge to 45 Unsustainable Determination Concerning Metis and Indians

A. Trial Judge's Definition of"Indian" 45

B. Trial Judge's Definition of Metis 46

i) First Possible Interpretation of the Trial Judge's Definition of 48 Metis

ii) Court of Appeal Erred by Combining Second and Third Possible 49 Interpretation of the Trial Judge's Definition ofMetis

III. Erroneous Interpretation of Jurisprudence of this Court 51

A. Stare Decisis and the Need for Consistency in Identifying the Metis 51 People

B. Blais and the Need for Consistency 52

C. What this Court Found in Blais 54

D. Courts Below Failed to Deal Adequately with Powley, Cunningham 59 and Manitoba Metis Federation

i) Powley 59

ii) Cunningham 60

iii) Manitoba Metis Federation 62

E. Conclusion: Trial Judge's definition ofMetis is Unsustainable 63

PART IV - SUBMISSION ON COSTS 64

PART V -ORDER SOUGHT 64

lV

PART VI - TABLE OF AUTHORITIES 65

PART VII - STATUTES 67

FACTUM OF RESPONDENTS ON APPEAL

PART I-STATEMENT OF FACTS

I. Overview

1. Courts evaluate the scope of legislative authority under sections 91 and 92 of the

Constitution Act, 1867 when the validity of legislation is challenged. 1 Here, the appellants

improperly invite this Court to define the legislative authority of Parliament even though there is

no federal or provincial legislation in dispute. All of the declarations are sought in a legislative

vacuum. As a result there is not a proper context for a division of powers analysis. Division of

powers analysis starts by determining the pith and substance or dominant characteristics of

impugned legislation. Here, the appellants ask the Court to give an abstract answer - to define the

meaning of a word in the Constitution, and thus to define the jurisdictional limits of a head of

power in the absence of a legislative context. To do so would interfere with the free exercise of

the legislative function by pre-empting its operation.

2. This Court has consistently stated that a declaration should not issue where it has no

practical utility.2 The courts below recognized that the second and third declarations sought by the

appellants should not issue because they were vague and would lack practical effect. In respect of

non-status Indians the first declaration sought also is redundant. It is undisputed that Parliament

can validly enact laws that apply to non-status Indians.

3. Both courts below erred in holding that the Metis people are "Indians" under s. 91(24) of

the Constitution Act, 1867. The Federal Court's approach to constitutional interpretation lacked

clarity, as illustrated by the Court of Appeal's finding that the trial judge's definition of Metis was

open to three different interpretations. The Court of Appeal's efforts to salvage the trial judge's

ultimate conclusion that the Metis are Indians only compounded the error.

1 Constitution Act, 1867, (UK), 30 & 31Viet,c3, reprinted in RSC 1985, Appendix II, No 5, ss 91, 92 [Constitution Act, 1867]. 2 Solosky v Her Majesty the Queen, [1980] 1 SCR 821at832, 833, 105 DLR (3d) 745 [Solosky]; Borowski v Canada (A.G.), [1989]1 SCR 342 at 353, 358-365, 57 DLR (4th) 23 l. [Borowski]; Operation Dismantle v The Queen, [1985] I SCR44l at456-457, 18DLR(41h)48l [Operation Dismantle].

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4. In Blais, Powley, Cunningham and Manitoba Me tis Federation, 3 this Court has consistently

and clearly held that the Metis are a distinct Aboriginal people separate from Indians in culture,

history and identity. The error of the courts below in not reaching the same conclusion as this court

is directly linked to their failure to apply proper p1inciples for interpreting the Constitution. The

courts below embraced the "expansionist theory" of the appellants' expert witnesses as the basis

for concluding that all Aboriginal peoples are encompassed by the term "Indian" in s. 91 (24 ). That

theory posits that all Aboriginal peoples stood in the way of the settlement of what is now western

Canada, and that therefore it was necessary for the federal government to have authority over all

Aboriginal peoples under s. 91 (24) in order to achieve the extension of Canadian sovereignty over

the West. But in reality the federal government had plenary legislative and executive authority

over western Canada in the decades after Confederation. The courts below erred in assuming that

s. 91(24) had to be the source of authority for all federal enactments affecting Metis people, and

then reasoning backwards to an interpretation of s. 91 (24) that would square with this assumption.

They failed to give primacy to the written words of the Constitution and failed to place the term

"Indian" in its proper historical, constitutional and jurisprudential context. Had they done so, they

would have reached the same conclusion that this Court has that the Metis are a unique and

distinct Aboriginal people.

5. Both levels of government, when acting within their jurisdictional authority, can enact

legislation that applies to the Metis. Both levels of government have significant obligations with

respect to rights protected bys. 35 of the Constitution Act, 1982,4 whatever the jurisdictional lines

may be. An abstract declaration with respect to the scope of legislative authority will not provide

the solutions the appellants seek, and would risk creating unforeseen consequences that would

impede the ability of both levels of government to work together to achieve reconciliation.

II. General Background

A. The Declarations Sought

3 R v Blais, 2003 SCC 44, (2003] 2 SCR 236 [Blais]; R v Powley, 2003 SCC 43, (2003] 2 SCR 207 [Powley]; Alberta (Aboriginal A.flairs and Northern Development) v Cunningham, 2011 SCC 37, (2011] 2 SCR 670 [Cunningham]; Manitoba Metis Federation Inc. v Canada (Attorney General), 2013 SCC 14, (2013] 1 SCR623 [Manitoba Metis Federation]. 4 Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 35 [Constitution Act, 1982].

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6. In this appeal, as in the proceedings below, there is no challenge to the constitutional

validity of any present or proposed federal or provincial legislation.

7. The appellants sought three declarations from the Federal Court:

1. that Metis 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;

2. that the Queen (in right of Canada) owes a fiduciary duty to Metis and non­status Indians as Aboriginal people; and

3. that the Metis and non-status Indian peoples of Canada have the right to be consulted 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. 5

8. Justice Phelan ("the trial judge") granted the first declaration, but declined to issue the

second or third declarations. 6 The Crown appealed the decision to grant the first declaration, the

appellants cross-appealed the decision not to grant the second and third declarations.7 The Federal

Court of Appeal granted the Crov.rn's appeal in part by deleting the reference to non-status Indians

in the first declaration. The cross-appeal was dismissed. 8 In this Court the appellants seek to restore

the term "non-status Indian" to the first declaration and to have the second and third declarations

issued. Those issues are dealt with in this responding facturn. In its cross-appeal, the Crown seeks

to have the first declaration dismissed in its entirety. That issue is dealt with primarily in the cross­

appeal portion of the factum.

B. Origins of the Litigation

9. The individual appellants self-identify as Metis or non-status Indians.9 The appellant

Congress of Aboriginal Peoples "CAP" is an organization that offers representation to Metis and

5 Reasons for Judgment of Phelan J dated January 8, 2013, Federal Court at para 3 [FC Reasons], Appellants' Record, Volume 1, p 7. 6 Judgment of Phelan J dated January 8, 2011, Federal Court at paras a, b [FC Judgment], Appellants' Record, Volume 1, pl; FC Reasons ibid at para 619, Appellants' Record, Volume 1, p 175. 7 Reasons for Judgment ofNoel JA, Dawson JA, Trudel JA dated April 17, 2014, Federal Court of Appeal at para 2 [FCA Reasons], Appellants' Record, Volume 1, pp 184-185. 8 Ibid at paras 3-5, Appellants' Record, Volume I, pp 185-186. 9 FC Reasons supra note 5 at paras 29-37, Appellants' Record, Volume 1, pp 14-16; FCA Reasons ibid at para 8, Appellants' Record, Volume 1, p 186.

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non-status Indians. 10 As recognized by the trial judge, other organizations also claim representation

of Metis peoples, and CAP is not the sole recognized voice of the Metis. 11

10. This action was commenced on December 14, 1999. 12 The original claim was that Metis

and non-status Indians were entitled to certain rights, including the "right to be considered and

treated as 'Indians' within the meaning, and for the purposes, of s. 91(24) of the Constitution Act,

1867." The appellants also claimed the right to "be treated equally and without discrimination vis­

a-vis other Aboriginal people" in accordance withs. 15(1) of the Charter. 13

11. The claim was subsequently amended to define Metis and non-status Indians and to delete

the reference to s. 15( 1) of the Charter. 14 In 2003 the Crown filed a defence to the amended claim 15

and the appellants filed their reply to the defence. 16 Fallowing the death of Harry Daniels, one of

the original plaintiffs, leave was granted to amend the claim by adding Gabriel Daniels and Terry

Joudrey as plaintiffs.17 The pleadings were further amended18 and the appellants agreed to be

bound by an undertaking that they did not seek "damages or any declaration that their rights

pursuant toss. 15, 25 and 27 of the Charter have been infringed."19 The trial commenced on May

2, 2011.

C. The Evidence of the Parties

12. The primary witnesses relied on by the trial judge were William Wicken, an historian at

York University and Gwyneth Jones, an independent consultant with an MA in history from York

University.20

10 FC Reasons supra note 5 at para 40, Appellants' Record, Volume 1, p 17; FCA Reasons supra note 7 at para 9, Appellants' Record, Volume 1, p 187. 11 FC Reasons ibid at paras 45- 47, Appellants' Record, Volume 1, p 18. 12 Statement of Claim, dated December 14, 1999, Appellants' Record, Volume 2, p I. 13 Statement of Claim at para 20, Appellants' Record, Volume 2, pp 10-1 L 14 Amended Statement of Claim at paras 17, 21 and 27(c), Appellants' Record, Volume 2, pp 25, 28-29. 15 Statement of Defence dated May 20, 2003, Appellants' Record, Volume 2, p 46. 16 Reply of Congress of Aboriginal Peoples dated August 1, 2003, Appellants' Record, Volume 2, p 69. 17 Order and Reasons for Order of Prothonotary Hargrave, May 13, 2005, Appellants' Record, Volume 2, p 145. 18 Fresh as Amended Statement of Claim filed November 17, 2005, Appellants' Record Volume 2, p 31; Order of Prothonotary Lafreniere dated November 4, 2005, Appellants' Record, Volume 2, p 80. 19 Order and reasons for Order of Prothonotary Lafreniere dated November 4, 2005, Appellants' Record, Volume 2, p90. 20 FC Reasons supra note 5 at paras 147-150, 161, 164, 165, Appellants' Record, Volume 1, pp 47, 50, 51.

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13. Dr. Wick en was the primary source of the appellants' "expansionist theo1y" of the purpose

of Confederation, which served as the basis for the trial judge's conclusion that "Indians" in s.

91 (24) of the Constitution Act, 1867 must be interpreted to mean all Aboriginal peoples in Canada.

The expansionist theory postulates that Parliament had to have legislative power over all people

who had any Aboriginal heredity in order to fulfill the economic purpose of Confederation, which

was the expansion and settlement of the West. The trial judge summarized Dr. Wicken's evidence

as showing the need for federal control over "Aboriginal people and communities where necessary

to facilitate economic expansion and development of the Dominion"21 and that because there was

"significant diversity within Aboriginal populations and communities ... a broad power of control

and consistency was needed to address the needs of a developing Dominion".22

14. As these passages illustrate, both the trial judge and the appellants' experts used

terminology loosely. Terms such as "native", "Aboriginal" and "Indian" were all used

interchangeably by the trial judge and the appellants' experts.23

15. The Crown relied primarily on two experts. The first was Stephen Patterson, an historian

and professor emeritus at the University of New Brunswick.24 The second was Alexander von

Gemet, an adjunct professor of anthropology at the University of Toronto.25

16. Dr. Patterson was accepted by the trial judge as an expert in Maritime aboriginal history

and gave expert evidence on the Aboriginal peoples of Eastern North America and their contact

with Europeans.26 The trial judge's only concern with Dr. Patterson was that his report was

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

Atlantic Canada)" and therefore "in this area" he saw the evidence of Dr. Patterson as less helpful

than that of Dr. Wicken.27 Dr. von Gemet was accepted by the trial judge as an expert but his

evidence was accorded less weight than that of the other experts. 28

21 Ibid at para 151 (a)(i), Appellants' Record, Volume 1, pp 47-48. 22 1bidatpara 151 (b),Appellants' Record, Volume l,pp47-48. 23 Ibid at paras 28, 353-354, 369, 555, 566, Appellants' Record, Volume I, pp 11, 98-99, 103, 156, 160. 24 Ibid at para 152, Appellants' Record, Volume 1, pp 47-48. 25 Ibid at para 175, Appellants' Record, Volume 1, p 54. 26 Ibid at paras 153-154, Appellants' Record, Volume l, pp 48-49. 27 Ibid at para 155, Appellants' Record, Volume l, p 49. 28 Ibid at paras 176-182; Appellants' Record, Volume 1, pp 55-56.

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17. The Crown does not challenge the trial judge's assessment of the experts. But the trial

judge erred by using the expert evidence to fashion a novel and expansive interpretation of the

Constitution (and specifically the word "Indian" in s. 91(24)). This led him to the erroneous

conclusion that the Constitution required that the federal Crown have legislative authority in

relation to the Metis as an aboriginal collective. In support of this argument, specific and detailed

reference is made to the evidence in Part III (Argument) of the factum.

III. Decision of the Trial Judge

18. The trial judge declined to issue the second declaration (fiduciary duty) sought by the

appellants. He noted that this Court has found that the Crown has a fiduciary relationship with

Aboriginal people but that relationship is limited and is not "open-ended". 29 He recognized that

the declaration was sought " ... without specific facts about what duty has been breached for which

such a declaration would have any utility. The Court is not asked to determine that there is a duty

to do or not do anything. "30

19. The trial judge also declined to issue the third declaration sought by the appellants (duty to

negotiate). He held that the law on the duty to negotiate is well-developed with the purpose being

to further reconciliation.31 He summarised the declaration sought as being " ... some form of

declaration that the Crown has a duty to consult on the identity and definition of the rights ofMNSI

[Metis and non-status Indians] ... ". 32 Because of the broad nature of the declaration sought and the

lack of particulars to support it, the trial judge concluded that he could "offer no guidance" and

that in the circumstances of this case he declined to grant the declaration concerning negotiation

and consultation.33

20. The focus of the trial judge's reasons was the first declaration sought by the appellants

which he granted:

[T]he Court declares those persons who are Metis and those who are non-status Indians as set forth in the Reasons for Judgment are "Indians" within the meaning

29 Ibidatparas604-606,Appellants' Record, Volume l,pp 169-171. 30 Ibid at para 608, Appellants' Record, Volume 1, p 172. 31 Ibid at para 611, Appellants' Record, Volume I, p 173. 32 Ibid at para 613, Appellants' Record, Volume 1, p 173. 33 Ibid at paras 614, 616, Appellants' Record, Volume 1, pp 173, 174.

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of the expression "Indians and Lands reserved for the Indians" contained ins 91(24) of the Constitution Act, 1867.34

21. In support of this declaration, the trial judge found that the federal government exercised

s. 91(24) jurisdiction to enact legislation that applied to people of mixed ancestry, and that this

meant that the federal government has jurisdiction over the Metis. 35 He found that the "evidence

established that the aboriginal population was mixed, varied and interrelated" and that it is "not

possible to draw a bright line· between half-breeds/Metis and Indians."36 The trial judge defined

the Metis as individuals of mixed ancestry whose "Indianness" is central to their identity,37 treating

them essentially as a type of non-status Indian. 38 He defined "non-status Indians" as people of

mixed ancestry who could be granted Indian status by Parliament under its s. 91(24) jurisdiction.

In the course of doing so, the trial judge provided a list of the criteria that would allow someone

to qualify for Indian status, thereby giving a definition of the constitutional term "Indians".39

22. The trial judge determined what the term "Indian" meant in the context of s. 91 (24) at the

time of Confederation without referring to the context of what other courts, primarily this Court,

have found in respect of the status of the Metis as a separate Aboriginal people.

23. A prime example of this approach is found in the trial judge's treatment of one of the key

historical issues: the significance of s. 31 of the Manitoba Act, J 87a4° and particularly the phrase

"towards the extinguishment of the Indian Title". 41 The trial judge first distinguished s. 31 as being

focused on the Red River Metis, and not being reflective of other Metis in the Northwest.42 He

also sought to diminish the importance of the interpretation of s. 31 by noting that it has been the

"subject of other litigation" [the decision of this Com1 in Manitoba Metis Federation] and that he

was "not in a position to nor is it necessary for the resolution of the issues here [presumably the

term "Indian" in s. 91(24)], to determine whether Metis/half-breeds had Indian title to be

34 FC Judgment supra note 6 at para a, Appellants' Record, Volume 1, p 1. 35 FC Reasons supra note 5 at paras 459-468, Appellants' Record, Volume 1, pp 129-131. 36 Ibid at para 381, Appellants' Record, Volume l, p 108. 37 Ibid at para 117, Appellants' Record, Volume 1, pp 38-39. 38 Ibid at para 544, Appellants' Record, Volume 1, p 153. 39 Ibid at para 122, Appellants' Record, Volume 1, pp 39-40. 40 Manitoba Act, 1870, SC 1870, c 3, reprinted in RSC 1985, Appendix II, No. 8 [Manitoba Act, 1870]. 41 FC Reasons supra note 5 at para 399, Appellants' Record, Volume I, pp 112-113. 42 Ibid at para 398, Appellants' Record, Volume l, p 112.

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extinguished or what Indian title may have meant at the time. The case before the Comi is not one

of aboriginal rights and title."43

24. The trial judge also distinguished the 1885 speech of Sir John A. Macdonald, in which he

famously recanted an earlier assertion that land reserved for the Metis in what is now Manitoba

was for "the extinguishment of Indian title".44

25. Rather than accept the clear and uncomplicated words of the first Prime Minister at their

face value, the trial judge relied on the evidence of Ms. Jones to provide the "context" for this

famous speech. The "context" amounted principally to the fact that the speech was given in a

heated political debate in Parliament "in the early hours of the morning" and that it contained

inaccuracies about the number of"half-breeds" and the land compensation they received.45

26. Parenthetically, it is also of interest that the trial judge warned against the use of Hansard

"as a basis for legal conclusions" when dealing with the Macdonald speech, 46 but then relied

extensively on the evidence of retired government officials for the "policy" basis to support his

conclusions that "Indians" included Metis.47

27. This Court in Blais relied on the same 1885 speech for exactly the opposite conclusion.48

The trial judge distinguished this Cami's decision by stating that the evidence before him was

"broader geographically and historically than other cases cited."49 He also stated reliance on Blais

is "blunted" because this Court did not answer the specific question of whether the Metis are

"Indians" under s. 91(24) and this Court refused to apply a "continuity of language" requirement

to the Constitution in readings. 35 of the Constitution Act, 1982.50

28. The trial judge similarly distinguished this Court's decision in Cunningham. He said that

Cunningham did not specifically deal with the constitutionality of legislation or "otherwise deal

43 Ibid at para 400, Appellants' Record, Volwne 1, p 113. 44 Ibid at para 413, Appellants' Record, Volume 1, pp 116-117. 45 Ibid at paras 416-417, Appellants' Record, Volume 1, p 118. 46 !bid at para 414, Appellants' Record, Volume l, p 117. 47 Ibid at paras 132-145, Appellants' Record, Volume 1, pp 42-46. 48 Blais supra note 3 at para 22. 49 FC Reasons supra note 5 at para 575, Appellants' Record, Volume 1, p 163. 50 Ibid at para 573, Appellants' Record, Volume 1, p 162.

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withs 91(24)."51 He added that Cunningham was "neither dispositive nor strong authority against

the requested declaration" since this Court in Blais left open the very question sought to be

answered and the Court in Cunningham made no reference to Blais. 52 He also stated, as he did

with Blais, that the evidence in this case was different from that in Cunningham.53

29. What the trial judge missed in these decisions, and others such as Manitoba Metis

Federation, is that together they provide the full historical, legal and constitutional context upon

which the decision in this case must be based.

