Daniels v. Canada

Daniels v. Canada
Court (s) Database
Federal Court Decisions
Date
2013-01-08
Neutral citation
2013 FC 6
File numbers
T-2172-99
Notes
Reported Decision
Decision Content
Federal Court
Cour fédérale
Date: 20130108
Docket: T-2172-99
Citation: 2013 FC 6
BETWEEN:
HARRY DANIELS, GABRIEL DANIELS, LEAH GARDNER, TERRY JOUDREY and
THE CONGRESS OF ABORIGINAL PEOPLES
Plaintiffs
and
HER MAJESTY THE QUEEN, as represented by THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT and
THE ATTORNEY GENERAL OF CANADA
Defendants
REASONS FOR JUDGMENT
TABLE OF CONTENTS
Para.
I. Introduction......................................................................................................... 1
II. Court Summary.................................................................................................... 19
III. Parties.................................................................................................................. 29
A. Gabriel Daniels........................................................................................... 30
B. Leah Gardner.............................................................................................. 34
C. Terry Joudrey.............................................................................................. 37
D. The Minister of Indian Affairs and Northern Development...................... 38
E. The Attorney General of Canada............................................................... 39
F. Congress of Aboriginal Peoples.................................................................. 40
IV. Discretion to Decide............................................................................................ 48
V. Nature of the Problem......................................................................................... 84
VI. Problem of Definition.......................................................................................... 111
A. Non-status Indians...................................................................................... 116
B. Métis........................................................................................................... 124
VII. Witnesses............................................................................................................. 131
A. Ian Cowie (Plaintiffs’ Witness).................................................................. 132
B. John Leslie (Plaintiffs’ Witness)................................................................. 137
VIII. Historical Expert Witnesses................................................................................. 147
A. William Wicken (Plaintiffs’ Witness)......................................................... 147
B. Stephen Patterson (Defendants’ Witness).................................................. 152
C. Gwynneth Jones (Plaintiffs’ Witness)........................................................ 161
D. Sébastien Grammond (Plaintiffs’ Witness)................................................ 170
E. Alexander von Gernet (Defendants’ Witness)........................................... 175
IX. Historical Evidence.............................................................................................. 183
A. Pre-Confederation Era................................................................................ 183
(1) Atlantic Canada................................................................................. 184
(a) Nova Scotia.............................................................................. 211
(b) New Brunswick........................................................................ 225
(c) Prince Edward Island............................................................... 227
(d) Newfoundland and Labrador................................................... 229
(2) Quebec/Ontario (Upper/Lower Canada)........................................... 233
(a) Kahnawake............................................................................... 256
(b) Six Nations/Grand River.......................................................... 259
(c) Impact of these Issues.............................................................. 261
(3) Pre-Confederation Statutes............................................................... 268
(4) Pre-Confederation Reports re “Indians”........................................... 288
(5) Pre-Confederation Treaties................................................................ 302
(6) Synopsis: Indian Power Pre-Confederation...................................... 319
B. Confederation............................................................................................. 324
(1) Genesis............................................................................................... 324
(2) Objects and Purposes of Confederation............................................ 339
C. Post-Confederation..................................................................................... 355
(1) Rupert’s Land.................................................................................... 355
(2) Post-Confederation Statutes – 1867-1870........................................ 360
(3) Aboriginal Population of the Northwest........................................... 369
(4) The Manitoba Act 1870/The Scrip System......................................... 385
D. Other Examples – Half-breeds and Section 91(24).................................... 423
(1) Adhesion to Treaty 3......................................................................... 424
(2) The Reserve and Industrial School at St. Paul de Métis................... 437
(3) Liquor Policy..................................................................................... 445
(4) “Half-Breeds” whose Ancestors took Scrip...................................... 453
(5) Other Examples of Jurisdiction over Non-Status Indians................. 459
E. Modern Era................................................................................................. 469
(1) Pre-Patriation..................................................................................... 469
(2) Post-Patriation................................................................................... 485
F. Treaties and Half-Breeds............................................................................ 513
X. Legal Analysis and Conclusions.......................................................................... 526
A. Section 91(24) - Métis and Non-Status Indians......................................... 526
(1) Introduction....................................................................................... 526
(2) Interpretation Principles..................................................................... 534
(3) Judicial Guidance.............................................................................. 545
B. Fiduciary Duty............................................................................................ 602
C. Duty to Negotiate....................................................................................... 610
XI. Costs.................................................................................................................... 618
XII. Conclusion........................................................................................................... 619
PHELAN J.