30. The trial judge also reviewed this Court's decision in Re Eskimo54 and saw the "common

thread" of that decision as being that the Eskimo (now Inuit) were "part of the people identified as

'aborigines' and that the term 'Indian was broad enough to cover all 'aborigines"'.55

31. The trial judge quickly accepted that this did not mean that the term "aborigines" used in

Re Eskimo had the same meaning or content as "Aboriginal peoples" in s. 35 of the Constitution

Act, 1982 which specifically enumerates Indians, Inuit and Metis. What is left unstated in the trial

judgment, but is clearly assumed, however, is that at the time of the Re Eskimo decision the Metis,

who without question were a clearly identified and separate Aboriginal group from Indians, were

also captured by the term "aborigines".

32. Based on his interpretation of the Re Eskimo decision, and applying what he called a

"purposive approach" to constitutional interpretation, the trial judge arrived at his crucial

conclusion that Parliament has power over anyone with "a native hereditary base":

Applying the purposive approach in light of the finding in In Re Eskimo Reference, above, I accept the Plaintiffs' argument supported by the opinions of Professor Wicken and Ms. Jones that the purpose of the Indian Power included the intent to control all people of aboriginal heritage in the new territories of Canada. The purpose of the Indian Power included assisting with the expansion and settlement of the West of which the building of the railway was a part. Absent a broad power over a broad

51 Ibid at para 591, Appellants' Record, Volume l, p 167. 52 Ibid at para 591, Appellants' Record, Volume 1, p 167. 53 Ibidat para 595, Appellants' Record, Volume l, p 168. 54 In the Matter of a Reference as to Whether the Term "Indians" in Head 24 ofSection.91 of the British North America Act, 1867, Includes Eskimo Inhabitants of the Province of Quebec, [1939] SCR 104, [1939] 2 DLR 417 [Re Eskimo]. 55 FC Reasons supra note 5 at para 555, See also paras 560, 561, Appellants' Record, Volume l, pp 156, 158.

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range of people sharing a native hereditary base, the federal govenunent would have difficulty achieving this goal.56

33. He used this as the basis to later confirm his conclusion that the Metis are included ins.

91(24). 57

34. Although the trial judge agreed that his declaration would not compel Parliament to enact

legislation or to provide programs and services, he concluded that it would resolve a real dispute

as, in his view, the "resolution of constitutional responsibility has the potential to bring clarity to

the respective responsibilities of the different levels of govenunent. "58

IV. Decision of the Federal Court of Appeal

35. The Federal Court of Appeal allowed the appeal in part, set aside the declaration made by

the trial judge and restated it by deleting the reference to non-status Indians as follows:

The Court declares that the Metis are included as "Indians" within the meaning of section 91(24) of the Constitution Act, 1867.59

In all other respects the appeal and cross-appeal were dismissed. 60

36. The Court of Appeal held that the declaration in respect of non-status Indians lacked

practical utility and ought not to have been granted. It set aside the declaration to the extent that it

refen-ed to non-status Indians.61 However, the Court of Appeal found that the declaration in respect

of the Metis did have practical utility.62

37. The Court of Appeal found the definition of the Metis advanced by the trial judge to be

"problematic",63 and concluded that it was not "necessary to exhaustively or definitively define

56 Ibid at para 566, Appellants' Record, Volume 1, p 160. 57 Ibid at para 600, Appellants' Record, Volume 1, p 169. 58 Ibid at paras 72, 110, Appellants' Record, Volume 1, pp 25, 37. 59 Judgment of Noel, JA, Dawson JA, Trudel JA dated April 17, 2014, Federal Court of Appeal, p 2 [FCA Judgment], Appellants' Record, Volume l, p 179; FCA Reasons supra note 7 at paras 159-160, Appellants' Record, Volume 1, p 232. 6° FCA Judgment supra note 59 at para 2, Appellants' Record, Volume 1, p 179; FCA Reasons supra note 7 at paras 5, 159-160, Appellants' Record, Volume 1, pp 186, 232. 61 FCA Reasons supra note 7 at paras 74-79, Appellants' Record, Volume 1, pp 210-212. 62 Ibid at paras 65-73, Appellants' Record, Volume 1, pp 206-210. 63 Ibid at para 88, Appellants' Record, Volume 1, p 214.

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the term Metis",64 but was sufficient to not define it "in a manner that is contradictory with history

or the jurisprudence of the Supreme Court."65 In the result, the Court of Appeal restated the

declaration to read that "the Metis are included as 'Indians' within the meaning of section 91(24)

of the Constitution Act, 1867."66

38. The Court of Appeal held that the trial judge did not err in applying a "purposive approach"

in his constitutional analysis of s. 91(24) and affirmed that "the Metis were considered within

section 91 (24) at the time of Confederation. "67

64 Ibid at para 110, Appellants' Record, Volume 1, p 219. 65 Ibid at para 111, Appellants' Record, Volume 1, p 219. 66 Ibid at paras 5, 159, Appellants' Record, Volume I, pp 186, 232. 67 Ibid at paras 131-148, Appellants' Record, Volume 1, pp 224-230.

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PART II - POINTS IN ISSUE

39. The questions to be determined in the appeal are whether the courts below erred by:

i) issuing the first declaration that the Metis and non-status Indians are "Indians" under s. 91(24) of the Constitution Act, 1867;

ii) declining to issue the second declaration in respect of fiduciary duties allegedly owed by the Crown to Metis and non-status Indians; and

iii) declining to issue the third declaration that Metis and non-status Indians have a right to consultation in respect of their rights and needs as Aboriginal peoples.

40. The trial judge erred in issuing the first declaration, but correctly refused to issue the second

and third declarations. The Court of Appeal erred by affirming the granting of the first declaration

in respect of the Metis, but correctly reversed the trial Judge's granting of the first declaration in

respect of non-status Indians. The Court of Appeal correctly affirmed the trial judge's decision not

to grant the second and third declarations.

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PART III -ARGUMENT

"It is perhaps understandable that doctrine, which seeks to systematize the law, may from time to time have recourse to general theories. However, this is a dangerous method to apply for the courts, as the latter must proceed case by case, in a more empirical manner."68

I. None of the Declarations Should Issue

A. Introduction

41. The fundamental problem with the declarations sought is that they would all be made in a

legislative and factual vacuum. The declarations seek to identify or set the outer boundaries of the

s. 91 (24) powers of Parliament in the absence of a legislative context. This problem is reflected in

the difficulty both courts below had in defining "Indian" and "Metis". That in turn is rooted in the

fact that Parliament can legislate as it deems appropriate within its head of power with respect to

matters that concern "Indians, and Lands reserved for the Indians". As long as the pith and

substance of federal legislation concerns Indians, the fact that it may apply to some individuals or

communities who are identified as Metis does not imply that Parliament must have constitutional

authority over the Metis as an Aboriginal people.

42. The trial judge erred in declaring that the term "Indian" ins. 91 (24) of the Constitution Act,

1867 included non-status Indians and Metis. The Court of Appeal corrected this error with respect

to non-status Indians, but erred by affirming the conclusion that "Indian" included Metis. The issue

of how to define the term "Indian" in its proper historical and jurisprudential context is dealt with

in the next section below. The issue of the definition of "'Metis" in the context of the first

declaration is dealt with primarily in the cross-appeal.

43. The trial judge and the Court of Appeal correctly declined to issue the second and third

declarations because they would be vague and would lack any practical utility.

B. No Practical Utility

i) Declarations Sought are Redundant Re: Non-Status Indians

68 AG Quebec v Labrecque, [1980] 2 SCR 1057 at 1081(BeetzJ),125 DLR(3d) 545.

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44. "Non-status Indian" is a te1m which can only have any meaning in relation to the Indian

Act, the statute that determines "status". Non-status Indians are Indian people who are not

registered under the Indian Act.69 So long as the pith and substance of legislation is aimed at

dealing with Indians or lands reserved for them, Parliament could pass legislation in relation to

non-status Indians. The requirements for registration could be changed. Since Parliament clearly

could pass legislation aimed at non-status Indians, the first declaration in respect of non-status

Indians is redundant and lacks practical utility. It would declare something which is already self­

evident.

45. The Federal Court of Appeal agreed with this conclusion, stating that "[i]t is also

inappropriate to grant a declaration clarifying the limits of who may be considered an Indian

notwithstanding their exclusion from the Indian Act".70

ii) Legislative Vacuum

46. The analytical framework for determining the scope of a legislative head of power properly

begins by determining the pith and substance or the dominant characteristics of impugned

legislation. The analysis then proceeds to identify the head of power with which that characteristic

is most closely related.71 This is necessary both in order to ground the analysis and in order to

ensure due respect for the distinction between the legislative and the judicial function.72 The courts

below improperly attempted to define the scope of s. 91(24) in a vacuum.

4 7. Even in reference cases, the Court may decline to answer questions that are vague or lack

a sufficient factual basis.73 The Court's role is to determine whether statutes or proposed statutes

are validly enacted, not to define the outer limits of constitutional authority in the abstract.74

69 Indian Act, RSC 1985, c I-5 [Indian Act]. 7° FCA Reasons supra note 7 at para 77, Appellants' Record, Volume l, p 211. 71 Reference re Employment Insurance Act (Canada), 2005 SCC 56 at para 8, [2005] 2 SCR 669 [Re Employment Insurance Act]. 72 Reference re Canada Assistance Plan (British Columbia), [1991] 2 SCR 525 at 545, 83 DLR (4th) 297 [Re Canada Assistance Plan]; Doucet-Boudreau v Nova Scotia (Minister of Education), 2003 SCC 62 at para 33, [2003] 3 SCR3. 73 Reference re Secession of Quebec, [1998] 2 SCR 217 at paras 25, 29-31, 161 DLR (4th) 385. 74 Reference re Same-Sex Marriage, 2004 SCC 79 at para 28, [2004] 3 SCR 698 [Re Same Sex Marriage]; Re Canada Assistance Plan supra note 72 at 559-560.

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Abstract answers interfere with the free exercise of the legislative function by pre-empting its

operation. The appellants invite the Court to disregard this fundamental principle.

48. The Court of Appeal did not deal with this issue directly, but instead treated it as part of its

consideration of whether the declaration would lack practical utility. Citing Manitoba Melis

Federation, the Court of Appeal found that a declaration would assist the parties in extra-judicial

negotiations, and went on to find that "actual or proposed legislation is not a condition precedent

to the issuance of a declaration."75 In effect, the Court of Appeal read Manitoba A1etis Federation

as giving licence to depart from the incremental approach to division of powers analysis.

49. This is a fundamental error in principle. Decisions on the limits oflegislative authority do

not just affect the immediate parties to litigation. They define the limits of federal and provincial

jurisdiction. They determine the validity of existing legislation and dictate the potential scope of

future legislation. The decision in Manitoba Metis Federation simply decided issues between the

Crown and the plaintiffs in that case. 1\1anitoba Metis Federation does not justify departing from

principles that reflect the broad and enduring implications of a division of powers determination.

50. There is no practical utility in issuing the first declaration in respect of non-status Indians

or Metis as the declaration is sought in a legislative vacuum.

51. In Borowski this Court held that a declaration must resolve a real or live controversy.76

There are, of course, many real, live and very serious issues that arise concerning non-status

Indians and the Metis. As found by the trial judge, many of these people are on the fringes of

contemporary society and have many difficult and long-standing issues that require attention from

all levels of government. 77

52. However, the core of the appellants' claim is that they are denied access to federal programs

and services that only status Indians (as defined under the Indian Act) are eligible to receive.78

They seek to have a level of government (presumably the federal Crown) declared responsible for

75 FCA Reasons supra note 7 at para 69, Appellants' Record, Volume l, p 208. 76 Borowski supra note 2 at pp 353, 356-358. 77 FC Reasons supra note 5 at para l 08, Appellants' Record, Volume 1, p 36. 78 For example, see Dwight Dorey's evidence, Trial Transcripts, Volume 2, page 153, line 15 to page 166, line 24, Appellants' Record, Volume 3, pp 66-79; FC Reasons supra note 5 at para 108, Appellants' Record, Volume I, p 36; Appellants' Factum filed April 1, 2015 at para 30 [Appellants' Factum].

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non-status and Metis peoples.79 However, the division of powers analysis required in this matter

determines legislative jurisdiction, not responsibility. More importantly, unlike most division of

powers cases, there is no legislation at issue here.

53. In the end, there is no practical utility to the declarations as there has been no claim or

finding that affects the federal Indian Act or any other federal or provincial statute.

iii) Unclear What is Sought by Second Declaration

54. The trial judge correctly held that making "some general statement concerning fiduciary

duty"80 ..• "without specific facts about what duty has been breached"81 would not meet the test

for granting declarations: it would lack practical utility in resolving a dispute.

55. Originally, the wording of the second declaration sought by the appellants referred to a

fiduciary duty of the federal Crown to non-status Indians and Metis. 82 What the appellants now

seek is a declaration that the Crown is in a fiduciary relationship with both Aboriginal peoples. 83

56. The change is significant in that it shows that the appellants themselves are uncertain about

what declaration is being sought. It also highlights a misunderstanding of this Court's

jurisprudence. It is settled law that the Crown is in a fiduciary relationship with the Aboriginal

peoples of Canada, but that the relationship does not always lead to fiduciary duties.

57. In Wewaykum Indian Band v Canada, this Court affirmed this distinction:

... I think it desirable for the Court to affirm the principle, already mentioned, that not all obligations existing between the parties to a fiduciary relationship are themselves fiduciary in nature (Lac Minerals, supra, at p. 597), and that this principle applies to the relationship between the Crown and aboriginal peoples. It is necessary, then, to focus on the particular obligation or interest that is the subject matter of the particular dispute and whether or not the Crown had assumed

79 FC Reasons supra note 5 at paras 103, 110, Appellants' Record, Volume 1, pp 35, 37. 80 Ibid at para 609, Appellants' Record, Volume 1, p 172. 81 Ibid at para 608, Appellants' Record, Volume I, p 172. 82 Ibid at paras 3(b), 602, Appellants' Record, Volume I, pp 7, 169; Fresh as Amended Statement of Claim at para 27, Appellants' Record, Volume 2, p 43. 83 FCA Reasons supra note 7 at paras 2(i), 154, Appellants' Record, Volume 1, pp 184-185, 232; Appellants' Factum at paras 77-78.

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discretionary control m relation thereto sufficient to ground a fiduciary obligation. 84

58. More recently in Manitoba Metis Federation this Court explained that...

[t]he relationship between the Metis and the Crown, viewed generally, is fiduciary in nature. However, not all dealings between parties in a fiduciary relationship are governed by fiduciary obligations. 85

59. The trial judge discussed in his reasons the difference between fiduciary duties and the

fiduciary relationship. 86 He was correct in stating that such a declaration would have resolved no

dispute, because, as the trial judge noted, "[t]there is no dispute that the Crown has a fiduciary

relationship with Aboriginal people(s] of Canada".87 On a more basic level, the second declaration

can have no practical effect because the "duties" that are sought to be imposed on the Crown are

never clearly delineated.

60. Consequently, if what the appellants seek is related to the original wording of the

declaration in that they seek to impose an undefined "duty", the declaration is of no practical effect.

Alternatively, if what they now seek is the more recent declaration concerning fiduciary

relationships, it again is of no practical utility since the principle of a fiduciary relationship between

the federal Crown and the Aboriginal peoples is long established.

iv) Unclear What is Sought by Third Declaration

61. The third declaration sought to oblige the federal Crown to consult and negotiate with

Metis and non-status Indians, but to do so "through representatives of their choice."88 As the trial

judge correctly noted, the Metis community is divided on leadership and representation, leading

to a dispute over who are the representatives of choice of the Metis. 89

62. He also correctly found that the third declaration was excessively broad.

84 Wewaykum Indian Bandv Canada, 2002 SCC 79 at para 83, [2002] 4 SCR 245. 85 Manitoba Metis Federation supra note 3 at para 48. 86 FC Reasons supra note 5 at paras 604-609, Appellants' Record, Volume 1, pp 169-172. 87 Ibid at para 604, Appellants' Record, Volume 1, p 169. 88 Ibid at para 3(c), Appellants' Record, Volume 1, p 7; FCA Reasons supra note 7 at para 2(ii), Appellants' Record, Volume 1, pp 184-185.

· 89 FC Reasons supra note 5 at paras 124, 616, Appellants' Record, Volume 1, pp 40, 174.

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The principle of a duty to consult and negotiate exists in other areas of Canadian law including labour relations and even political secession. The breadth of the principle is so wide that without reference to a specific matter to be consulted on or negotiated, a general declaration would be abstract and not particularly usefuI.90

63. In its original form, the request for a third declaration focused on a broad duty for the

federal Crown to consult. Such a declaration would have no utility since it is already clear that the

federal Crown owes a duty to consult with Aboriginal peoples about any proposed Crown decision

that might adversely affect a claimed Aboriginal or treaty right.91 The extent of the duty will

depend on the strength of the claim, the seriousness of the adverse effect, and the particular facts

of the Crown decision under review. 92 Again, the trial judge found that the declaration sought was

too broad to be useful:

Absent better particulars of what is at issue to consult on or negotiate, the Court can offer no guidance. The duty to consult and negotiate depends on the subject matter, the strength of the claim and other factors not before the Court.93

64. As originally framed, the third declaration would also have stipulated that the federal

Crown must negotiate. Although it is unclear what is meant by the term "negotiate" it must mean

something other than complying with the duty to consult. Normally, a decision to enter into

negotiations to resolve a dispute is voluntary on both sides. No examples are provided of cases in

which the federal or provincial Crown has been ordered to negotiate with Aboriginal peoples, if

by that is meant something different than complying with the duty to consult.

65. Consequently, as with the second declaration, there is no practical utility to the third

declaration. It either states a duty that is already imposed on the Crown in the form of the duty to

consult, or it refers to the term "negotiate" in a nebulous and unclear way.

C. The Declarations do not Settle Constitutional Responsibility

90 Ibid at para 612, Appellants' Record, Volume 1, p 173. 91 Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73 at paras 35, 37, 38, [2004] 3 SCR 511; See also Rio Tinto Al can Inc. v Carrier Sekani Tribal Council, 2010 SCC 43 at paras 51 ·54, [20 IO] 2 SCR 650. 92 Taku River Tlingit First Nation v British Columbia (Project Assessment Director), 2004 SCC 74 at paras 24, 29, [2004] 3 SCR 550. 93 FC Reasons supra note 5 at para 614, Appellants' Record, Volume I, p 173.

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66. The trial judge found that there is a "real live jurisdictional issue" concerning the question

of whether s. 91 (24) of the Constitution Act, 1867 "applies" to Metis people94 and that the first

declaration will "resolve the immediate dispute over jurisdiction" .95 However, none of the

declarations sought by the appellants will settle the issue of which level of government is

"responsible" for non-status Indians and Metis.

67. More importantly, s. 91 (24) of the Constitution Act, 1867, does not create responsibilities;

it defines an area oflegislative authority. The fact thats. 91(24) authorizes the federal Parliament

to enact laws in respect of "Indians, and Lands reserved for the Indians" does not compel the

exercise of that legislative power in any particular way. A finding that the Metis are "Indians"

within the meaning of s. 91(24) would not make them "Indians" for the purposes of the Indian Act,

nor would it oblige Parliament to amend the Indian Act to include the Metis or to pass other

legislation in relation to them.