I. INTRODUCTION
[1] The critical question posed in this litigation is straightforward – Are non-status Indians and Métis [MNSI], identified as “Indians” under s 91(24) of the Constitution Act, 1867, 30 & 31 Victoria, c 3 (UK) [the Constitution]? Section 91(24) reads:
91. It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say,
…
24. Indians, and Lands reserved for the Indians.
91. Il sera loisible à la Reine, de l’avis et du consentement du Sénat et de la Chambre des Communes, de faire des lois pour la paix, l’ordre et le bon gouvernement du Canada, relativement à toutes les matières ne tombant pas dans les catégories de sujets par la présente loi exclusivement assignés aux législatures des provinces; mais, pour plus de garantie, sans toutefois restreindre la généralité des termes ci-haut employés dans le présent article, il est par la présente déclaré que (nonobstant toute disposition contraire énoncée dans la présente loi) l’autorité législative exclusive du parlement du Canada s’étend à toutes les matières tombant dans les catégories de sujets ci-dessous énumérés, savoir :
…
24. Les Indiens et les terres réservées pour les Indiens.
[2] The canvas over which the parties have painted the answer encompasses Canadian history virtually from the time of Champlain in Passamaquoddy Bay in 1603 to the present day. The reach of time and space makes this case a difficult one, not amenable to the same organization and analysis as has been the case with specific disputes over specific agreements or treaties affecting natives. However, for ease of organization, these Reasons generally follow a chronological framework.
[3] The Plaintiffs ask this Court to issue the following declarations:
(a) that Métis and non-status Indians are “Indians” within the meaning of the expression “Indians and lands reserved for Indians” in s 91(24) of the Constitution Act, 1867;
(b) that the Queen (in right of Canada) owes a fiduciary duty to Métis and non-status Indians as Aboriginal people;
(c) that the Métis 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.
[4] In brief and non-exhaustive summary, the Plaintiffs ground their claim on the following basis:
(a) the Métis people in Rupert’s Land and Northwest Territories were part of the peoples called “aborigines” and jurisdiction over them was transferred to the federal government. Thereafter, Métis were generally considered part of, although often distinct from, “Indians” and were treated as Indians in legislation and practice.
(b) non-status Indians are Indians to whom, from time to time, the Indian Act, RSC 1985, c I-5, did not apply but had either maternal or paternal ancestors who were Indians, or any person who self-identifies as an Indian and is mutually accepted by an Indian community, or branch or council of an Indian association or organization.
(c) that because of the federal government’s refusal to recognize Métis and non-status Indians as Indians pursuant to s 91(24), they have suffered deprivations and discrimination in the nature of: lack of access to health care, education and other benefits available to status Indians; lack of access to material and cultural benefits; being subjected to criminal prosecutions for exercising Aboriginal rights to hunt, trap, fish and gather on public lands; and being deprived of federal government negotiations on matters of Aboriginal rights and agreements.
[5] The Defendants’ resist the Plaintiffs’ claims on several grounds. The principal grounds are that no declaration can or should issue because there are insufficient facts and grounds for such relief; that Métis are not and were not either in fact or law or practice considered “Indians”; that there is no such group legally known as “non-status Indians”; that the allegations of deprivation and discrimination are denied and that the forms of relief required of rights to consultation and negotiations are either not available to Métis and non-status Indians or in any event, all legal obligations have been met.
[6] This matter came before this Court by way of an action for a declaration by the three individuals (Harry Daniels having died before the case was heard) and the organization named as Plaintiffs. The manner of bringing this case has been an issue between the parties even though the litigation was financed by the very government that opposes even the manner of proceeding.
[7] It is a definitional minefield to use terms such as “Indian” or “Aboriginal” when the purpose of the litigation is to provide some definition of those words which appear in different places and different contexts in the Constitution. The term “native” or “native people” is an effort to find a more neutral term for those first nations peoples and their descendants. In a somewhat similar fashion the Court has used the term “Euro-Canadian” to identify the non-native group of predominantly Caucasian persons fully recognizing that even this effort to avoid the colloquial term “white” is not entirely accurate.
[8] The parties have outlined a somewhat consistent history of early relations between firstly the French government and the native people and then between the British government and the native people particularly in eastern Canada. The parties’ respective perspectives start to drift apart with the lead up to Confederation and thereafter. While most of the actual events are not in dispute, their meaning and significance to the key issue in this case is strongly debated.
[9] The Plaintiffs’ case commenced with a review of the pre- and post-repatriation of the Constitution as it related to the native people. The evidence seemed designed to show the nature of the problem of this unresolved issue, its impact on the people most directly affected, the MNSI, and to some extent the alleged duplicitous dealings by Canada because of the recognition within government that Canada did indeed have jurisdiction over MNSI.
[10] The Plaintiffs’ case was made more difficult by the Defendants’ refusal to admit numerous documents which came from its own archives and departments introduced to show the manner in which these two groups were viewed by government and how these two groups were treated.
[11] It was a central theme of the Plaintiffs’ case that the historical evidence established that it was the purpose and intent of s 91(24) that non-status Indians (being by description Indians) and Métis were “Indians” and that following Confederation until at least the 1930s the federal government often treated many Métis groups as if they were “Indians” subject to federal jurisdiction. This, the Plaintiffs contend, was done in legislation, regulation and in the practices and policies of the federal government.
[12] The Defendants adopted a more traditional approach to the organization of the case in a chronological format. It was their position that:
(a) historical evidence and cases from the Supreme Court of Canada establish that the word “Indian” in s 91(24) was not meant to include the distinct peoples and communities known as the Métis.
(b) with respect to the question of non-status Indians, the Defendants say that legislation enacted under s 91(24) must draw a line between those who are considered Indians and those who are not. The Plaintiffs claim that trying to determine the natural limits of Parliament’s jurisdiction (absent actual or proposed legislation) is an impossible task.
[13] In these Reasons, the Court has dealt with the Defendants’ position that this is too difficult a case to decide, that the definitional difficulties of definition of who falls within the term “Indian” in s 91(24) should preclude a remedy. It is the Court’s view that there is a live, justiciable issue for which the difficulties, real or otherwise, cannot be a reason to deny people a remedy where appropriate. In general terms persons have a right to know who has jurisdiction over them and the adage “where there is a right, there is a remedy” is applicable.
[14] It is a central theme of the Defendants’ argument that this Court ought not to decide this matter because, in summary, it is a theoretical matter which will resolve nothing. The Defendants also urge the Court not to exercise its discretion to grant one or more of the declarations requested.
[15] The Defendants’ position is that none of the declarations will do anything but lead to further litigation. It is their thesis that what is at issue between the parties is alleged discrimination as between the treatment of MNSI and status Indians; a matter which should be resolved by Charter or human rights proceedings.
[16] A more complete review of the preliminary issues is canvassed in paragraphs 48-83.