68. The trial judge recognized this when he noted that nothing in his declaration created an

obligation on the part of Parliament to enact legislation with respect to Metis and non-status

Indians. 96 He also recognized that nothing in his declaration created an obligation on the part of

Parliament to extend programs and services to Metis and non-status Indians, or to create such

programs and services for them.97 Parliament is free to enact or repeal any law it chooses, within

its allotted sphere of competence. 98

69. The programs and services that the federal Crown provides to registered Indians are most

often provided under the spending power, not as a result of the exercise of Parliament's s. 91(24)

jurisdiction. The programs and services that federal or provincial governments provide under the

spending power, whether to Aboriginal people or others, are not restricted or determined by the

division of powers provisions of the Constitution.99

94 Ibid at paras 57-58, Appellants' Record, Volume l, pp 20-21. 95 Ibid at para 65, Appellants' Record, Volume 1, p 23. 96 Ibid at para 72, Appellants' Record, Volume 1, p 25. 97 Ibid at para 72, Appellants' Record, Volume 1, p 25. 98 Interpretation Act, RSC 1985, c I-21, s 42(1); Re: Canada Assistance Plan supra note 72; Peel (Regional Municipality) v Canada, [1992] 3 SCR 762 at 771 (Larner CJC), 791 (McLachlin J), 98 DLR (4th) 140. 99 YMHA Jewish Community Centre of Winnipeg Inc. v Brown, (1989] l SCR 1532, at 1548 to 1549, 59 D.L.R. (4th) 694; Re: Canada Assistance Plan supra note 72 at 567; and Peter W. Hogg, Constitutional Law of Canada, 3rd ed (Toronto: Carswell, 1992), at 150.

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70. The declaration granted by the trial judge is irrelevant in relation to whether the federal

Crown has the authority to modify programs and services for whom only status Indians are

presently eligible, so as to make them available to Metis and those who identify as non-status

Indians. As a result, his declaration is of no practical effect.

71. An example of how the federal Crown can extend existing programs and assistance to

Aboriginal peoples is found at paragraph 26 of the Appellants' factum. There, they describe how

the federal Crown has worked with various Aboriginal groups, including the Appellant CAP, to

fund employment training for all of the Appellants' members.

72. The trial judge attempted to root his declaration in what he described as federal-provincial

"political football buck passing", because lack of legislative jurisdiction was stated by federal

officials as being the reason why programs and services could not be extended to Metis and non­

status Indians. 100 That may have been the thinking of particular civil servants at the time, but as

shown above, legislative jurisdiction over Indians is a relatively insignificant factor in relation to

the issues at play. Moreover, an erroneous understanding of constitutional law on the part of civil

servants should not be the basis for the determination of a division of powers question. Such

determinations must be made on the proper application of constitutional principles. 101

D. The Definitions of the Courts Below are Unworkable and Unnecessary

73. Finally, the declarations cannot issue because, as detailed below, they are based on

definitions or descriptions of "non-status Indians" and "Metis" that cannot be supported when

placed in the proper historical and jurisprudential and constitutional context. The attempt to define

Indians and Metis in the abstract is also unnecessary. Parliament has power to legislate in relation

to Indians. A necessary part of Parliament's authority is the ability to distinguish between

individuals in legislation made under s. 91(24).102 However, the way in which Parliament chooses

to define "Indians" in legislation only operates for the purposes of that legislation. It does not

determine whether individuals or groups are actually Metis or Indian in any broader sense.

10° FC Reasons supra note 5 at para 107, Appellants' Record, Volume 1, p 36. tot Re B. C. Motor Vehicle Act, [1985] 2 SCR 486 at 507-508, 24 DLR (4th) 536. io

2 Natural Parents v Superintendent of Child Welfare, [1976] 2 SCR 751 at 772 (Martland J), 60 DLR (3d) 148; AG Canada v Canard, [ 1976] 1 SCR 170 at 207 (Beetz J), 52 DLR (3d) 548.

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II. Definition of Non-Status Indians

A. Trial Judge Erred by Issuing Declaration in Relation to Non-Status Indians

74. The trial judge defined non-status Indians as those people to whom Parliament could extend

Indian status. He went on to tell Parliament what criteria it should adopt in order to expand

eligibility for registration under the Indian Act, that is, "ancestral connection not necessarily

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 [sic] that person wishes to

be associated." 103 This description of the qualifications to obtain Indian status is, in effect, an

attempt to define what an "Indian" is for the purposes of Parliament's s. 91(24) jurisdiction.

75. As a result, the trial judge granted the declaration sought by the appellants as it related to

non-status Indians. 104

B. Court of Appeal Corrected Error of Trial Judge

76. The Court of Appeal correctly determined that the trial judge erred in giving the declaration

sought by the appellants in relation to non-status Indians because he failed to give adequate

consideration to the factors that demonstrate that such a declaration lacked practical utility. 105

77. The Court of Appeal properly determined that the trial judge's definition was simply

unsustainable. It reasoned that each instance of exclusion from Indian status would have to be

examined on a "case-by-case basis". 106 It accepted the trial judge's determination that the reason

for excluding people from Indian status are "complex, far ranging and often unrelated to one

another."107 Since individual circumstances needed to be reviewed, a declaration with respect to

non-status Indians collectively was not appropriate. There would be no practical utility to the

103 FC Reasons supra note 5 at para 122, Appellants' Record, Volume I, pp 39-40. 104 FC Judgment supra note 6 at para a, Appellants' Record, Volume l, pl; FC Reasons ibid at para 619, Appellants' Record, Volume I, p 175. 105 FCA Reasons supra note 7 at para 74, Appellants' Record, Volume 1, p 210. 106 Ibid at para 78, Appellants' Record, Volume 1, p 212. 107 Ibid at para 77, Appellants' Record, Volume 1, p 211.

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proposed declarations as they would not settle any issues between the non-status Indians and the

federal Crown. 108

78. As this Court stated in Solosky, when asked to issue a declaration, a court is to consider

whether the declaration will settle a real issue between the parties. 109 No tangible result would flow

from making the declarations sought here. No outstanding issues would be resolved. As noted

above, Parliament could, if it chose and assuming the legislation was in pith and substance related

to "Indians" or lands reserved for Indians, amend the Indian Act to bring under that legislation

many non-status Indian.

III. Declarations Should Not Apply to Metis

79. How the trial judge erred in defining the Metis is dealt with primarily in the cross-appeal.

However, even using the approach of the courts below it is clear that the declarations sought should

not apply to the Metis people.

80. As accepted by the appellants, determining who is Metis is a complex and difficult task. 110

The appellants' case is built upon the argument that the lines between Metis and Indian are blurred

and difficult to ascertain, with claims ofMetis identity to be determined on a case-by-case basis. 111

For example, although they accept that the Red River settlement was a Metis settlement, 112 they

argue that the situation in other areas such as the north shore of Lake Superior113 or Atlantic

Canada114 is less clear. Their expansionist theory of s. 91(24) is premised on a blending of all

Aboriginal peoples to the point that the term "Indian" is simply a generic title that includes anyone

of any degree of Aboriginal or native heredity_ll 5

108 lbid at para 79, Appellants' Record, Volume 1, p 212. 109 Solosky supra note 2 at 832, 833; see also Operation Dismantle supra note 2 at 456-457; FCA Reasons ibid at para 62, Appellants' Record, Volume 1, p 206. 11° FC Reasons supra note 5 at para 600, Appellants' Record, Volume 1, p 169. 111 Ibid at paras 381, 524, 594, Appellants' Record, Volume 1, pp 108, 146, 167; Appellants' Factum, para 59. ll2 FC Reasons supra note 5 at para 300, Appellants' Record, Volume I, pp 83-84. 113 Ibid at paras 246-250, Appellants' Record, Volume 1, pp 70-71. 114 Ibid at paras 194, 211, 216, 218, 219, Appellants' Record, Volume 1, pp 59, 63, 64, 65. 115 Ibid at paras 273, 318, 319, 320, Appellants' Record, Volume I, pp 76, 88, 89; FCA Reasons supra note 7 at paras 3 l(vii), 39, 40, 53, 54, 55, 91, 100, 108, Appellants' Record, Volume 1, pp 195, 198, 199, 203-204, 215, 217, 218-219; Appellants' Factum, paras 62, 65.

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81. However, the declarations which they seek pertain to distinct Aboriginal peoples: Indians

(i.e. non-status Indians) and Metis. So, although they blend all Aboriginal peoples together for the

purposes of identification under s. 91 (24), the appellants seemingly need to have separate identities

for purposes of the declarations. By the appellants' own evidence and argument, "Metis" is not a

concept that is easily identified. Even if it is assumed that the Metis are "Indians" withins. 91(24),

as with non-status Indians, there is no utility in issuing a declaration if we cannot know to whom

it will apply.

82. Moreover, an abstract answer to division of powers questions will not provide relief from

any social or economic disadvantages claimed by the Metis. Legislative jurisdiction is a relatively

inconsequential factor in relation to the obligations of the federal and provincial Crowns to engage

in relation to the rights of the Metis or the obligations owed to them under s. 35 of the Constitution

Act, 1982.

83. In recent decisions this Court has emphasized that both orders of government have

significant obligations with respect to rights protected bys. 35, whatever the jurisdictional lines

may be. 116 The Court has recognized that modem land claims agreements are not accomplished

through the exercise of unilateral federal legislative authority under s. 91(24), but through co­

operative federalism. 117 An abstract declaration with respect to the scope of legislative authority

will not provide the solutions the appellants appear to seek, and would risk creating ooforeseen

consequences that would impede the ability of both orders of government to work together to

achieve reconciliation.

84. Further, although the appellants abandoned their s. 15 Charter claim in this particular

matter, s. 15 claims remain available, in appropriate cases, to address claims of under-inclusiveness

in respect of particular programs that are available to registered Indians.

IV. Trial Judge Erred in Approach to Division of Powers Analysis

A. Introduction

116 Tsilhqot'in Nation v British Columbia, 2014 SCC 44, [2014] 2 SCR 256; Grassy Narrows First Nation v Ontario (Natural Resourcesj, 2014 SCC 48, [2014] 2 SCR447. 117 Quebec (Attorney Generalj v Moses, 2010 SCC 17, [2010] 1SCR557.

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85. The courts below erred in their approach to constitutional interpretation. As recently

emphasized by this Court, "[t]he primacy of our written Constitution remains one of the

fundamental tenets of our constitutional framework." 118 Division of powers analysis must

commence with the consideration of the meaning of the term in question, in this case the term

"Indian" in s. 91(24) of the Constitution Act, 1867, as that term was understood when the

Constitution was drafted.

86. A plain reading of s. 91 (24) of the Constitution Act, 1867 demonstrates that Parliament

does not have power or jurisdiction over the Metis as an Aboriginal collective, because they are

distinct and separate from Indians. Although Parliament can pass legislation that applies to the

Metis, it cannot pass laws under s. 91 (24) that are in pith and substance in relation to the Metis. It

can only pass laws in relation to Indians. Some Metis, because of their individual or collective

circumstances, may be affected by laws passed by Parliament that in pith and substance concern

Indians. But that does not mean that Parliament has legislative power over the Metis people as an

aboriginal collective.

87. Here, the trial judge largely ignored whether the accepted meaning of the term "Indian" at

the time of Confederation would have included the Metis people. Instead the trial judge accepted

the appellants' expansionist theory of the purpose of Confederation119 (and applied what he

described alternatively as either a "purposive" or "progressive" approach to constitutional

interpretation) and the purpose of s. 91 (24) of the Constitution Act, 1867, and then constructed a

definition of "Indian" that conformed to the expansionist theory. 120

88. This erroneous approach led the trial judge to conclude that "Indian" in s. 91(24)

encompassed all Aboriginal peoples, including Metis, despite the evidence before him, and despite

the clear findings of this Court in Blais, Powley, Manitoba Metis Federation and Cunningham that

the Metis were a distinct Aboriginal people at the time of Confederation and remain so today.

118 Quebec (Attorney General) v Canada (Attorney General), 2015 SCC 14 at para 18. 119 FC Reasons supra note 5 at para 345, Appellants' Record, Volume 1, p 96. 120 Ibid at paras 534, 535, 538, 540, 566, 578, Appellants' Record, Volume I, pp 150, 151, 152, 160, 164.

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89. The Court of Appeal failed to correct these significant errors of the trial judge. Instead, it

either accepted the erroneous expansionist theory as justified,12 1 or it re-wrote the decision of the

trial judge in an effort to repair his decision.

B. Principles to Take into Account in the Interpretation of the Constitution

i) Primacy of the Text

90. Constitutional interpretation focuses on the text. Put another way, it must "begin with the

language of the constitutional law or provision in question."122 More particularly, "the question is

not what may be supposed to have been intended, but what has been said." 123

91. This Court's decision in Blais is instructive. "The starting point in this endeavour is that a

statute - and this includes statutes of constitutional force - must be interpreted in accordance with

the meaning of its words considered in context and with a view to the purpose they were intended

to serve". 124 The task is to interpret the language actually used in the document having regard to

the historical realities and context surrounding the creation of the document in question.125

92. The trial judge was focused on intention and historical theory rather than on the language

used and the historical and contextual realities.

93. In adopting the expansionist theory of the appellants, the trial judge purported to apply a

purposive constitutional analysis. However the proper use of the purposive interpretative approach

requires balance and nuance. An overly generous approach risks expanding a constitutional

provision far beyond its intended purpose.126 This is particularly important when the interpretive

121 FCA Reasons supra note 7, paras 32-39, 119-120, 133, 135, Appellants' Record, Volume l, pp 195-198, 221, 224-226. 122 British Columbia (Attorney General) v Canada (Attorney General}, [1994] 2 SCR 41 at 88, 114 DLR (4th) 193 [BC (AG) v Can (AG)] per Iacobucci J; See also: Yellowknife Public Denominational District Education Authority v Northwest Territories (Local Authorities Election Act, Returning Officer), 2008 NWTCA 13 at para 63, 304 DLR (4th) 149 [Yellowknife]. 123 BC (AG) v Can (AG) supra note 122 at 88, quoting Edwards v Attorney General for Canada, [1930] I DLR 98 at 107 per Lord Sankey, [1930] AC 124 (PC). 124 Blais supra note 3 at para I 6. See also R v Mercure, [ 1988] l SCR 234 at 257 per La Forest J; ("[W]hile legislative history may be useful in providing the backdrop and assisting in determining the purpose of legislation, the interpretation of the statute must in this as in other contexts be determined by the words used by the legislature to convey its intent."), 48 DLR (4th) 1. 125 Blais supra note 3 at para 40. See also: Yellowknife supra note 122 at para 63. 126 See e.g.: R v Grant, 2009 SCC 32, (2009] 2 SCR 353 at para 17 per McLachlin CJ and Charron J.

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issue involves an historical agreement. In such a circumstance, the "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."127 Justice Binnie made this point particularly in R v

Marshall: "[g]enerous rules of interpretation should not be confused with a vague sense of after­

the-fact largesse."128

ii) Proper Analytical Framework

94. In Re Employment Insurance Act, this Court set out an analytical framework for

determining the scope of the various heads of power in ss. 91 and 92. First, a court must seek to

determine the pith and substance, or dominant characteristic, of the statute or provision at.issue

and then identify the head of power to which that characteristic is most closely related. 129 This

immediately illustrates one of the main difficulties in this case: the courts below performed their

analysis in a legislative vacuum, because no legislation has been put in issue.

95. In Re Employment Insurance Act, this Court cautioned that while the " ... debates or

correspondence relating to the constitutional amendment are relevant to the analysis as regards the

context, they are not conclusive as to the precise scope of the legislative competence. They reflect,

to a large extent, the society of the day, whereas the competence is essentially dynamic". 130

96. Similarly, this Court also noted that the "progressive" approach has its limits and cannot

be used to allow Parliament to encroach on a field of provincial jurisdiction. More relevant for this

appeal, it was noted that the court must refer to the framers' description of the power and must be

"guided" by the way in which the courts have interpreted it in the past:

The task of maintaining the balance between federal and provincial powers falls primarily to governments. If an issue comes before a court, the court must refer to the framers' description of the power in order to identify its essential components, and must be guided by the way in which courts have interpreted the power in the past. In this area, the meaning of the words used may be adapted to modem-day

127 Blais supra note 3 at para 40. 128 RvMarshall, [1999] 3 SCR456 at474, 177 DLR (4th) 513. 129 Re Employment Insurance Act supra note 71 at para 8. 130 Ibid at para 9.

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realities, in a manner consistent with the separation of powers of the executive, legislative and judicial branches. 131

97. The trial judge's analytical method (interchangeably described as a purposive or

progressive approach), rooted in the expansionist theory of the appellants, is not the proper

analytical tool for cases such as this one.

C. Trial Judge Erred by Adopting Expansionist Theory to Interpret Term "Indian"

i) Primary Structural Error in Interpretation of the Constitution

98. The primary structural error made by the trial judge in his assessment of the term "Indian"

in s. 91 (24) is his adoption of the expansionist theory of Confederation advanced by the appellants.

The Crown does not argue that the trial judge made a palpable and overriding error in his

assessment of the evidence. However, he did err in accepting the appellants' argument that the

evidence conclusively determined the issue of constitutional interpretation.

99. More specifically, the trial judge erroneously applied an analytical framework anchored in

the expansionist theory of the appellants' expe1is, rather than determining what the term "Indian"

meant at the time of Confederation.

100. The trial judge commenced his analysis with the clear and uncontroversial finding that

there is no evidence of any recorded discussion among the Framers of the Constitution as to what

was specifically meant by the inclusion of the term "Indians" ins. 91(24) of the Constitution Act,

1867.

[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 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.

131 Ibid at para 10.

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[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 P 2

101. A plain language approach to constitutional interpretation is the correct starting point. The

plain language approach does not require strict adherence to originalism. But it does require that

the term "Indian" be read in its proper constitutional, historical and jurisprudential context. This

is the appropriate approach. This is the approach adopted by this Court in Re Eskimo. 133

102. Rather than focus on the language used in s. 91 (24 ), the trial judge adopted the appellants'

expansionist theory of the purpose and object of Confederation and applied it to determine the

meaning of the word "Indian" ins. 91(24).

ii) Foundation of Expansionist Theory is in the Appellants' Terms of Reference to Experts

103. The expansionist theory is reflected in the trial judge's acceptance of the evidence of Dr.

Wicken that the "objects of Confederation were expansion, settlement, building a railway and

development of a national economy. " 134 Specifically, he accepted that a purpose of Confederation

was "[t]he expansion of British North America into the Northwest Territories and towards British

Columbia in response to the pre-Confederation economic and political crisis" .135 None of this is

particularly controversial as a general statement. It becomes controversial when it is applied to

determine the scope of the term "Indian" in s. 91 (24) of the Constitution Act, 1867.

104. The trial judge then adopted Dr. Wicken's theory that because of the expansionist purpose

or object of Confederation, the parallel purpose of s. 91(24) was to "control native people and

communities where necessary to facilitate development of the Dominion" and to "eventually

civilize and assimilate native people."136

105. Notwithstanding the obvious problem of using the term "native people" when s. 91(24)

refers specifically to "Indians", the trial judge said that "I accept these experts' opinions on the

t32 FC Reasons supra note 5 at paras 336-337, Appellants' Record, Volume 1, pp 92-93. 133 Re Eskimo supra note 54. 134 FC Reasons supra note 5 at para 340, Appellants' Record, Volume 1, p 94. 135 Ibid at para 341, Appellants' Record, Volume I, p 94. 136 Ibid at para 353, Appellants' Record, Volume l, pp 98-99.

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purposes of s 91(24) from the view point of those creating the power."137 In other words, he

accepted the appellants' expansionist theory and used it to interpret the word "Indian" ins. 91(24)

to include all Aboriginal peoples.