[17] The Plaintiffs put great reliance on the “living tree” doctrine for a purposive approach to be progressively applied to the interpretation of s 91(24). They reject the historical approach said to be prevalent in such cases as in In the Matter of a Reference as to whether the Term “Indians” in Head 24 of Section 91 of the British North America Act, 1867, includes Eskimo Inhabitants of the Province of Quebec, [1939] SCR 104, [1939] 2 DLR 417 [In Re Eskimo Reference].
[18] The interpretative principles which the Court must apply to these historical facts is made more nuanced than the Plaintiffs concede by the Supreme Court of Canada’s comments in R v Blais, 2003 SCC 44, [2003] 2 SCR 236 [Blais], at paragraph 40, which suggests a limit on the “living tree”, a need to stay anchored in historical context and to avoid “after-the-fact largesse”.
40 This Court has consistently endorsed the living tree principle as a fundamental tenet of constitutional interpretation. Constitutional provisions are intended to provide “a continuing framework for the legitimate exercise of governmental power”: Hunter v. Southam Inc., [1984] 2 S.C.R. 145 , per Dickson J. (as he then was), at p. 155. But at the same time, this Court is not free to invent new obligations foreign to the original purpose of the provision at issue. The analysis must be anchored in the historical context of the provision. As emphasized above, we must heed Dickson J.’s admonition “not to overshoot the actual purpose of the right or freedom in question, but to recall that the Charter was not enacted in a vacuum, and must therefore ... be placed in its proper linguistic, philosophic and historical contexts”: Big M Drug Mart, supra, at p. 344; see Côté, supra, at p. 265. Dickson J. was speaking of the Charter, but his words apply equally to the task of interpreting the NRTA. Similarly, Binnie J. emphasized the need for attentiveness to context when he noted in R. v. Marshall, [1999] 3 S.C.R. 456, at para. 14, that “'[g]enerous' rules of interpretation should not be confused with a vague sense of after-the-fact largesse.” Again the statement, made with respect to the interpretation of a treaty, applies here.
II. COURT SUMMARY
[19] The Plaintiffs’ declaratory relief is for a determination of the meaning of a head of power under the Constitution Act, 1982, s 91(24) that the term “Indian”, as used in that head of power, encompasses Métis and non-status Indians. This is not a s 35 of the Constitution case nor the interpretation or application of particular rights either under the Constitution or under specific agreements, nor is it about Aboriginal rights.
[20] This is an appropriate circumstance and the Plaintiffs have sufficient standing for this Court to make a declaratory order. The declaration with respect to s 91(24) is granted; the other two declarations, ancillary in nature, are dismissed.
[21] The timeframe covered by this case commences with among the first interactions between French colonial government and Aboriginal people up to the very near past.
[22] During the colonial era, particularly the British colonial era, people of mixed European and native ancestry were largely considered as Indians. This was furthered by the colonial government’s attempt to grant status as Indians to natives – the first efforts at inclusion/exclusion notions through “marrying in – marrying out” provisions. Métis and others of mixed ancestry in the lands administered by the Hudson’s Bay Company were also generally classed as natives or Indians and often described as “half breeds”.
[23] With Confederation and the take over of responsibility for the lands and people in the areas of the Hudson’s Bay Company, it was important to have a broad power over those who were not part of Euro-Canadian society to facilitate expansion and development of the new country. A purposive approach to constitutional interpretation is mandated by the Supreme Court of Canada.
[24] In the absence of any record of debates or discussions concerning this Indian Power, the Court had to rely on what was done just before and for some period after Confederation to give context and meaning to the words of s 91(24).
[25] The evidence concerning non-status Indians establishes that such persons were considered within the broad class of “Indians”. The situation regarding Métis was more complex and in many instances including in the Red River area, Métis leadership rejected any inclusion of Métis as Indians. Nevertheless, Métis generally and over a greater area were often treated as Indians, experienced the same or similar limitations imposed by the federal government, and suffered the same burdens and discriminations. They were at least treated as a separate group within the broad class of “Indians”.
[26] In more recent times those deprivations have been acknowledged by the federal government:
The Métis and non-status Indian people, lacking even the protection of the Department of Indian Affairs and Northern Development, are far more exposed to discrimination and other social disabilities. It is true to say that in the absence of Federal initiative in this field they are the most disadvantaged of all Canadian citizens.
[27] In the same vein, the federal government had largely accepted the constitutional jurisdiction over non-status Indians and Métis until the mid 1980s when matters of policy and financial concerns changed that acceptance.
[28] Consistent with past Supreme Court decisions which taught towards a more inclusive interpretation of the term “Indian”, such interpretation must stand on its own neither undermined nor supported by s 35. A more inclusive interpretation is consistent with the evidence in this case and facilitates reconciliation with the broad group of native peoples and their descendants.
III. PARTIES
[29] The Plaintiffs consist of three individuals and one organization. Other than the declarations sought, which are to be applicable to all MNSI, the Plaintiffs seek no specific relief for themselves.
A. Gabriel Daniels
[30] Gabriel Daniels is the son of Harry Daniels (now deceased), an original Plaintiff in this action and a recognized advocate for Métis’ rights. While raised in Edmonton by his mother, he moved to Ottawa in 1997 to be with his father when he was the president of what is now the Congress of Aboriginal Peoples [CAP].
[31] Gabriel Daniels identifies himself as Métis, as did his father, mother and paternal and maternal grandmothers. He testified to his Métis cultural roots and involvement in Métis gatherings. He is a member of the Manitoba Métis Federation [MMF] and a past member of the Métis National of Alberta [MNA] and the Ontario Métis and Aboriginal Association [OMAA]. Both the MMF and MNA are affiliates of the Métis National Counsel (a split-off from CAP) while the OMAA is an affiliate of CAP.
[32] While identifying as a Métis, Gabriel Daniels spoke to his long involvement in First Nations’ activities including pow-wows, sweat lodges and round dances.
[33] Gabriel Daniels’ mother, in addition to identifying as a Métis, also applied for registered status under the Indian Act. The denial of that request by Indian and Northern Affairs Canada [INAC] is indicative of the complexity of the issue as to who is an Indian and whether Métis are Indians under s 91(24) and the historical problem of categorizing such people.
B. Leah Gardner
[34] Leah Gardner is a non-status Indian from Ontario. Her children are status Indian, as was her late husband. Her father acquired status as a result of s 6(2) amendments to the Indian Act known as Bill C-31 (An Act to Amend the Indian Act, SC 1985 c 27) [Bill C-31] because he had one parent entitled to registration under s 6(1) of the Indian Act.
[35] While Leah Gardner’s husband whom she married in 1972 is a status Indian under s 6(2) of the Indian Act, she was denied status because, as she explained, “section 6(2) of the Indian Act doesn’t provide for the registration of non-status wives of Indian men whose marriages took place prior to April 17, 1985. Only the wives of Indian men who are registered or entitled to be registered under section 6(1)(a) of the Act are eligible for registration.”
[36] Leah Gardner identifies herself as a Métis without status but prefers “Anishanabe without status” – Anishanabe being the Ojibway word for “the original people” or “people of the land”. She is active in the OMAA and other aboriginal organizations. She participates in both Métis and Anishinabe cultural events.
C. Terry Joudrey
[37] Terry Joudrey is a non-status Mi’kmaq Indian from Nova Scotia. He lives on the former New Germany reserve. Both his mother and his grandmother were status Indians but his father was not. He is a member of the Native Council of Nova Scotia and he uses his Aboriginal Treaty Rights Association card as if it was a licence to hunt and fish; activities he associates with native traditions.
D. The Minister of Indian Affairs and Northern Development
[38] The Defendant, the Minister of Indian Affairs and Northern Development has the powers, duties and functions including all matters of which Parliament has jurisdiction, not by law assigned to any other department, board or agency of the Government of Canada, relating to Indian Affairs.