106. As set out in more detail below, this approach is not only at odds with settled constitutional

interpretive principles, it is also at odds with the factual, historical and constitutional findings of

this Court in Blais, Powley, Manitoba 1\4etis Federation and Cunningham. It is the failure of the

trial judge to recognize this flaw in the appellants' theory and his subsequent failure to adequately

address the previous decisions of this Court that is at the heart of the error made by the trial judge

and not corrected by the Court of Appeal.

107. The expansionist theory is circular. Its application to the term "Indian" ins. 91(24) is based

upon the assumption that the term "Indian" meant all "Aboriginal" peoples, or all "native" peoples

(Dr. Wicken and the trial judge used both terms). Thus the process used to answer the question

("What does the term 'Indian' mean?") simply assumes the answer ("It means all Aboriginal

people.").

108. The erroneous focus of the expansionist theory on the assumption that "Indian" meant all

Aboriginal peoples had to be "controlled" is rooted in the Terms of Reference in Dr. Wicken's

expert report In the first question, Dr. Wicken was asked by the appellants to identify the

"objectives and purposes" of the assignment of the "Indians and lands reserved for Indians" to

federal jurisdiction. The second question builds in the assumption that all Aboriginal peoples were

to be covered by the objects and purposes pf s. 91(24). It asked Dr. Wicken to "[d]escribe the

diversity of Aboriginal communities across Canada ... at the time of [C]onfederation" and set out

" ... [h]ow did the objectives and purposes of s.91(24) relate to these individuals and

communities?" 138

109. The focus on the expansionist theory was also evident in Dr. Wicken's oral testimony.

Even though at one point in his evidence, Dr. Wicken was asked what Sir John A. Macdonald

"meant" by "Indians, and Lands reserved for the Indians", his response was still based on the

137 Ibid at para 354, Appellants' Record, Volume 1, p 99. 138 Expert Report of William C. Wicken, December 1, 2010, p 2, Exhibit P252, Appellants' Record, Volume 66, p 6723.

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expansionist theory. The response was that " ... he [Macdonald] would say ... you had to control

the population, you had to pacify them, you had to assimilate them, you had to do all that was

necessary to ensure the orderly progression of expansion". 139

110. Therefore, rather than ask the fundamental question of what the term "Indian" meant at the

time of Confederation (the approach the trial judge seemingly started with but failed to pursue) the

questions in the Tenns of Reference assume from the outset that all Aboriginal peoples (the "them"

referred to above) are captured bys. 91(24). That assumption meant that the starting point of Dr.

Wicken's evidence was that "Indians" encompassed Metis in 1867. His evidence was simply

focused on supporting what has already been assumed in the questions asked of him.

11 L This is demonstrated by the way that Dr. Wicken expressed his Summary of Major

Conclusions and the terminology used throughout his report. He interchangeably used the terms

"Aboriginal people" and "Indian" to mean, and represent, the same people.

2. This report concludes that the framers of the BNA Act believed that a central government would need broad powers to deal with all situations that might emerge in its relations with the Aboriginal peoples in the new Dominion.

3. The objectives of s 91 (24) were to control aboriginal people and communities where necessary in order to facilitate development of the Dominion; to honour the obligations to aboriginal people and communities that the Dominion inherited from Great Britain, while extinguishing interest that stood in the way of development; and in the longer term, to civilize and assimilate aboriginal people and communities.

4. This assignation of responsibility to a central government was a natural outgrowth of the British government's control over Indian affairs from the mid­l 700s.

6. The experience of the United States in assigning responsibility of Indians to the federal government also served as a precedent for the framers of the BN A Act. 140

139 Examination of William C. Wicken, Trial Transcripts, Volume 10, page 1482, line 19 to page 1483, line 9, Appellants' Record, Volume 11, pp 140-141. 140 Expert Report of William C. Wicken, December 1, 20 l 0, page 3, Exhibit P252, Appellants' Record, Volume 66, p 6724.

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112. This easy movement between the terms "Indian" and "Aboriginal" demonstrates an

unstated assumption that the two terms were synonymous. But there is no evidence that the term

"Aboriginal" was used in 1867 to describe Inuit, Indian and Metis peoples. In contrast, there is no

question that the terms "Indian", "Metis" and "Eskimo" were commonly used and understood at

the time of Confederation. 141 It is hard to say with the certainty of Dr. Wicken and the appellants

that the term "Indian" was meant to cover all Aboriginal peoples when the term "Aboriginal

people" was not in common use at the time of Confederation, and in practice, Indians and Metis

were not considered or treated as a single group.

113. A further difficulty with the appellants' expansionist theory is that it does not take into

account the areas of Atlantic and Central Canada that were, for the most part, already settled and

established. The trial judge was very clear that Dr. Wicken was called to testify about the

Aboriginal history of Atlantic and Central Canada. 142 However, he was relied upon extensively by

the trial judge as a basis for the broad conclusion that Metis and non-status Indians are covered by

the term "Indian" ins. 91(24), notwithstanding the trial judge's own disclaimer that "[t]o the extent

that this Atlantic Canada experience influenced Atlantic Canada delegates, its relevance to the

issues before the Court is limited."143

iii) Application of Expansionist Theory Led to Misinterpretation of s. 91(24)

114. In particular in dealing with the issue of whether the term "Indian" in s. 91(24)

encompassed Metis, the trial judge erred in a fundamental way by ignoring this Court's decision

in Blais, where it was emphasized that the correct purposive analysis of a constitutional provision

must be anchored in " ... historical context, the ordinary meaning of the language used, and the

philosophy or objectives lying behind it."144 He focused on the appellants' expansionist purpose

theory and ignored the plain language of the Constitution.

141 See Exhibit D 189, "Select Committee on the Hudson's Bay Company" where the 1857 census categories included "Indian races", "Whites and Half-Breeds", and "Esquimeux", Appellants' Record, Volume 113, p 14956; see also Exhibit D 190, a colonial office report titled "The Inhabitants" with Part I entitled "Aborigines" and describing first "Esquimaux'', then the various tribes oflndians, and Part III entitled "Whites and halfbreds", Appellants' Record, Volume 113, pp 14957-14988 (specifically pp 14987-14988). 142 FC Reasons supra note 5 at paras 148-149, Appellants' Record, Volume 1, p 47. 143 Ibid at para 160 Appellants' Record, Volume 1, p 50. 144 Blais supra note 3 at para 18.

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115. As this Court explained in British Columbia (AG) v Canada (AG), it is the language of the

enactment and not the intention of the drafter that is of importance. 145 Although dealing with

statutory interpretation, the statement of Lord Nichols in Regina v Secretary of State for the

Environment, Transport and the Regions, Ex parte Spath Holme Ltd is helpful in considering the role

of courts in regard to the intent of the framers of the Constitution. He wrote:

... the 'intention of Parliament' is an objective concept, not subjective. The phrase is a shorthand reference to the intention which the court reasonably imputes to Parliament in respect of the language used. It is not the subjective intention of the minister or other persons who promoted the legislation. Nor is it the subjective intention of the draftsman, or of individual members or even of a majority of individual members of either House. These individuals will often have widely varying intentions. Their understanding of the legislation and the words used may be impressively complete or woefully inadequate. Thus, when courts say that such­and-such a meaning "carmot be what Parliament intended", they are saying only that the words under consideration carmot reasonably be taken as used by Parliament with that meaning. As Lord Reid said in Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591, 613: "We often say that we are looking for the intention of Parliament, but that is not quite accurate. We are seeking the meaning of the words which Parliament used."146

116. Similarly here, the focus should be on the meaning of the words used ins. 91(24) rather

than on attempting to divine the subjective intention of the framers. The word ''Indian" in 1867

had a clear meaning that did not include Metis. Instead of applying that meaning, the trial judge

imposed his own opinion about what he imagined the framers really must have meant. He failed

to look at the ordinary meaning of the word "Indian" in its historical context, and instead jumped

to the perceived objectives of Confederation as a whole as reflected in the expansionist theory of

the appellants.

iv) Trial Judge's Analytical Framework Unclear

117. The trial judge's adoption of the expansionist theory led to his confusion in defining exactly

what constitutional analytical framework he was using to determine the meaning of"Indians" and

145 BC (AG) v Can (AG), supra note 122 at para 88. 146 Regina v Secretaty of State for the Environment, Transport and the Regions, Ex parte Spath Holme Ltd, [2001] 2 AC 349 at 396-3 97, [200 I] I All ER 195 (HL ). Cited with approval in Felipa v Canada (Citizenship and Immigration), 2011 FCA 272 at para 31, 340 DLR (4th) 227, and in Attorney General of Canada et al. v Friends of the Wheat Board of Canada et al, 2012 FCA 183 at para 39, 352 DLR (4th) 163.

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"Metis". He identified a "purposive" or "living tree" approach to the constitutional interpretation

issues before him:

[538] I accept the Plaintiffs' submission that the purposive approach - the "living tree" doctrine - is the appropriate approach (see Reference re Same-Sex Marriage, 2004 SCC 79, [2004] 3 SCR 698). History helps to understand perspectives on the purpose but does not necessarily determine the purpose for all time. This is particularly the case with a constitution power which has, at some level, racial tones and which involved people who were seen in a light which today we would find offensive. Racial stereotyping is not a proper basis for constitutional interpretation.

[539] The Defendants' argument that the purpose of s 91(24) was to allow the federal government the power to protect Indians and their lands because Indians were viewed as childlike uncivilized people (the Defendants were clear that it did not endorse that view of the natives) ignores the far broader and more acceptable purposes for the s 91 (24) power. These include the acceptance of the Crown's responsibilities to natives, obligations under the Royal Proclamation of 1763, the need for coordinated approach to natives rather than the balkanized colonial regimes and the need to deal with the rapid and forcible expansion into the West including Euro-Canadian settlerµent and the building of the national railway. 147

118. However, the "purposive approach" used by the trial judge should not be confused with

the progressive interpretive principle. The progressive principle allows an articulation of the

division of powers that takes changing social realities into account. This Court's decision in Re

Same-Sex Marriage, 148 is a prime example of the application of the progressive principle. The

word "marriage" was interpreted to reflect an understanding of that term in the context of today's

society.

119. By contrast, what the trial judge did under the guise of a "purposive approach" was

speculate about the broader intentions of the framers of the Constitution in order to impose his

modern interpretation of the term "Indian" ins. 91(24), and consequently on the term "Metis",

rather than determine the usage or meaning at the time of Confederation as support for that

speculation. The solution to the problems that beset many Aboriginal peoples today is not found

in the retroactive application of a contemporary understanding of the term "Indian'' on the

interpretation of s. 91 (24).

147 FC Reasons supra note 5 at paras 538-539, Appellants' Record, Volume 1, pp 151-152. 148 Re Same Sex Marriage supra note 74.

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120. What was argued in Re Same-Sex Marriage was that because society has changed since

1867, the conceptions that the framers of the Constitution Act, 1867 had about the meaning of

marriage ought not to govern how Parliament may define marriage in today's changed world. This

Court noted that division of powers provisions must "continually adapt to cover new realities.''149

121. That does not apply here. The appellants do not contend that there are "new realities" that

require the term Metis to be redefined so as to make the Metis part of a group which they were not

part of in 1867 or in 1982 and are not part of now.

122. The development and application of the expansionist theory of Confederation is the prime

example of the misapplication of the purposive approach by the trial judge. He accepted the

appellants' approach which started from the conclusion that Metis were "Indians" for the purposes

of s. 91(24) of the Constitution Act, 1867 and the broader expansionist purpose of Confederation

itself. For that theory to work all Aboriginal peoples had to be dealt with under the term "Indian".

Therefore the expansionist theory must mean that Indians includes all Aboriginal peoples.

123. The application of the expansionist theory under the rubric of a purposive approach t~

constitutional interpretation is the antithesis of the correct approach which requires due

consideration of the historical context surrounding the term ."Indian" in 1867.

v) Court of Appeal Failed to Correct Erroneous Approach of Trial Judge

124. The Court of Appeal identified the confusion of the trial judge in relation to the use of the

"progressive" and "purposive" analytical approaches to interpreting the Constitution.

[130] At paragraph 538 of his reasons, the Judge accepted "that the purposive approach - the 'living tree' doctrine is the appropriate approach". This is one source of confusion because the living tree doctrine is an expression of the progressive, not purposive, approach to interpretation.

[ 131] Notwithstanding, the Judge's reasons evidence a decidedly purposive approach to the interpretive exercise.150

t49 Ibid at para 30. 15° FCA Reasons supra note 7 at paras 130, 131, Appellants' Record Volume l, p 224.

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125. Rather than accepting that the words of the trial judge actually reflect what he meant, the

Court of Appeal substituted its own view of what analytical framework (progressive) the trial judge

really meant to apply.

126. This revisionist approach to what the words of the trial judge really meant indicates that

the Court of Appeal found an error in what the trial judge did, but wanted to come to the same

result regardless of the error. The reasons of the Court of Appeal show a tendency to re-interpret

the clear words of the trial judge. As set out below, the most obvious example is the Court of

Appeal's restatement of what the trial judge meant to say when he tried to define the term Metis.

127. Rather than resolve the confusion of which interpretive approach was taken by the trial

judge, and whether it was correct, the statements by the Court of Appeal compounded the problem

as to which constitutional interpretive principles were used, and which should have been used. The

confusion continued in paragraphs 134 and 136 of the Court of Appeal decision, where it

seemingly used the terms "progressive" and "purposive" interchangeably.

128. Finally, in paragraph 148 of its decision the Court of Appeal returned to the

progressive/purposive discussion and determined that:

[148] [i]n the result, there is ample evidence to support the view that Metis were considered within section 91(24) at the time of Confederation. A progressive interpretation was, therefore, unnecessary, and the Judge did not err by failing to address the social changes that would underlie such an interpretation. 151

129. The interpretive waters are muddied further because after disavowing the use of the

progressive interpretive principle by the trial judge, the Court of Appeal then referred to this

Court's decision in Re Employment Insurance Act, 152 a progressive interpretation case, as setting

out the principles to be applied when considering the scope of powers assigned by the Constitution

Act, 1867.153

130. In the end, both the trial judge and the Court of Appeal appear to have used a hybrid

constitutional approach in this matter: a stated purposive approach (if the Court of Appeal's re-

151 Ibid at paras 130, 131, Appellants' Record Volume 1, p 230. 152 Re Employment Insurance Act supra note 71. 153 FCA Reasons supra note 7 at para 129, Appellants' Record, Volume 1, p 224.

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statement of the trial judge's approach is accepted) with an overlay of elements of the progressive

approach. The result is an undisciplined and unsatisfactory analytical framework.

vi) Findings of Fact Not Helpful in Supporting the Trial Judge's Decision

131. The Court of Appeal also rooted its conclusion that the trial judge did not err in his

approach to constitutional analysis primarily in its deference to the trial judge's findings of fact. 154

However, such deference is misguided when the issue is whether the trial judge adopted and

properly applied the proper constitutional analytical framework. Findings of fact cannot

rehabilitate a mistaken constitutional analysis.

132. That said, the findings of fact by the trial judge do not have to be overturned. What needs

to be addressed is the Court of Appeal's interpretation of those facts and its view that they support

the trial judge's conclusions that "Indian" ins. 91(24) included Metis. For example, the findings

cited in paragraph 133 of the Court of Appeal's decision are not determinative of the issue. Many

of the examples cite the need to deal with "native people", an undefined term and one not used in

s. 91(24). Perhaps more critically, many of the examples of "facts" are simply a reiteration of the

expansionist theory put forth by the appellants.

133. The examples provided at paragraph 135 of the Court of Appeal's reasons are in a similar

vein. They are either expressions of the expansionist theory or discrete examples of Metis who

were living as "Indians" i.e. on a reserve or in accordance with a treaty. 155

134. What is missing is a repudiation of the clear evidence that at the time of Confederation the

Metis were seen as a distinct and separate Aboriginal people. 156

154 Ibid at paras 127-148 (in particular paras 133, 135), Appellants' Record, Volume 1, pp 223-230. 155 FCA Reasons ibid at para 135, Appellants' Record, Volume l, pp 225-226; FC Reasons supra note 5 at paras 412, 420, 424, 430, 434, 437, 439, 441, 444, 446, 447, Appellants Record, Volume 1, pp 116, 120, 121, 122, 123, 124, 125 126. 156 Metis considered themselves distinct from Indians, see Exhibit D24 l, "Canada's Founding Debates", Appellants' Record, Volume 116, pp 15430-15438 (specifically, pp 15436-15437), Exhibit D242, "List of Rights", Appellants' Record, Volume 116, p 15439; and Exhibit D243, "Manitoba: The Birth ofa Province", Appellants' Record, Volume 116, pp 15440-15457 (specifically pp 15443-15445); Canada treated Indians and "half-breeds" differently by excluding "half-breeds" from receiving presents, see Exhibits Dl 93, D 194, D 197, D 198, Appellants' Record, Volume 113, pp 15019, 15020, 15044-15046, 15047-15048; see also Exhibit P240, Appellants' Record, Volume 60, pp 5749, 5757; Canada distinguished Indians, from "half-breeds", see Exhibit D189, "Select Committee on the Hudson's Bay Company" where the 1857 census categories included "Indian races", "Whites and

36

135. Moreover, as explained more fully below, the findings of fact of the trial judge are in direct

contrast to findings of fact and conclusions of law made by this Court.

136. Finally, the Court of Appeal supported the trial judge's decision by reviewing various

pieces of legislation that could "reasonably be read to have included the Metis". 157 This is not an

exercise in determining facts but merely the interpretation of legislation. There is no reason why

the Housen 158 palpable and overriding error standard needs to be applied to the interpretation of

legislation. This Court is in as good a position as the courts below to read the legislation and apply

it in this case. This Court's caution in Carter that a trial judge should be accorded deference in

relation to findings on social and legislative facts does not come into play as there is no challenge

to the legislative facts in this case. There is only a discussion of the application of former legislation

in the context of a constitutional interpretation exercise. 159

137. The Secretmy of State Act160 simply includes a provision that deems certain classes of

persons to be "Indians", including all persons residing among Indians. 161 It is hard to see how this

is evidence that "Indians" under s. 91(24) of the Constitution Act, 1867 included Metis. First, the

deeming provision is a legislative act. Much as with the Indian Act of today, Parliament was

entitled to determine which persons would be considered Indians for the purpose of that legislative

scheme. If the term "Indian" under s. 91(24) was commonly understood to include Metis there

would be no reason to deem other persons to be Indians for purposes of the legislation. Second, by

its own terms, the statute only includes those persons who lived among Indians. Given that the

Half-Breeds", and "Esquimeux", Appellants' Record, Volume 113, p 14956; also see Exhibit D 190, a colonial office report titled "The Inhabitants" with Part I entitled "Aborigines" and describing first "Esquimaux", then the various tribes ofindians, and Part III entitled "Whites and halfbreds", Appellants' Record, Volume 113, pp 14957-14988 (specifically pp 14987-14988); Parliamentarians distinguished between Indians and half-breeds, see Exhibit P242, pp 1302 and 1306, 1329-1330, "Commons Debates" of May 2, 1870, where John A. Macdonald and Alexander Mackenzie distinguish between half-breeds and Indians, Appellants' Record, Volume 63, pp 6184-6264 (specifically pp 6189, 6200-6201), and see Exhibit P348, p 3113, "Commons Debates" of July 6, 1885, Appellants' Record, Volume 88, p 10374; Bishop Tache identified three different classes of people in "Sketch of the North­west of America": foreigners, half-breeds, and Indians, see Exhibit D 191, Appellants' Record, Volume 113, pp; 14989-15015; Indian tribes distinguished between Indians and half-breeds and sought to narrow the definition ofindian to exclude white men and their Indian wives and offspring of males of mixed ancestry if the offspring choose to marry out, see Exhibit D204, Appellants' Record, Volume 114, pp 15161-15164. 157 FCA Reasons supra note 7 at para 138, Appellants' Record, Volume 1, p 227. 158 Housen v Nikolaisen, 2002 SCC 33, [2002] 2 SCR 235, at paras 8-37 [Housen]. 159 Carter v Attorney General of Canada, 2015 SCC 5 at para 109 [Carter]. 160 An Act providing for the organisation of the Department of the Secretary of State of Canada, and for the management of Indian and Ordnance Lands, SC 1868, c 42, s 15. [Secretary of State Act]. 161 FCA Reasons supra note 7 at paras 139-140, Appellants' Record, Volume l, p 227.

37

subject matter of the legislation included the administration of lands reserved for Indians, it was

reasonable and necessary to make all persons living with Indians on Indian land subject to the

same legislation.

138. Similarly, the Indian Affairs Act162 of 1869 and the Act to amend "The Indian Act,

1876", 163 are examples of Parliament defining who is an Indian for specific legislative purposes. 164

Both are very clear about which half-breeds (not all) are included as being subject to the legislation.

It is difficult to see how this is definitive legislative evidence that the framers of Confederation in

1867 intended "Indians" to include Metis. If that were the clear intention of the framers, it would

have been completely unnecessary to specifically identify some people of mixed ancestry as

Indians in legislation. Parliament has never passed legislation aimed at the Metis as a distinct

Aboriginal collective.

139. Finally, the Court of Appeal concluded thats. 35 of the Constitution Act, 1982 confirms

that Metis are to be included under Indians ins. 91(24).

[146] Tellingly, counsel for the appellants also conceded that it would be anomalous for the Metis to be included as Aboriginal peoples for the purpose of section 35 of the Charter, and to be the only enumerated Aboriginal peoples not included within section 91(24).

[147] This anomaly disappears when section 91(24) is interpreted to have included the Metis from the time of Confederation. 165

140. The concession of the Attorney General (if it can be called that) simply describes the state of

the two sections of the Constitution at the time they were enacted. That the Metis were formally

recognized by s. 35 of the Constitution Act, 1982, does not lead to the conclusion that "Indian" in s.

91 (24) included Metis. If anything, the formal recognition of the Metis as a separate Aboriginal people

ins. 35 simply recognizes a fact that had existed for centuries.

vii) Erroneous Focus on People and Circumstances, not Powers

162 An Act for the gradual enfranchisement of Indians, the better management of Indian Affairs and to extend the provisions of the Act, 3 l51 Viet, c 42, SC 1869, c 6, s 4 [Indian Affairs Act]. 163 An Act to amend and consolidate the laws respecting Indians, SC 1876, c 18, s 3 [The Indian Act, 1876]. 164 FCA Reasons supra note 7 at paras 142-143, Appellants' Record, Volume 1, pp 228-229. 165 Ibid at paras 146-147, Appellants' Record, Volume 1, pp 229-230.

38

141. A further structural error of the trial judge was his focus on various "peoples" and their

individual or collective circumstances rather than on what powers Parliament has under s.

91(24). 166 This is highlighted by his finding that, in particular in the Atlantic region, most of the

local '"Indian" population "was of mixed blood of varying degrees" 167 by 1867 and consequently,

that the "evidence establishes the diversity of people and degree of aboriginal connection which

fell under the word "Indian". 168

142. The influence of Dr. Wicken in these findings is made clear in the trial judge's reasons. 169

First, he accepted Dr. Wicken's view "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."170 Ms. Jones agreed that there " ... was a general

understanding that 'Indian' included those with native blood and those intermarried with natives". 171

143. The conclusion that "mixed blood" broadened what was meant by the term "Indian" in the

Constitution is directly contrary to what this Court said in Powley where it was found that sharing

of customs, or mixed blood between Indians and Metis, did not mean the Metis were Indians. 172

Clearly, legislation enacted by Parliament under s. 91(24) can apply to some individual people of

mixed ancestry, including some individual Metis people. However, this does not mean that the

Metis, an entirely distinct Aboriginal people, are Indians.

144. Finally, and perhaps most telling, is the trial judge's acceptance that Dr. Wicken and Ms.

Jones opined that the framers of the Constitution were creating constitutional powers that were

broader than the statutory definition of"Indian". 173 Although the trial judge quickly noted that it was

up to him to decide the law, 174 the expansionist theory proposed by Dr. Wicken and Ms. Jones was

166 FC Reasons supra note 5 at paras 191, 193, 194, 197, 224, 231, 247, 250, 254, 380(h), 381, Appellants' Record, Volume 1, pp 58-59, 60, 66, 67, 70, 71, 72, 106-107, 108. 167 Ibid para 216, Appellants' Record, Volume 1, p 64. 168 Ibid para 218, Appellants' Record, Volume l, p 64. 169 Ibid paras 151, 218, 273, 317, 318, Appellants' Record, Volume 1, pp 47-48, 64, 76, 88. 170 Ibid at para 319 Appellants' Record, Volume l, p 89. 171 Ibid at para 320 Appellants' Record, Volume 1, p 89. 172 Powley supra note 3 at paras l 0, 38. 173 FC Reasons supra note 5 at para 322 Appellants' Record, Volume 1, p 89. 174 Ibid at para 323 Appellants' Record, Volume 1, p 90.

39

unquestionably the backbone of his decision to include Metis and non-status Indians in the term

"Indians" ins. 91(24) and is based on a purposive constitutional approach.

PART IV-SUBMISSION ON COSTS

145. The Attorney General of Canada acknowledges that by order dated April 22, 2015, this

Court has already awarded the appellants their costs of this appeal in any event of the cause. The

Attorney General does not seek costs and submits that no additional costs should be awarded

against him.

PARTY- ORDER SOUGHT

146. The appeal should be dismissed.

DATED at Ottawa, Ontario, this 22nd day of May, 2015.

Counsel for the federal Crown Respondents

40

PART VI-TABLE OF AUTHORITIES.

Statutes & Regulations Paragraph reference

An Act for the gradual enfranchisement of Indians, the better management of 138 Indian Affairs and to extend the provisions of the Act, 31st Viet, c 42, SC 1869, c 6.

An Act providing for the organisation of the Department of the Secretary of 137 State of Canada, and for the management of Indian and Ordnance Lands, SC 1868, c 42.

An Act to amend and consolidate the laws respecting Indians, SC 1876, c 18. 138

Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 84 1982, c 11, Part I.

Indian Act, RSC 1985, c-I-5. 44, 45, 52, 53, 67, 74, 78, 137

Interpretation Act, RSC 1985, c I-21. 68

Jurisprudence Paragraph reference

AG Canada v Canard, [1976] 1 SCR 170, 52 DLR (3d) 548. 73

AG Quebec v Labrecque, [1980] 2 SCR 1057, 125 DLR (3d) 545. Preamble to Part III

Alberta (Aboriginal Affairs and Northern Development) v Cunningham, 88, 106 2011 sec 37, (2011] 2 scR 670.

Attorney General of Canada et al. v Friends of the Wheat Board of Canada et 115 al, 2012FCA183, 352DLR(4th)163.

Borowski v Canada (A.G.), [1989]1 SCR 342, 57 DLR (4th) 231. 51

British Columbia (Attorney General) v Canada (Attorney General), [1994] 2 90, 115 SCR 41, 114 DLR (4th) 193.

Carter v Canada (Attorney General), 2015 SCC 5. 136

41

Doucet-Boudreau v Nova Scotia (Minister of Education), 2003 SCC 62, 46 [2003] 3 SCR 3.

Felipa v Canada (Citizenship and Immigration), 2011 FCA 272, 340 DLR 115 (4th) 227.

Grassy Narrows First Nation v Ontario (Natural Resources), 2014 SCC 48, 83 [2014] 2 SCR 447.

Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73, [2004] 63 3 SCR51L

Housen v Nikolaisen, 2002 SCC 33, [2002] 2 SCR 235. 136

In the Matter of a Reference as to Whether the Term "Indians" in Head 24 101 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.

Manitoba Metis Federation Inc. v Canada (Attorney General), 2013 SCC 14, 48, 49, 58, 88, [2013] 1 SCR 623. 106

Natural Parents v Superintendent of Child Welfare, [1976] 2 SCR 751, 60 73 DLR (3d) 148.

Operation Dismantle v The Queen, [1985] 1SCR441,18 DLR (4t11) 481. 78

Peel (Regional Municipality) v Canada, [1992] 3 SCR 762, 98 DLR (4th) 68 140.

Quebec (Attorney General) v Moses, 2010 SCC 17, [2010] 1 SCR 557. 83

Quebec (Attorney General) v Canada (Attorney General), 2015 SCC 14. 85

Re B. C. Motor Vehicle Act, [1985] 2 SCR 486, 24 DLR (4th) 536. 72

Reference Re Canada Assistance Plan (B.C.), [1991] 2 SCR 525, 83 DLR 46,47,68,69 (4th) 297.

Reference re Employment Insurance Act (Canada), 2005 SCC 56, [2005] 2 46, 94, 95, 96, SCR669. 129

Reference re Same-Sex Marriage, 2004 SCC 79, [2004] 3 SCR 698. 47, 118, 120

Reference re Secession of Quebec, [1998] 2 SCR 217, 161 DLR (4th) 385. 47

R v Blais, 2003 sec 44, [2003] 2 SCR 236. 88, 91, 93, 106, 114

42

R v Grant, 2009 SCC 32, [2009] 2 SCR 353. 93

R v Marshall, [1999] 3 SCR 456, 177 DLR (4th) 513. 93

R v Mercure, [ 1988] 1 SCR 234, 48 DLR (4th) 1. 91

R v Powley, 2003 SCC 43, [2003] 2 SCR 207. 88, 106, 143

Regina v Secretary of State for the Environment, Transport and the Regions, Ex 115 parte Spath Holme Ltd, [2001] 2 AC 349, [2001] 1 All ER 195 (HL).

Rio Tinto A/can Inc. v Carrier Sekani Tribal Council, 2010 SCC 43, [2010] 63 2 SCR 650.

Solosky v Her Majesty the Queen [1980] 1SCR821, 105 DLR (3d) 745. 78

Taku River Tlingit First Nation v British Columbia (Project Assessment 63 Director), 2004 SCC 74, [2004] 3 SCR 550.

Tsilhqot'in Nation v British Columbia, 2014 SCC 44, [2014] 2 SCR 256. 83

Wewaykum Indian Band v Canada, 2002 SCC 79, [2002] 4 SCR 245. 57

Yellowknife Public Denominational District Education Authority v 90,91 Northwest Territories (Local Authorities Election Act, Returning Officer), 2008 NWTCA 13, 304 DLR (4th) 149.

YMHA Jewish Community Centre of Winnipeg Inc. v Brown, [1989] 1 SCR 69 1532, 59 DLR (4th) 694.

Publications Pamgrap/1 reference

Peter W. Hogg, Constitutional Law of Canada, 3rd ed (Toronto: Carswell, 69 1992).

43

PART VII - STATUTES

Statutes at Issue Paragraph reference

Constitution Act, 1867, (UK), 30 & 31 Viet, c 3, reprinted in RSC 1985, 41, 42, 46, 66, Appendix II, No 5, ss 91, 92. 67, 69, 73, 74,

80, 81, 83, 85, 86, 87, 88, 94, 98, 100, 102,

103, 104, 105, 107, 108, 110, 113, 114, 116, 119, 120, 122, 129, 132, 137, 139, 140, 141,

143, 144

Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 82, 83, 139, 1982, c 11, s 35. 140

44

FACTUM OF APPELLANTS ON CROSS-APPEAL

PART I-STATEMENT OF FACTS

I. Overview

147. The Crown's cross-appeal focuses on the trial judge's definitions of "Indian" and "Metis"

and his failure (and the failure of the Court of Appeal) to take into account the jurisprudence of

this Court which has consistently and clearly held that the Metis are not Indians, but rather are a

separate and distinct Aboriginal people. The facts in support of the cross-appeal are generally set

out in Part I of the Crown's response to the appeal facturn.

PART II - POINTS IN ISSUE

148. The issue on the cross-appeal is whether the courts below erred in declaring that the Metis

are "Indians" as set out ins. 91(24) of the Constitution Act, 1867.

PART-III ARGUMENT

II. The Erroneous Division of Powers Analysis Led Trial Judge to Unsustainable Determination Concerning Metis and Indians

149. The trial judge's definition of "Metis" was central to his finding that the Metis fell within

the term "Indian" in s. 91 (24) of the Constitution and therefore under the jurisdiction of the federal

Crown. He held thats. 91(24) allows the federal Crown to legislate "in relation to people who are

defined, at least in a significant way, by their native heredity" and that "the factor which

distinguishes both non-status Indians and Metis from the rest of Canadians ... is that native

heritage - their Indian(n)ess". 175

A. Trial Judge's Defmition of "Indian"

150. The trial judge accepted the view of the appellants, that the term "Indian" in s. 91(24)

would have been understood by the framers of the Constitution to mean "people of Aboriginal or

175 FC Reasons supra note 5 at para 544, Appellants' Record, Volume l, p 153.

45

native ancestry". 176 This broad definition was based on the appellants' purposive interpretation of

the Constitution thats. 91(24) should be read in light of the expansionist theory of Confederation.

Because he accepted the expansionist theory, the trial judge found that the purpose of s. 91(24)

and the term ''Indian", broadly defined, was to "deal with the diversity and complexity of the native

population" in what is now Western Canada, a purpose which, he concluded, required federal

jurisdiction over all Aboriginal peoples including the Metis. 177

151. This view of who were "Indians" was necessary for the implementation of the expansionist

theory that the trial judge relied on to group all Aboriginal peoples under s. 91(24), but it is an

awkward fit with the text and context of the Constitution.

152. In the period of treaty-making that followed Confederation, the federal government

exercised plenary legislative and executive authority over the North-West Territories, which

extended from the Lakehead to the watershed of the Rocky Mountains. 178 It is fallacious to assume

that a broad reading of •'Indian" in s. 91(24) was necessary so that Canada could deal with the

"diversity and complexity" of the Aboriginal population in the West. Canada had that authority

quite apart from s. 91(24). As the Privy Council noted in 1888, the purpose of s. 91(24) was "to

ensure uniformity of administration" in Indian affairs. 179

153. The appellants argue that there was confusion as to who would qualify for Metis land

grants, and that the practice of issuing land scrip to Metis people in Manitoba and the North-West

simply confirms that there was a general intermingling of Metis and Indians, with some receiving

scrip and others receiving reserve land. However, that contention does not deal with the clear

words of the Constitution. The fact that non-Indians may have been living on land reserved for

Indians does not alter the fact that it was for Indians that the land was reserved, and that the Metis

are not Indians.

B. Trial Judge's Definition of Metis

176 Ibid at para 555, Appellants' Record, Volume 1, p 156. 177 Ibid at para 273, Appellants' Record, Volume l, p 76. 178 Rupert's Land Act, I 868, 31-32 Viet, c 105 (UK), reprinted in RSC 1985, Appendix 11, No 6; Temporary Government of Rupert's Land Act, 1869, 32-33 Viet, c 3 (Can), reprinted in RSC 1985, Appendix II, No 7; Rupert's Land and North-Western Territory Order, reprinted in RSC 1985, Appendix II, No 9; Constitution Act, I 87 I, 34-35 Viet, c 28 (UK), reprinted in RSC 1985, Appendix II, No 11; Territorial Evolution Map, 1870, NRCAN, Exhibit D307, Appellants' Record, Volume 119, p 16097. 179 St Catherine's Milling & Lumber Co. v. The Queen (1888), 14 App Cas 46 at 59 (PC).

46

154. The difficulties inherent in the trial judge's dete1mination that Metis are "Indians" under s.

91(24) are demonstrated by the lengths the Court of Appeal had to go to support that finding. The

Court of Appeal extensively re-wrote and re-fashioned the reasons of the trial judge in order to

support his conclusion. However, in doing so, the Court of Appeal actually provided support for

the conclusion that the Metis are, and were at the time of Confederation, an Aboriginal people

distinct and separate from "Indians."

155. First, the Court of Appeal accepted that it had to combine two separate paragraphs of the

trial judge's reasons (paragraphs 117 and 130)180 to arrive at what it said was his definition of

Metis. The trial judge's definition of Metis, as described by the Court of Appeal, identified the

Metis as "a group of native people who maintained a strong affinity for their Indian heritage

without possessing Indian status. Their 'Indianness' was based on self identification and group

recognition." 181

156. That definition is vague and ultimately unworkable. As the Court of Appeal acknowledged,

there are three possible interpretations of the trial judge's definition of Metis:

[89] The first potential interpretation is that "Indian heritage" meant descent from members of the "Indian race".

[90] The second potential interpretation is that advanced by the appellants: the Judge equated "Indian heritage" with "First Nations heritage". If that is what the Judge meant, it is, in my view, contrary to history and the jurisprudence of the Supreme Court and must be rejected.

[91] The third potential interpretation is that by using the phrase "Indian heritage" the Judge meant to refer to indigenousness or Aboriginal heritage; broader concepts than First Nations heritage. 182

157. The analysis of the Court of Appeal also contains the very candid admission that the

definition of Metis found by the trial judge is " ... problematic. It lacks clarity and is open to at

least three interpretations, one of which I believe is contrary to history and the jurisprudence of

the Supreme Court". 183

18° FC Reasons supra note 5 at paras 117, 130, Appellants' Record, Volume 1, pp 38-39, 42. 181 FCA Reasons supra note 7 at para 84, Appellants' Record, Volume 1, pp 213-214. 182 Ibid at paras 89-91, Appellants' Record, Volume I, p 215. 183 Ibid at para 88, Appellants' Record, Volume I, p 214.

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158. Normally such a description of a trial judge's findings on a crucial aspect of a case would

be fatal to that decision. However, rather than simply accept that the trial judge had made serious

and irredeemable errors in his definition of "Metis", the Court of Appeal engaged in a detailed

rehabilitation of the trial judge's conclusion. In doing so, the Court of Appeal simply substituted

its view of the evidence, facts and law for those of the trial judge. Aside from a superficial

endorsement of the trial judge's ultimate conclusion, the Court of Appeal gave little true deference,

in the sense of Housen, 184 to the trial judge's findings.

i) First Possible Interpretation of the Trial Judge's Definition of Metis

159. The first potential interpretation of the trial judge's definition ofMetis was that "Indian

heritage" meant descent from members of the "Indian race". The Court of Appeal rejected this

interpretation. 185 However, in doing so the Court of Appeal acknowledged that this Court in

Canard viewed s. 91(24) to be "a race-based head of power" and that the use of the word "Indians"

ins. 91(24) created a racial classification. 186

160. To avoid Canard and to distinguish this potential interpretation of the trial judge's

definition of Metis, the Court of Appeal relied on this Court's decision in Re Same-Sex Marriage

and on the living tree analogy of the Constitution in support of a progressive interpretation that

"accommodates and addresses the realities of modem life". 187

161. In the end the Court of Appeal completely disavowed any of the interpretations of the trial

judge's definition and instead accepted a definition proposed by the intervener Metis Nation of

Ontario that embraced a progressive interpretation of s. 91(24). That definition of Metis was set

out as meaning more than simply a connection to Indian ancestors. It included the stipulation that

the Metis have their own culture, kinship, connections and territory. 188

162. Not only does this analysis undermine the trial judge's findings and definition ofMetis, it

actually supports the conclusion that the Metis are a separate Aboriginal people who are not

Indians. Moreover, despite being labelled as a "progressive interpretation", the definition adopted

184 Housen supra note 158. 185 FCA Reasons supra note 7 at para 92, Appellants' Record, Volume 1, p 215. 186 Ibid at para 94, Appellants' Record, Volume l, p 215. 187 Ibid at para 95, Appellants' Record, Volume l, pp 215-216. 188 Ibid at para 96, Appellants' Record, Volume 1, p 216.

48

by the Court of Appeal simply reflects the historical reality of the Metis as a distinct and separate

people well before Confederation in 1867.

163. In its analysis, the Court of Appeal relied primarily on this Court's decision in Powley for

the proposition that the term Metis did not encompass all persons of mixed European and Indian

heritage, but instead referred to "a distinctive group of people who developed separate and distinct

identities."189 This is completely opposite to the approach taken by the appellants and their experts,

who argued that it was virtually impossible to identify Metis as a distinct group and that there was

very little to separate Indians and Metis, so that they all must have been thought of as being Indians

at the time of Confederation. 190

164. It is hard to see how the reasoning of the Court of Appeal supports the trial judge's

definition of Metis, or ultimately how it supports the appellants' view of how that term should be

defined in the context of s. 91(24). The Court of Appeal concluded this part of its analysis by

suggesting that the criteria set out by this Court in Powley (self-identification, ancestral connection

and community acceptance) 191 were inconsistent with a race-based identification of the Metis.

Although the Court of Appeal found that this analysis precluded a race-based interpretation of the

term Metis, it, at the same time, bolstered the Crown's view that the Metis are a distinct people

separate and apart from Indians.

ii) Court of Appeal Erred by Combining Second and Third Possible Interpretation of the Trial Judge's Definition of Metis

165. The Court of Appeal found that the second possible interpretation of the trial judge's

interpretation of Metis was simply contrary to history and this Court's jurisprudence. Rather than

accept that the trial judge was in error, the Court of Appeal sought to rehabilitate the trial judge's

findings by recasting what he "really meant" to say as being reflected by the third possible

interpretation.

166. The Court of Appeal concluded that "read fairly" the trial judge did not mean to equate

"Indian heritage" with "First Nations heritage" but instead meant to equate it with "indigenousness

189 Ibid at para 97, Appellants' Record, Volume J, p 216. 19° FC Reasons supra note 5 at paras 263, 267, 308, 369, 376, 381, 524, 594, Appellants' Record Volume l, pp 74, 75, 86, 103, 105, 108, 146, 167. 191 FCA Reasons supra note 7 at para 97, Appellants' Record, Volume 1, p 216; Powley supra note 3 at paras 31-33.

49

or Aboriginal heritage". 192 On its face, this is a difficult conclusion to reach since the words used

by the trial judge at paragraph 117 of his reasons clearly link '"native people" and a strong affinity

for "Indian heritage" to "[t]heir Indianness". 193

167. The second interpretation is problematic for the appellants because it would clearly link

the term "Indians" in s. 91 (24) with First Nations rather than with the broader concept of

Aboriginal peoples, thus undermining their theory that "Indians" was meant to encompass all

Aboriginal peoples and not just First Nations.

168. The Court of Appeal was attuned to the problems the plain words of the trial judge would

cause. Otherwise there would have been no basis for the Court of Appeal to re-write the definition

to say what the trial judge really "meant". After a review of portions of the trial judge's reasons,

which it identified as expressing what the trial judge really intended, the Court of Appeal

formulated a revised interpretation of the trial judge's definition:

[108] Having concluded that the Judge meant Indian heritage to mean indigenousness or Aboriginal heritage, and considering the definition given by the Judge at paragraph 117 of his reasons, it follows that the Judge considered the Metis to be a group of native or Aboriginal people who maintain a strong affmity for their Aboriginal heritage or indigenousness without possessing Indian status. The Metis Aboriginal heritage or indigenousness is based upon self-identification and group recognition as Metis, not First Nations. It follows from this that the Judge recognized the Metis to be a distinct people.

[109] Properly understood, the Judge's conception of the Metis was not contrary to history or the decisions of the Supreme Court in Powley, Cunningham or Manitoba Metis Federation. 194

169. The Court of Appeal may well have had an opinion about what the trial judge meant to say

- or in its view, should have said - but it is not what he wrote. By re-writing the trial judge's

definition the Court of Appeal showed no deference at all to his decision.

170. The Court of Appeal considered that the trial judge's "conception" of Metis (presumably

as reformulated by it) was not contrary to history or to the decisions of this Court in Powley,

Cunningham and Manitoba Metis Federation. 195 The Court of Appeal then expanded this

192 FCA Reasons supra note 7 at para 100 Appellants' Record, Volume l, p 217 193 FC Reasons supra note 5 at para 117, Appellants' Record, Volume 1, pp 38-39. 194 FCA Reasons supra note 7 at paras 108-109, Appellants' Record, Volume I, pp 218-219. 195 Ibid at para 109, Appellants' Record, Volume 1, p 219.

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conclusion to say that it was sufficient simply to define Metis in a manner that does not contradict

"history" or the jurisprudence of this Court. 196 However, as detailed below, that is exactly what

the trial judge's determination amounts to: a repudiation of history and the legal and factual

determinations made by this court, and the courts below, in those cases.

III. Erroneous Interpretation of Jurisprudence of this Court

A. Stare Decisis and the Need for Consistency in Identifying the Metis People

171. The courts below were, of course, not strictly bound by the previous decisions of this Court

in Blais, Powley, Cunningham and Manitoba Metis Federation concerning the status of the Metis

people as a separate and independent Aboriginal people. Even if it were argued in this case (and it

is not) that strict adhesion to stare decisis is required in this matter, the decision of this Court in

Carter197 reiterated that there can be circumstances that allow courts to depart from previous

authority. However, that does not mean that these decisions can be ignored.

172. What is relevant is the failure of the courts below to be guided, in any meaningful way, by

this Court's previous decisions and to provide consistency in the manner in which Metis are

identified and defined in relation to the Constitution and to other Aboriginal peoples. As discussed

in detail below, this Court has clearly and unequivocally found that the Metis were an independent

and separate Aboriginal People at and before the time of Confederation. Consistency and stability

in relation to that historical and constitutional fact is required.

173. Although the provision of the Constitution at issue in this matter, s. 91(24) of the

Constitution Act, 1867, is different from that at issue in Blais (s. 13 of the Natural Resources

Transfer Agreement198) or Powley (s. 35 of the Constitution Act, 1982), the baseline issue of who

the Metis people are and how are they to be defined in a broad historical context has not changed.

174. This Court clearly and definitively found that the Metis have been an Aboriginal people

separate and distinct from other Aboriginal peoples (Indian and Inuit) for centuries and well before

196 Ibid at para 111, Appellants' Record, Volume 1, p 219. 197 Carter supra note 159 at para 44. 198 Constitution Act, 1930, (UK), 20 &21 Geo V, c 26 schedule l, para 13, reprinted in RSC 1985, Appendix II, No 26 [NRTA].

51

their recognition in the Constitution Act, 1982. That undeniable historical fact must be the starting

point for all discussion of how to define the Metis people.

175. As noted above, this Court in Re Employment Insurance Act explained that the

interpretation of constitutional powers must be guided by previous decisions of the courts. 199 As

shown below, in several cases dealing with Metis, this Court has consistently held that they are a

separate Aboriginal people. Even though the previous decisions of this Court deal with a variety

of constitutional and legislative provisions, the constant factor in those decisions is the separate

and distinct identity of the Metis.

17 6. To support either of the two interpretations of the trial judge's definition of Metis that the

Court of Appeal found defensible, it had to distinguish this Court's decision in Blais, as did the

trial judge. The Court of Appeal touched, briefly, on the Powley decision and made only passing

reference to Cunningham and Manitoba Melis Federation.200 As shown below, those cases also

support the conclusion that the interpretation of the trial judge is contrary to the decisions of this

Court and is erroneous in law.

177. Notwithstanding the apparent ease in which the trial judge distinguished this Court's

decisions, he accepted that the evidence in this proceeding was "similar and sometimes identical"

to that in Manitoba Metis Federation and Blais.201

B. Blais and the Need for Consistency

178. The Court of Appeal distinguished the Blais decision on the basis that this Court left

unanswered whether the term "Indians ins. 91(24) included Metis,202 (the trial judge framed it as

a distinction between a particular constitutional agreement versus a head of power),203 that the

factual findings of the trial judge were different than those of the trial judge in Blais204 and that s.

199 Re Employment Insurance Act supra note 71 at para I 0. 200 FCA Reasons supra note 7 at para 87, Appellants' Record, Volume I, p 214. 201 FC Reasons supra note 5 at para 71, Appellants' Record, Volume 1, p 24; The "Select Committee on the Hudson's Bay Company" census circa 1857 was also before this Court in Blais at para 27 (see Exhibit DI 89, Appellants' Record, Volume 113, p 14956). Similarly, the Lists of Rights were also before this Court in Blais at para 28 and MMF at paras 27, 28 (see Exhibit D66, Appellants' Record, Volume 107, pp 13789-13791; see also Exhibit D238, Appellants' Record, Volume 115, p 15346). 202 FCA Reasons supra note 7 at paras 108-109, Appellants' Record, Volume I, pp 218-219. 203 FC Reasons supra note 5 at para 541, Appellants' Record, Volume 1, p 152; FCA Reasons ibid at para 114, Appellants' Record, Volume l, p 220. 204 FC4 Reasons supra note 7 at paras 117-118, Appellants' Record, Volume 1, pp 220-221.

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13 of the NRTA was based on a view that Indians needed special protection, a view that did not

extend to the Metis based on the facts as found by the trial judge.205 In particular, the trial judge

held that he was not bound by Blais, because the evidence before him was" ... regarding the Metis

which is broader geographically and historically than other cases cited."206

179. By contrast, this Court's determination in Blais that "Indian" in the NRTA did not include

Metis is consistent with the inclusion of Metis and Indians and Inuit as separate Aboriginal peoples

ins. 35 of the Constitution Act, 1982. It is also consistent with the historical record and findings

of fact in Blais at all three levels of court including this Court. It is particularly difficult to accept

that the reliability of the finding that Metis were a distinct Aboriginal people in Blais has changed

so dramatically that a few years later it could be said those same people - people whose history,

community and self-identity has not changed - are no longer a separate and distinct Aboriginal

people.

180. The resultant patchwork identification of Metis for specific constitutional or legislative

purposes is unsustainable. If the approach of the courts below is followed, then an individual or

community could be non-Indian for the purposes of the NRTA, which forms part of the

Constitution, but Indian for the purposes of s. 91 (24) of the Constitution Act, 1867, and non-Indian

again for the purposes of s. 35 of the Constitution Act, 1982.

181. The conclusions of the courts below are a direct result of the erroneous approach taken by

the trial judge in interpreting the Constitution. Whether it is a purposive or progressive approach,

the living tree analogy for the interpretation of the Constitution should not be used to import terms

or obligations not intended by the plain words of the Constitution.

182. In Blais this Court has explained that the living tree approach does not mean that the

historical context may be disregarded:

The appellant ... argues that, regardless of para. 13 's original meaning, contemporary values, including the recognition of the Crown's fiduciary duty towards Aboriginal peoples and general principles of restitutive justice, require us to interpret the word "Indians" as including the Metis.

205 Ibid at paras 119-120, Appellants' Record, Volume I, p 221. 206 FC Reasons supra note 5 at para 575, Appellants' Record, Volume 1, p 163.

53

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.207

183. When coupled with this Court's guidance in Re Employment Insurance Act that the

interpretation of constitutional powers must be guided by previous decisions,208 it becomes

apparent that the approach taken by the courts below was in error.

184. Finally, the application of these interpretive principles to the Constitution should not be

confused with the "continuity of language" argument made in Blais. That argument centred on

whether the inclusion of the term Metis in s. 35 of the Constitution Act, 1982 changed the

interpretive analysis of the NRTA. This Court concluded it did not:

The appellant asks us to impose a "continuity of language" requirement on the Constitution as a whole in order to support his argument that the term "Indians" in the NRTA includes the Metis. We do not find this approach persuasive. To the contrary, imposing a continuity requirement would lead us to conclude that "Indians" and "Metis" are different, since they are separately enumerated in s. 35(2) of the Constitution Act, 1982.209

185. Just as this Court rejected a "continuity of language" argument, this Court should reject the

approach of the courts below, which essentially ignored past determinations of who the Metis are.

A consistent and broadly contextual approach to define the Metis is necessary to provide stability

and consistency when dealing with the Metis as an Aboriginal people.

C. What this Court Found in Blais

186. The issue in Blais is easily identified. Mr. Blais was charged with hunting in a prohibited

area in contravention of provincial wildlife legislation. He claimed that as a Metis in Manitoba he

had a constitutional right to hunt by virtue of paragraph 13 of the NRTA.210

207 Blais supra note 3 at paras 39-40. 208 Re Employment Insurance Act supra note 71 at para 10. 209 Ibid at para 36. 210 NRTA supra note 198.

54

187. The NRTA is part of the Constitution.211 Paragraph 13 of the NRTA, the relevant section,

reads as follows:

In order to secure to the Indians of the Province the continuance of the supply of game and fish for their support and subsistence, Canada agrees that the laws respecting game in force in the Province from time to time shall apply to the Indians within the boundaries thereof, provided, however, that the said Indians shall have the right, which the Province hereby assures to them, of hunting, trapping and fishing game and fish for food at all seasons of the year on all unoccupied Crovm lands and on any other lands to which the said Indians may have a right of access.

188. In setting the context for its finding that the term "Indian" in the NRTA did not include

Metis, this Court was careful to set out the relevant historical and constitutional context. Early in

that decision the Court noted that Mr. Blais was, as a Metis, "a member of a distinctive community

descended from unions between Europeans and Indians or lnuit."212 This Court also cautioned that

the NRTA must be construed "generously" and in a manner "that will fulfill the broad purpose of

the guarantee . . . 'it is important not to overshoot the actual purpose of the right or freedom in

question, but to recall that the [constitutional provision] was not enacted in a vacuum, and must

therefore ... be placed in its proper linguistic, philosophic and historical contexts' ."213 In this case,

that proper context now includes the Blais decision.

189. The Court in Blais also referred to its earlier decision in Re Eskimo214 stating that was

"essentially the approach the Court used in 1939 when the Comi examined the historical record to

determine whether the term "Indians" ins. 91(24) ... includes the Inuit ... ".215

190. On the facts before it and after examining the relevant historical context and conclusions

of the lower courts, this Court found that" ... the evidence demonstrates the Metis to be independent

and proud of their identity separate and apart from the Indians."216 Although this Court did leave

open the question of whether Metis were included under the term "Indian" for s. 91(24) (quite

reasonably as that was not before the Court in Blais and any such determination would have been

211 The NRTA is one of the Acts listed in the Schedule to the Constitution Act, 1982, and thereby made part of the Constitution of Canada by virtue of s 52(2)(b) of the Constitution Act, 1982. 212 Blais supra note 3 at para 7. 213 Ibid at para 17, citing R v Big M Drug Mart Ltd, [1985] 1 SCR 295 at 344; 18 DLR (4th) 32 l. 214 Re Eskimo supra note 54. 215 Blais supra note 3 at para 17. 216 ibid at para 20.

55

in obiter) there are no qualifications or caveats on the determination that as a fact the Metis were

separate and apart from Indians.

191. This Court also made an unequivocal finding that this distinction between the Metis and

other Aboriginal peoples was not something that instantly appeared in the 20th century. The Blais

decision noted that the "difference between Indians and Metis appears to have been widely

recognized and understood by the mid-19th century" and further that "[g]overnment actors and the

Metis themselves viewed the Indians as a separate group with different historical entitlements."217

192. This is in direct contrast to what the trial judge found based on the expansionist theory put

forth by the appellants. However, the significant error made by the courts below was that they

failed to reconcile the historical and legal determinations in Blais with the evidence before them.

For the most part, the courts below simply pointed vaguely to the presence of a different factual

record as their primary reason for ignoring the conclusions of this Court.218 They completely failed

to be guided by the decision of this Court in Blais.

193. Using the approach of the courts below, there will never be certainty about whether Metis

are a distinct Aboriginal people from Indians or Inuit. Indeed, if the findings of the Courts below

are accepted, then the decisions of this Court in Blais, Powley and A1anitoba Metis Federation

(dealt with below) must all be called into question. Although each of those cases dealt with

different provisions of the Constitution or legislation,219 the common element to all of these cases

is an historical constant concerning how the Metis are defined in relation to other Aboriginal

peoples. Either the Metis have been a separate and distinct aboriginal people for centuries, and

well before 1867, or they have never been separate and distinct and are not so today.

194. There are several other inconsistencies between the decision in Blais and the decisions of

the courts below in this matter. First, in Blais, this Court considered the effect of s. 31 of the

Manitoba Act, 1870. Section 31 stated that land was to be provided for the Metis "towards the

217 Ibid at para 21. 218 FC Reasons supra note 5 at paras 541, 574, 575, Appellants' Record, Volume 1, pp 152, 162-163; FCA Reasons supra note 7 at paras 115-120, Appellants' Record, Volume 1, pp 220-221. 219 In Blais this Court dealt with para 13 of the NRTA; section 26 of The Wildlife Act, RSM 1987, c Wl30; and section 35 of the Constitution Act, 1982. In Powley this Court dealt with section 35 of the Constitution Act, 1982 and sections 46 and 47(1) of the Game and Fish Act, RSO 1990, c GI. In Manitoba Melis Federation this Court dealt with section 35 of the Constitution Act, 1982 and section 31 of the Manitoba Act, 1870.

56

extinguishment of the Indian Title to the lands in the Province."220 In the case under appeal, the

trial judge found that s. 31 demonstrated that Indians and Metis were "linked in the exercise of

federal jurisdiction."221 In Blais, however, this Court noted that s. 31 "was expressly recognized at

the time as being an inaccurate description." In making that finding, the Court quoted Sir John A.

Macdonald's speech in 1885, in which he admitted that the phrase was misleading because "the

half-breeds did not allow themselves to be Indians."222

195. The trial judge distinguished this Court's reliance on that speech by stating that this Court

did not juxtapose that speech against earlier statements in 1870 where Macdonald had referred to

the allocation of Indian land to Half-breeds as being for the purpose of extinguishing Indian title.223

196. This is an odd approach to the 1885 speech because in it Macdonald specifically recants

his earlier statements from 1870. The whole purpose of the 1885 speech is to explain and correct

the 1870 statements. In the context of the speech, the statements are in effect juxtaposed by

Macdonald himself.

197. This revisionist approach to history is deeply problematic. The same approach could be

taken to any historical fact found about the Metis by this Court, or for that matter to any other

historical fact. Historical theories can lose favour over time, but one should be wary of revisiting

this Court's fundamental determinations.

198. Another example of inconsistency is the trial judge's reliance upon the fact that individual

Metis moved "in and out of treaty", which he concluded was an exercise of the federal Indian

power.224 In Blais this Court specifically rejected such an argument:

It could be argued that the ability of individual Metis to identify themselves with Indian bands and to claim treaty rights on this basis weighs against a view of the two groups as entirely distinct. However, the very fact that a Metis person could "choose" either an Indian or a white identity supports the view that a Metis person was not considered Indian in the absence of an individual act of voluntary association. 225

220 Blais supra note 3 at para 22; Manitoba Act, 1870 supra note 40. 221 FC Reasons supra note 5 at para 401, Appellants' Record, Volume l, p 113. 222 Blais supra note 3 at para 22. 223 FC Reasons supra note 5 at paras 575, 407, Appellants' Record, Volume l, pp 163, 115. 224 Ibid at paras 513-525, Appellants' Record, Volume 1, pp 144-147. 225 Blais supra note 3 at para 24.

57

199. Similarly, in Blais this Court noted that "[t]here might not have been absolute consistency

in the use of the terms 'Indian' and 'half-breed', and there appears to have been some mobility

between the two groups." Nonetheless, this Court concluded, "as evidenced by the historical

documents ... the prevailing trend was to identify two distinct groups and to differentiate between

their respective entitlements."226

200. Moreover, in Blais, this Court referred to the same historical document which had been

relied upon by the Court in support of its finding in Re Eskimo that the Eskimo were Indians within

the meaning of s. 91(24). In Re Eskimo, this Court examined a census prepared by the Hudson's

Bay Company for the purpose of a Parliamentary committee examining the affairs of the Company,

and found that the document demonstrated that the Eskimo were regarded at the time of

Confederation as a type of Indian.227 In Blais, by contrast, this Court concluded that the same

document "illustrates that the 'Whites and half-breeds' were viewed as an identifiable group,

separate and distinct from the Indians."228

201. In Blais this Court used a contextual historical approach to constitutional interpretation that

also incorporated, to some extent, a purposive approach. The Court examined the objectives of the

NRTA, and concluded that the purpose of paragraph 13 was to protect the hunting rights oflndians.

However, this purpose did not extend to the Metis:

The protection accorded by para. 13 was based on the special relationship between Indians and the Crown. Underlying this was the view that Indians required special protection and assistance. Rightly or wrongly, this view did not extend to the Metis. The Metis were considered more independent and less in need of Crown protection than their Indian neighbours, as Wright J. confirmed. Shared ancestry between the Metis and the colonizing population, and the Metis' mvn claims to a different political status than the Indians in their Lists of Rights, contributed to this perception. The stark historic fact is that the Crown viewed its obligations to Indians, whom it considered its wards, as different from its obligations to the Metis, who were its negotiating partners in the entry of Manitoba into Confederation.229

202. The conclusions of this Com1 in Blais, and the findings of the courts below in this matter

are clearly at odds in respect of whether the Metis are a distinct and separate Aboriginal people.

226 Ibid at para 29. 227 Re Eskimo supra note 54 at 106-107, 123. 228 Blais supra note 3 at para 27. 229 Ibid at para 33.

58

D. Courts Below Failed to Deal Adequately with Powley, Cu11ningliam and Manitoba Metis Federation

203. The decision of this Court in Blais is only one in a series of decisions that run against the

determinations of the courts below in this matter. The Court of Appeal essentially ignored Powley,

Cunningham and Manitoba Melis Federation, while the trial judge dismissed them by suggesting

that they are distinguishable on their facts.230 These cases form part of the overall context and

provide the necessary guidance for what must be decided.

i) Powley

204. The issue in Powley was whether members of the Metis community of Sault Ste. Marie

enjoyed a right to hunt for food that was protected under s. 35 of the Constitution Act, 1982.231

Specifically, the issue was whether ss. 46 and 47(1) of the Game and Fish Act of Ontario, which

prohibited moose hunting without a licence, unconstitutionally infringed the Powleys' right to hunt

for food. 232

205. The fact that Powley deals with s. 35 of the Constitution Act, 1982, does not diminish the

significance of the findings made by this Court, and the courts below in Powley, concerning the

status of the Metis as a separate and distinct Aboriginal people well before Confederation.

206. For example, this Court noted that "Metis communities evolved and flourished prior to the

entrenchment of European control, when the influence of European settlers and political

institutions became preeminent."233 This Court also described the Metis as having a "common

experience of having forged a new culture and a distinctive group identity from their Indian or

Inuit and European roots".234

207. Of particular interest, given the appellants' contention that it was difficult to discern exactly

who the Metis were at the time of Confederation, is that this Court in Powley specifically noted

that the Metis are a diverse people made up of different groups with "their own distinctive traits

23° FC Reasons supra note 5 at paras 125-129, 595, Appellants' Record, Volume I, pp 40-41, 168; FCA Reasons supra note 7 at paras 109, 111, Appellants' Record, Volume l, p 219. 231 Powley supra note 3 at para 1. 232 Ibid at para 8. 233 Ibid at para IO. 234 Ibid at para 11.

59

and traditions".235 Although the Court later set out a three-part test for Metis identity (at least as in

the context of s. 35 of the Constitution Act. 1982)236, it provided a more general description earlier

in the decision where the Metis are described as "a group ... with a distinctive collective identity,

living together in the same geographic area and sharing a common way oflife".237 Throughout the

Powley decision this Court noted that the Metis are a distinct and separate Aboriginal people with

their own history and culture.238 Specifically, it was accepted by this Court that Metis communities

had been established as early as the 17th century.239

208. Of note, this Court did not in Powley or in any other decision say that the Metis had to be

people who lived in isolation from Europeans or Indians. This is in contrast to the argument that

the mixing of Metis and Indians meant there was no distinction between them in the eyes of the

framers of the Constitution.

209. Perhaps most importantly, this Court said that "the fact that the Powleys' ancestors lived

on an Indian reserve for a period of time does not negate the Powleys' Metis identity."240

Moreover, it was also accepted that the fact that a practice may be exercised by both Indian and

Metis Aboriginal peoples does not in itself disqualify that practice from being recognized as a right

of the Metis under s. 35 of the Constitution Act, 1982.241 This is important as much of the

appellants' argument is based on their view that it was difficult to distinguish Metis from Indians

because they shared many of the same practices or customs. As this Court recognized, this is not

a determining factor.

ii) Cunningham

210. This Court reiterated the point that the Metis are a distinct aboriginal people in

Cunningham, a case concerning whether certain provisions of the Metts Settlements Act242 of

Alberta violated the Charter. As this Court noted:

235 Ibid at para 11. 236 Ibid at paras 3 l-33. 237 Ibid at para 12. 238 Ibid at paras 10, 11, 13, 14, 17, 18, 21, 36, 37. 239 Ibid at para 21. 240 Ibid at para 35. 241 Ibid at para 38. 242 Metis Settlements Act, RSA 2000, c M-14.

60

The history of the Metis is one of struggle for recognition of their unique identity as the mixed race descendants of Europeans and Indians. Caught between two larger identities and cultures, the Metis have struggled for more than two centuries for recognition of their own unique identity, culture and governance. The constitutional amendments of 1982 and, in their wake, the enactment of the MSA, signal that the time has finally come for recognition of the Metis as a unique and distinct people.243

211. This Court observed that the legislation at issue recognized the historic uniqueness of the

Metis based on "non-Indianness".

The object of the MSA, as we have seen, is to promote Metis identity, culture and self-governance in recognition of their unique status - aboriginal, yet neither Indian nor Inuit. This object corresponds to historic differences between the Metis and Indians. Since their emergence as a distinct people on the Canadian prairies in the 1700s, the Metis have claimed an identity based on non-Indianness. They have persistently distinguished themselves as a people from the other dominant Aboriginal group in their territory - Indians.244

212. This Court also noted that the Metis were culturally distinct from Indians. As aptly noted,

" ... [w]ithin a few generations the descendants of these unions [between European men and Indian

women] developed a culture distinct from their European and Indian forebears."245

213. It was also clearly accepted by this Court that the Metis were treated differently than

Indians by the federal Crown.

The Crown did not apply to the Metis its policy of treating with the Indians and establishing reservations and other benefits in exchange for lands. In some regions, it adopted a scrip system that accorded allotments of land to individual Metis. However, Metis communities were not given a collective reservation or land base; they did not enjoy the protections of the Indian Act or any equivalent. Although widely recognized as a culturally distinct Aboriginal people living in culturally distinct communities, the law remained blind to the unique history of the Metis and their unique needs. 246

214. Perhaps most important, given the conclusions of the trial judge and his reliance on various

pieces of post-Confederation legislation, including the federal Indian Act, to support his finding

243 Cunningham supra note 3 at para 70. 244 lbid at para 75. 245 Ibid at para 5. 246 Ibid at para 7.

61

that Metis were "Indians" in 1867, was this Court's acceptance that govemments (in this case

Alberta) did deal with the Metis as a separate Aboriginal people in legislation.247

215. In terms of the treatment of the Metis under federal legislation, this Court said that changes

to the Indian Act to allow some Metis the option of registering as status Indians should be seen as

"correcting" an injustice, which is far different from the trial judge's view that it meant the Metis

were simply "Indians".248 As this Court held:

While the negotiations proceeded with the Alberta Metis to achieve a land base, self-governance and support for Metis culture and identity, an important change was made to broaden the definition of who could register as an Indian under the federal Indian Act. In An Act to amend the Indian Act, S.C. 1985, c. 27 (Bill C-31 ), Parliament reinstated the right to Indian status for many Metis settlement members who had been previously denied status, including the claimants. Prior to this amendment, Indian women who married Metis men lost their Indian status and could not pass it to their descendants. The new act went some way towards correcting this injustice, recognized the descendants of these unions, and gave them the option of registering as status Indians.249

216. In sum, Cunningham confirmed the distinct nature, culture and existence of the Metis.

iii) Manitoba Metis Federation

217. This Court reaffirmed the historical distinction between the Metis and other Aboriginal

peoples in Manitoba lvfetis Federation. Again, this Court emphasized that the Metis and Indians

were not historically regarded as the same, nor were they treated the same:

[2] This meant dealing with the indigenous peoples who were living in the westem territories. On the prairies, these consisted mainly of two groups - the First Nations, and the descendants of unions between white traders and explorers and Aboriginal women, now known as Metis.

[3] The government policy regarding the First Nations was to enter into treaties with the various bands, whereby they agreed to settlement of their lands in exchange for reservations of land and other promises.

[4] The government policy with respect to the Metis population - which, in 1870, comprised 85 percent of the population of what is now Manitoba - was less clear. Settlers began pouring into the region, displacing the Metis' social and political control. This led to resistance and conflict. To resolve the conflict and assure

247 Ibid at paras 8-12. 248 FC Reasons supra note 5 at paras 597, 598, Appellants' Record, Volume I, p 168. 249 Cunningham supra note 3 at para 24.

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peaceful annexation of the territory, the Canadian government entered into negotiations with representatives of the Metis-led provisional government of the territory. The result was the Manitoba Act, 1870, S.C. 1870, c. 3 ("Manitoba Act") which made Manitoba a province of Canada.

[21] The story begins with the Aboriginal peoples who inhabited what is now the province of Manitoba - the Cree and other less populous nations. In the late 17th century, European adventurers and explorers passed through. The. lands were claimed nominally by England which granted the Hudson's Bay Company, a company of fur traders operating out of London, control over a vast territory called Rupert's Land, which included modem Manitoba. Aboriginal peoples continued to occupy the territory. In addition to the original First Nations, a new Aboriginal group, the Metis, arose - people descended from early unions between European adventurers and traders, and Aboriginal women. In the early days, the descendants of English-speaking parents were referred to as half-breeds, while those with French roots were called Metis.250

E. Conclusion: Trial Judge's definition of Metis is Unsustainable

218. The clear and consistent jurisprudence of this Court from Blais and Powley, to Cunningham

and Manitoba Metis Federation demonstrates a baseline determination that the Metis were a

distinct and separate Aboriginal people with their own culture, customs, traditions and

communities. The weight of the evidence in these cases and the conclusions of this Court in each.

of these cases are significant contextual factors, but were accorded virtually no weight by the courts

below. It is difficult to accept that all of these previous cases should be seen as wrongly decided

because the trial judge in this case accepted a theory of history proposed by one witness.

219. At the core of the trial judge's definition is the notion that the Metis are individuals whose

"Indianness" is essential to how they identity themselves. The trial judge's ai1ificial definition of

Metis was an integral part of his finding that the Metis fall within federal jurisdiction under s.

91(24). He held thats. 91(24) allows the federal government to legislate "in relation to people who

are defined, at least in a significant way, by their native heredity", and that "the factor which

distinguishes both non-status Indians and Metis from the rest of Canadians . . . is that native

heritage -their "Indian[n]ess".251

250 Manitoba Melis Federation supra note 3 at paras 2-4, 21. 251 FC Reasons supra note 5 at para 544, Appellants' Record, Volume 1, p 153.

63

220. The identification and definition of the Metis used by the trial judge is inconsistent with

the jurisprudence of this Court which holds that the Metis are a distinct people: they did not and

do not identify as Indians. To define the Metis now as individuals whose "Indianness" is central

to their identity, solely for the purpose of makings. 91(24) apply to them, is artificial and contrary

to their historical treatment as a distinct people.

221. The declarations sought by the appellants cannot be granted. Not only would they be vague

and without real impact as they are not based i~ a challenge to any legislation, they are based on a

fundamentally erroneous conception of who the Metis were in 1867 and who they are today.

PART IV-SUBMISSION ON COSTS

222. The Attorney General of Canada acknowledges that by order dated April 22, 2015, this

Court has already awarded the appellants their costs of this appeal in any event of the cause. The

Attorney General does not seek costs and submits that no additional costs should be awarded

against him.

PARTV-ORDERSOUGHT

223. The appeal should be dismissed and the cross-appeal allowed.

DATED at Ottawa, Ontario, this 22nd day of May, 2015.

Counsel for the federal Crown R~spondents

64

PART VI-TABLE OF AUTHORITIES

Statutes & Regulations Paragraph reference

Constitution Act, 1871, 34-35 Viet, c 28 (UK), reprinted in RSC 1985, 152 Appendix II, No 11.

Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 210 1982, c 11, Part I.

Game and Fish Act, RSO 1990, c G 1. 193,204

Indian Act, RSC 1985, c I-5 214,215

Manitoba Act, 1870, SC 1870, c 3, reprinted in RSC 1985, Appendix II, No. 193, 194 8.

Metis Settlements Act, RSA 2000, c M-14. 210

Rupert's Land Act, 1868, 31-32 Viet, c 105 (UK), reprinted in RSC 1985, 152 Appendix II, No 6.

Rupert's Land and North-Western Territory Order, reprinted in RSC 1985, 152 Appendix II, No 9.

Temporary Government of Rupert's Land Act, 1869, 32-33 Viet, c 3 (Can), 152 reprinted in RSC 1985, Appendix II, No 7.

The Wildlife Act, RSM 1987, c W130. 193

Jurisprudence Paragraph reference

AG Canada v Canard, [1976] 1 SCR 170, 52 DLR (3d) 548. 159, 160

Alberta (Aboriginal Affairs and Northern Development) v Cunningham, 170, 171, 176, 2011 sec 37, [2011] 2 scR 670. 203, 210, 211,

212, 213, 214, 215,216,218

Carter v Canada (Attorney General), 2015 SCC 5. 171

Housen v Nikolaisen, 2004 SCC 73, [2004] 3 SCR 511. 158

65

Jn the Matter ofa Reference as to Whether the Term "Indians" in Head 24 189,200 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.

Manitoba Metis Federation Inc. v Canada (Attorney General), 2013 SCC 14, 170, 171, 176, [2013] 1 SCR 623. 177, 193, 203,

217,218

Reference re Employment Insurance Act (Canada), 2005 SCC 56, [2005] 2 175, 183, 184 SCR 669.

Reference re Same-Sex Marriage, 2004 SCC 79, [2004] 3 SCR 698. 160

R v Blais, 2003 SCC 44, [2003] 2 SCR 236. 171, 173, 176, 177, 178, 179, 182, 184, 186, 188, 189, 190, 191, 192, 193, 194, 198, 199, 200, 201, 202,

203,218

R v Powley, 2003 SCC 43, [2003] 2 SCR 207. 163, 164, 170, 171, 173, 176, 193, 203, 204, 205, 206, 207, 208,209,218

St Catherine's 1\r!illing & Lumber Co. v. The Queen (1888), 14 App Cas 46 152 (PC).

66

PART VII - STATUTES

Statutes at Issue Paragraph reference

Constitution Act, 1867, (UK), 30 & 31 Viet, c 3, reprinted in RSC 1985, 149, 150, 151, Appendix II, No 5, ss 91, 92. 152, 154, 159,

161, 164, 167, 173, 178, 180, 190, 200, 219,

220

Constitution Act, 1930, (UK), 20 &21 Geo V, c 26 schedule 1, para 13, 173,178,179, reprinted in RSC 1985, Appendix II, No 26. 180, 184, 186,

187, 188, 193, 201

Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 173, 174, 179, 1982, c 11, s 35. 180, 184, 193,

204, 205, 207, 209,

67

HeinOnline -- Appendices Revised Statutes of Canada, 1985 24 1985

68

24

Legislative Authonty of Parliament of Canada

Amendment as to legislative authority of Parliament of Canada

No.5 Constitution Act, 1867

Provisions were here re-enacted and made applicable in Terms to the respective Provinces and the Legislatures thereof, with the Substitu­tion of the Lieutenant Governor of the Province for the Governor General, of the Governor General for the Queen and for a Secretary of State, of One Year for Two Years, and of the Province for Canada.

VI. DISTRIBUTION OF LEGISLATIVE POWERS

Powers of the Parliament

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 herein-after enumerated; that is to say,-

1. The amendment from time to time of the Constitution of Canada, except as regards matters coming within the classes of subjects by this Act assigned exclusively to the Legislatures of the provinces, or as regards rights or privileges by this or any other Con­stitutional Act granted or secured to the Legislature or the Government of a province, or to any class of persons with respect to schools or as regards the use of the English or the French language or as regards the requirements that there shall be a session of the Parliament of Canada at least once each year, and that no House of Commons shall continue for more than five years from the day of the return of the Writs for choosing the House: Provided, however, that a House of Commons may in time of real or apprehended war, invasion or insurrection be continued by the Parliament of Canada if such continuation is not opposed by the votes of more than one-third of the members of such House. (Note: Class .1 was added by the British North

America Act (No. 2). /949 (No. 33 infra) and repealed by the Constitution Act, /982 (No. 44 infra).)

provinces, tout comme si elles etaient ici deere­tees et rendues expressement applicables aux provinces respectives et a leurs legislatures, en substituant toutefois le lieutenant-gouverneur de Ia province au gouverneur-general, le gou­verneur-general a Ia Reine et au secretaire d'Etat, un an a deux ans, et Ia province au Canada.

VI. DISTRIBUTION DES POUVOIRS u§.GISLATIFS

Pouvoirs du parlement

91. II sera loisible a Ia Reine, de l'avis et du consentement du Senat et de Ia Chambre des Communes, de faire des lois pour Ia paix, l'ordre et le bon gouvernement du Canada, relativement a toutes les matieres ne tombant pas dans les categories de sujets par Ia presente loi exclusivement assignes aux legislatures des provinces; mais, pour plus de garantie, sans tou­tefois restreindre Ia generalite des termes ci­haut employes dans le present article, il est par Ia presente declare que (nonobstant toute dispo­sition contraire enoncee dans Ia presente loi) l'autorite legislative exclusive du parlement du Canada s'etend a toutes les matieres tombant dans les categories de sujets ci-dessous enume­res, savoir:

1. La modification, de temps a autre, de Ia constitution du Canada, sauf en ce qui con­cerne les matii~res rentrant dans les catego­ries de sujets que Ia presente loi attribue exclusivement aux legislatures des provin­ces, ou en ce qui concerne /es droits ou privi­leges accordes ou garantis, par Ia presente /oi ou par toute autre /oi constitutionnelle. a Ia legislature ou au gouvernement d'une province, ou a que/que categorie de person­nes en matiere d'eco/es, ou en ce qui regarde /'emploi de I'anglais ou du fran9ais, ou les prescriptions portant que le parlement du Canada tiendra au mains une session chaque annee et que Ia duree de chaque chambre des communes sera limitee a cinq annees, depuis le jour du rapport des brefs ordonnant !'election de cette chambre; toutefois, le par­lement du Canada peut pro/anger Ia duree d'une chambre des communes en temps de guerre, d'invasion ou d'insurrection. reelles ou apprehendees. si cette prolongation n'est pas /'objet d'une opposition exprimee par les votes de plus du tiers des membres de /adite chambre. [Note : La categorie 1 a ete ajoutee par l'Acte de

Autonte legis­lauve du parle­ment du Canada

Modification concernant /'autorite legis­lative du parle­ment du Canada

HeinOnline -- Appendices Revised Statutes of Canada, 1985 25 1985

69

Loi constitutionnelle ( 1867)

lA. The Public Debt and Property. [Note: Re-numbered lA by the British North

America Act (No.2). /949 (No. 33 infra).]

2. The Regulation of Trade and Commerce. 2A. Unemployment insurance. [Note: Added by the Constitution Act. /940 (No. 28

infra).]

3. The raising of Money by any Mode or Sys­tem of Taxation. 4. The borrowing of Money on the Public Credit. 5. Postal Service. 6. The Census and Statistics. 7. Militia, Military and Naval Service, and Defence. 8. The fixing of and providing for the Sal­aries and Allowances of Civil and other Offi­cers of the Government of Canada. 9. Beacons, Buoys, Lighthouses, and Sable Island. 10. Navigation and Shipping. II. Quarantine and the Establishment and Maintenance of Marine Hospitals. 12. Sea Coast and Inland Fisheries. 13. Ferries between a Province and any Brit­ish or Foreign Country or between Two Prov­inces. 14. Currency and Coinage. 15. Banking, Incorporation of Banks, and the Issue of Paper Money. 16. Savings Banks. 17. Weights and Measures. 18. Bills of Exchange and Promissory Notes. 19. Interest. 20. Legal Tender. 21. Bankruptcy and Insolvency. 22. Patents of Invention and Discovery. 23. Copyrights. 24. Indians, and Lands reserved for the Indi­ans. 25. Naturalization and Aliens. 26. Marriage and Divorce. 27. The Criminal Law, except the Constitu­tion of Courts of Criminal Jurisdiction, but including the Procedure in Criminal Matters. 28. The Establishment, Maintenance, and Management of Penitentiaries. 29. Such Classes of Subjects as are expressly excepted in the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces.

/'Amerique du Nord britannique (If' 2). 1949 (n• 33 infra) et abrogee par Ia Loi constitutionnelle de /982 (n• 44 infra).]

1 A. La dette et Ia propriete publiques. [Note : Renumerote 1 A par l'Acte de !"Amerique du

Nord britannique (If' 2). /949 (n• 33 infra).]

2. La reglementation du trafic et du com­merce. 2A. L'assurance-ch6mage. [Note: Ajoute par Ia Loi constitutionnelle de 1940

(n• 28 infra).]

3. Le prelevement de deniers par tous modes ou systemes de taxation. 4. L'emprunt de deniers sur le credit public. 5. Le service postal. 6. Le recensement et les statistiques. 7. La milice, le service militaire et le service naval, et Ia defense du pays. 8. La fixation et le paiement des salaires et honoraires des officiers civils et autres du gouvernement du Canada. 9. Les amarques, les bouees, les phares et l'ile de Sable. 10. La navigation et les batiments ou navires (shipping). 11. La quarantaine et l'etablissement et maintien des h6pitaux de marine. 12. Les pecheries des cotes de Ia mer et de l'interieur. 13. Les passages d'eau (ferries) entre une province et tout pays britannique ou etran­ger, ou entre deux provinces. 14. Lecours monetaire et le monnayage. 15. Les banques, ('incorporation des banques et remission du papier-monnaie. 16. Les caisses d'epargne. 17. Les poids et mesures. 18. Les lettres de change et les billets promis­soires. 19. L'interet de l'argent. 20. Les offres legales. 21. La banqueroute et Ia faillite. 22. Les brevets d'invention et de decouverte. 23. Les droits d'auteur. 24. Les Indiens et les terres reservees pour les Indiens. 25. La naturalisation et les aubains. 26. Le mariage et le divorce. 27. La loi criminelle, sauf Ia constitution des tribunaux de juridiction criminelle, mais Y compris Ia procedure en matiere criminelle.

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Subjects of exclusive Pro­vmcial Legisla­tion

No.5 Constitution Act, !867

And any Matter coming within any of the Classes of Subjects enumerated in this Section shall not be deemed to come within the Class of Matters of a local or private Nature comprised in the Enumeration of the Classes of Subjects by this Act assigned exclusively to the Legisla­tures of the Provinces.

[Note: Legislative authority has also been conferred by the Rupert's Land Act, 1868 (No.6 infra), Constitu­tion Act, 1871 (No. II infra), Constitution Act, /886 (No. IS infra), Statute of Westminster, /93/ (No. 27 infra) and section 44 of the Constitution Act, /982 (No. 44 mfra), and see also sections 38 and 41 to 43 of the latter Act.]

Exclusive Powers of Provincial Legislatures

92. In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next herein-after enumerated; that is to say,-

/. The Amendment from Time to Time, not­withstanding anything in this Act, of the Constitution of the Province, except as regards the Office of Lieutenant Governor. [Note: Class I was repealed by the Constitution Act,

1982 (No. 44 infra). The subject is now provided for in sect ton 45 of that Act, and see also sections 38 and 41 to 43 of the same Act.]

2. Direct Taxation within the Province in order to the raising of a Revenue for Provin­cial Purposes. 3. The borrowing of Money on the sole Credit of the Province. 4. The Establishment and Tenure of Provin­cial Offices and the Appointment and Pay­ment of Provincial Officers. 5. The Management and Sale of the Public Lands belonging to the Province and of the Timber and Wood thereon. 6. The Establishment, Maintenance, and Management of Public and Reformatory Prisons in and for the Province. 7. The Establishment, Maintenance, and Management of Hospitals, Asylums, Chari­ties, and Eleemosynary Institutions in and

28. L'etablissement, le mamt1en, et )'admi­nistration des penitenciers. 29. Les categories de sujets expressement exceptes dans I'enumeration des categories de sujets exclusivement assignes par Ia pre­sente loi aux legislatures des provinces.

Et aucune des matieres enoncees dans les cate­gories de sujets enumeres dans le present article ne sera reputee tomber dans Ia categorie des matieres d'une nature locale ou privee compri­ses dans )'enumeration des categories de sujets exclusivement assignes par Ia presente loi aux legislatures des provinces.

[Note : Ont aussi confere une competence legislative au Parlement l'Acte de Ia Terre de Rupert, /868 (n• 6 infra), Ia Loi constitutionnel/e de 1871 (n• II infra), Ia Loi constitutionnel/e de 1886 (n• IS infra), le Statui de Westminster de 1931 (n• 27 infra) et !'article 44 de Ia Loi constitutionnel/e de /982 (n• 44 infra). Voir aussi les articles 38 et 41 a 43 de cette derniere loi.]

Pouvoirs exc/usifs des legislatures provinciales

92. Dans chaque province Ia legislature pourra exclusivement faire des lois relatives aux matieres tombant dans les categories de sujets ci-dessous enumeres, savoir:

I. L' amendement de temps a autre, nonob­stant toute disposition contraire enoncee dans le present acte, de Ia constitution de Ia province, sauf les dispositions relatives a Ia charge de lieutenant-gouverneur; [Note: Cette categorie a ete abrogee par Ia Loi cons­

titutionnel/e de /982 (n• 44 infra). La teneur s'en retrouve maintenant a !'article 45 de Ia Loi constitution­nelle de 1982. Voir aussi les articles 38 et 41 a 43 de cette loi.]

2. La taxation directe dans les limites de Ia province, dans le but de prelever un revenu pour des objets provinciaux; 3. Les emprunts de deniers sur le seul credit de Ia province; 4. La creation et Ia tenure des charges pro­vinciales, et Ia nomination et le paiement des officiers provinciaux; 5. L'administration et Ia vente des terres publiques appartenant a Ia province, et des bois et forets qui s'y trouvent; 6. L'etablissement, I'entretien et )'adminis­tration des prisons publiques et des maisons de reforme dans Ia province;

Sujets soumis au controle exclustf de Ia legislation pro­vinciale

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Loi constitutionnelle ( 1867)

for the Province, other than Marine Hospi­tals. 8. Municipal Institutions in the Province. 9. Shop, Saloon, Tavern, Auctioneer, and other Licences in order to the raising of a Revenue for Provincial, Local, or Municipal Purposes. 10. Local Works and Undertakings other than such as are of the following Classes:-

a. Lines of Steam or other Ships, Rail­ways, Canals, Telegraphs, and other Works and Undertakings connecting the Province with any other or others of the Provinces, or extending beyond the Limits of the Province:

b. Lines of Steam Ships between the Prov­ince and any British or Foreign Country:

c. Such Works as, although wholly situate within the Province, are before or after their Execution declared by the Parliament of Canada to be for the general Advantage of Canada or for the Advantage of Two or more of the Provinces.

II. The Incorporation of Companies with Provincial Objects. 12. The Solemnization of Marriage in the Province. 13. Property and Civil Rights in the Prov­ince. 14. The Administration of Justice in the Province, including the Constitution, Mainte­nance, and Organization of Provincial Courts, both of Civil and of Criminal Juris­diction, and including Procedure in Civil Matters in those Courts. 15. The Imposition of Punishment by Fine, Penalty, or Imprisonment for enforcing any Law of the Province made in relation to any Matter coming within any of the Classes of Subjects enumerated in this Section. 16. Generally all Matters of a merely local or private Nature in the Province.

7. L'etablissement, l'entretien et !'adminis­tration des hopitaux, asiles, institutions et hospices de charite dans Ia province, autres qu~ les hopitaux de marine; 8. Les institutions municipales dans Ia pro­vince; 9. Les licences de boutiques, de cabarets, d'auberges, d'encanteurs et autres licences, dans le but de prelever un revenu pour des objets provinciaux, locaux, ou municipaux; I 0. Les travaux et entreprises d'une nature locale, autres que ceux enumeres dans les categories suivantes:-

a. Lignes de bateaux a vapeur ou autre biitiments, chemins de fer, canaux, te!egra­phes et autres travaux et entreprises reliant Ia province a une autre ou a d'autres pro­vinces, ou s'etendant au-dela des limites de Ia province; b. Lignes de bateaux a vapeur entre Ia pro­vince et tout pays dependant de !'empire britannique ou tout pays etranger; c. Les travaux qui, bien qu'entierement situes dans Ia province, seront avant ou apres leur execution declares par le parle­ment du Canada etre pour l'avantage general du Canada, ou pour l'avantage de deux ou d'un plus grand nombre des pro­vinces;

11. L'incorporation des compagnies pour des objets provinciaux; 12. La celebration du mariage dans Ia pro­vince; 13. La propriete et les droits civils dans Ia province; 14. L'administration de Ia justice dans Ia province, y compris Ia creation, le maintien et !'organisation de tribunaux de justice pour Ia province, ayant juridiction civile et crimi­nelle, y compris Ia procedure en matieres civiles dans ces tribunaux; 15. L'infliction de punitions par voie d'amende, penalite, ou emprisonnement, dans le but de faire executer toute loi de Ia pro­vince decretee au sujet des matieres tombant dans aucune des categories de sujets enume­res dans le present article; 16. Generalement toutes les matieres d'une nature purement locale ou privee dans Ia pro­vmce.

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8 No. 26 Constitution Act, 1930 Schedule

Indian Reserves

II. All lands included in Indian reserves within the Province, including those selected and surveyed but not yet confirmed, as well as those confirmed, shall continue to be vested in the Crown and administered by the Government of Canada for the purposes of Canada, and the Province will from time to time, upon the request of the Superintendent General of Indian Affairs, set aside, out of the unoccupied Crown lands hereby transferred to its administration, such further areas as the said Superintendent General may, in agreement with the Minister of Mines and Natural Resources of the Province, select as neces­sary to enable Canada to fulfil its obligations under the treaties with the Indians of the Province, and such areas shall thereafter be administered by Canada in the same way in all respects as if they had never passed to the Province under the provisions hereof.

12. The provisions of paragraphs one to six inclusive and of paragraph eight of the agreement made between the Govern­ment of the Dominion of Canada and the Government of the Province of Ontario on the 24th day of March, 1924, which said agreement was confirmed by statute of Canada, fourteen and fifteen George the Fifth chapter forty-eight, shall (except so far as they relate to the Bed of Navigable Waters Act) apply to the lands included in such Indian reserves as may hereafter be set aside under the last preceding clause as if the said agreement had been made between the parties hereto, and the provisions of the said paragraphs shall likewise apply to the lands included in the reserves heretofore selected and surveyed, except that nei­ther the said lands nor the proceeds of the disposition thereof shall in any circumstances become administrable by or be paid to the Province.

13. In order to secure to the Indians of the Province the con­tinuance of the supply of game and fish for their support and subsistence, Canada agrees that the laws respecting game in force in the Province from time to time shall apply to the Indi­ans within the boundaries thereof, provided, however, that the said Indians shall have the right, which the Province hereby assures to them, of hunting, trapping and fishing game and fish for food at all seasons of the year on all unoccupied Crown lands and on any other lands to which the said Indians may have a right of access.

Soldier Settlement Lands

14. All interests in Crown lands in the Province upon the security of which any advance has been made under the provi­sions of the Soldier Settlement Act, being chapter 188 of the Revised Statutes of Canada, 1927, and amending Acts, shall continue to be vested in and administered by the Government of Canada for the purposes of Canada.

Reserves indiennes

II. Toutes les terres faisant partie des reserves indiennes situees dans Ia province, y compris celles qui ont ete choisies et dont on a mesure Ia superficie, mais qui n'ont pas encore fait !'objet d'une ratification, ainsi que celles qui en ont ete !'objet, continuent d'appartenir a Ia Couronne et d'etre administrees par le gouvernement du Canada pour les fins du Canada, et, a Ia demande du surintendant general des Affaires indiennes, Ia province reservera, au besoin, a meme les terres de Ia Couronne inoccupees et par les presentes transferees a son administration, les autres etendues que !edit surintendant general peut, d'accord avec le ministre des Mines et des Ressources naturelles de Ia province, choisir comme etant necessaires pour permettre au Canada de remplir ses obligations en vertu des traites avec les Indiens de Ia province, et ces etendues seront dans Ia suite administrees par le Canada de Ia meme maniere, a tous egards, que si elles n'etaient jamais passees a Ia province en vertu des dispositions des presentes.

12. Les dispositions des paragraphes un a six inclusivement du paragraphe huit de Ia convention conclue entre le gouverne­ment du Dominion du Canada et le gouvernement de Ia pro­vince d'Ontario le vingt-quatrieme jour de mars 1924, laquelle dite convention a ete ratifiee par statut du Canada quatorze et quinze George V, chapitre quarante-huit, s'appliqueront (sauf en tant qu'elles ont trait a Ia Loi du lit des cours d'eau naviga­bles) aux terres comprises dans les reserves indiennes qui peu­vent dans Ia suite etre mises a part en vertu de Ia clause prece­dente, tout comme si ladite convention avait ete conclue entre les parties a cette derniere, et les dispositions desdits paragra­phes s'appliqueront egalement aux terres comprises dans les reserves jusqu'ici choisies et arpentees, sauf que ni lesdites ter­res ni le produit de leur alienation ne pourront, en aucunes cir­constances, etre administres par Ia province ou a elle payes.

13. Pour assurer aux Indiens de Ia province Ia continuation de l'approvisionnement de gibier et de poisson destines a leurs sup­port et subsistance, le Canada consent a ce que les lois relatives au gibier et qui sont en vigueur de temps a autre dans Ia pro­vince, s'appliquent aux lndiens dans les limites de Ia province; toutefois, lesdits Indiens auront le droit que Ia province leur assure par les presentes de chasser et de prendre le gibier au piege et de pecher le poisson, pour se nourrir en toute saison de l'annee sur toutes les terres inoccupees de Ia Couronne et sur toutes les autres terres auxquelles lesdits Indiens peuvent avoir un droit d'acces.

Terres d'etablissement de soldats

I 4. Tous les interets dans les terres de Ia Couronne de Ia pro­vince sur Ia garantie desquelles une avance a ete consentie en vertu des dispositions de Ia Loi d'etablissement de soldats, cha­pitre cent quatre-vingt-huit des Statuts revises du Canada, 1927, et des lois modificatrices, continueront d'appartenir au gouvernement du Canada pour les fins du Canada et d'etre administres par lui.

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Annexe B

Recognition of existing aborigi­nal and treaty rights

Definition of "aboriginal peoples of Canada"

Land claims agreements

Aboriginal and treaty rights are guaranteed equally to both sexes

Commitment to participation in constitutional conference

Commitment to promote eq ua I opportunities

Loi constitutionnelle (1982)

PART II

RIGHTS OF THE ABORIGINAL PEOPLES OF

CANADA

35. ( 1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

(2) In this Act, "aboriginal peoples of Canada" includes the Indian, Inuit and Metis peoples of Canada.

(3) For greater certainty, in subsection (I) "treaty rights" includes rights that now exist by way of land claims agreements or may be so acquired.

( 4) Notwithstanding any other prov1s1on of this Act, the aboriginal and treaty rights referred to in subsection (I) are guaranteed equally to male and female persons.

[Note: Subsections 35(3) and (4) were added by the Constitution Amendment Proclamation, /983 (No. 46 itifra).]

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 Canada will invite representatives of the aboriginal peoples of Canada to participate in the discussions on that item. [Note: Added by the Constitution Amendment Proc­

lamation, /983 (No. 46 infra).]

PART Ill

EQUALIZATION AND REGIONAL DISPARITIES

36. (I) Without altering the legislative authority of Parliament or of the provincial legislatures, or the rights of any of them with respect to the exercise of their legislative authority, Parliament and the legislatures, together with the government of Canada and the provincial governments, are committed to

PARTIE II

DROITS DES PEUPLES AUTOCHTONES DU CANADA

35. (I) Les droits existants- ancestraux ou issus de traites- des peuples autochtones du Canada sont reconnus et confirmes.

(2) Dans Ia presente loi, upeuples autochto­nes du Canada» s'entend notamment des Indiens, des Inuits et des Metis du Canada.

(3) II est entendu que sont compris parmi les droits issus de traites, dont il est fait mention au paragraphe (I), les droits existants iss us d'accords sur des revendications territoriales ou ceux susceptibles d'etre ainsi acquis.

(4) Independamment de toute autre disposi­tion de Ia presente loi, les droits-ancestraux ou issus de traites-vises au paragraphe (I) sont garantis egalement aux personnes des deux sexes.

[Note: Les paragraphes 35(3) et (4) ont ete ajoutes aux termes de Ia Proclamation de 1983 modifiant Ia Constitution (n° 46 infra).]

35.1 Les gouvernements federal et provin­ciaux sont lies par !'engagement de principe seton lequel le premier ministre du Canada, avant toute modification de Ia categorie 24 de !'article 91 de Ia «Loi constitutionnelle de 1867», de !'article 25 de Ia presente loi ou de Ia presente partie:

a) convoquera une conference constitution­neUe reunissant les premiers ministres pro­vinciaux et lui-meme et comportant a son ordre du jour Ia question du projet de modifi­cation; b) invitera les representants des peuples autochtones du Canada a participer aux tra­vaux relatifs a cette question. [Note: Ajoute aux termes de Ia Proclamation de

/983 modifiant Ia Constitution (0° 46 infra).]

PARTIE III

PEREQUATION ET INEGALITES REGIONALES

36. ( 1) Sous reserve des competences legisla­tives du Parlement et des legislatures et de leur droit de les exercer, le Parlement et les legisla­tures, ainsi que les gouvernements federal et provinciaux, s'engagent a :

a) promouvoir l'egalite des chances de tous les Canadiens dans Ia recherche de leur bien­etre;

II

Confirmation des droits ex•s­tants des peu­ples autochtones Definition de opeuples autochtones du Canada.

Accords sur des revendicat1ons terri tori ales

Egalite de garantle des droits pour les deux sexes

Engagement relatlf :\ Ia par· ticipation a une conference constitu­tionnelle

Engagements relatifs a I' ega­lite des chances