E. The Attorney General of Canada
[39] The Attorney General of Canada is responsible for the regulation and conduct of all litigation for or against the Crown or any department, in respect of any subject within the authority or jurisdiction of Canada.
F. Congress of Aboriginal Peoples
[40] CAP is a body corporate that offers representation to Métis and non-Status Indians throughout Canada. Its objectives include “to advance on all occasions the … interest of the Aboriginal people of Canada and to co-ordinate their efforts for the purpose of promoting their common interests through collective action”.
[41] CAP has been involved in this litigation for approximately twelve (12) years. It claims to have spent over two million dollars to bring this case to trial.
[42] As indicated in the section “Discretion to Decide”, a somewhat unique feature of this litigation is that it has been principally funded by the federal government notwithstanding their numerous efforts to curtail this litigation.
[43] However, the federal government’s funding contribution should not be taken to undermine the pivotal role CAP played in advancing this claim – a role that few, if any, individuals falling within the group known as MNSI could do.
[44] CAP has played a key position in the modern day discussions between native groups and the federal government but it is not the only group to speak on behalf of the Métis.
[45] CAP (previously known as the Native Council of Canada or NCC - then sometimes confused with the National Capital Commission) had a serious internal dispute over Métis issues and representation.
[46] In March 1983, the prairie Métis either left or were expelled from the NCC and formed their own organization – the Métis National Council [MNC]. Thereafter, at the various constitutional discussions involving native issues, the MNC were present along with the NCC/CAP.
[47] Although the MNC were not involved in this litigation, the Court is cognizant of the fact that CAP is not the sole recognized voice of Métis.
IV. DISCRETION TO DECIDE
[48] It is a central theme of the Defendants’ argument that this Court ought not to decide this matter because, in summary, it is a theoretical matter which will not resolve anything. The Defendants urge the Court not to exercise its discretion to grant one or more of the declarations requested.
[49] The Defendants’ position is that none of the declarations will do anything but lead to further litigation. It is their thesis that what is at issue between the parties is alleged discrimination as between the treatment of MNSI and status Indians.
[50] This is not the first time that the Defendants have raised the issue of whether declaratory relief is appropriate. In the many years that this case has been in the Court system (since 1999), the Defendants have brought various proceedings to stop the action proceeding but without success.
[51] Having not succeeded in preventing this action going forward, the Defendants now ask the Court not to make any finding on the merits one way or the other but to simply decline to exercise jurisdiction to decide.
[52] A somewhat unique feature of this action is that, until the recent advance cost order, it has been funded under the Test Case Funding Program [TCFP] administered by the federal government. The TCFP was created to fund important native-related test cases that had the potential to create judicial precedent.
[53] The Defendants’ first point is that the first declaration will not resolve the real dispute between the parties because at best it would provoke further litigation or at worse cause confusion. The further litigation is said to be some claim of discrimination between MNSI and status Indians either under s 15 of the Constitution Act, 1982, 1982, c 11 (UK) Schedule B (Charter) or s 35 of the Constitution Act, 1982.
[54] The principal issue in this action is whether the federal government has jurisdiction to make laws in respect of MNSI under s 91(24) of the Constitution Act, 1867 because they are “Indians”. The other two declarations flow from the answer to the first issue.
[55] The record in this action is replete with references to the dispute as to jurisdiction over MNSI and with reasons why the federal government has sometimes taken the position that it does not have such jurisdiction under s 91(24). It should be noted here, that at other times, federal officials acknowledged that the federal government had such jurisdiction even where it did not wish to exercise it.
[56] As early as 1905, Ontario and Canada exchanged correspondence over which level of government was responsible for addressing the claims of half-breeds in respect of Treaty 9. A similar exchange arose in 1930 between Alberta and Canada concerning responsibility for indigent half-breeds with Saskatchewan calling on the federal government to address their needs as “part and parcel of the Indian problem”.
[57] There is a real live jurisdictional issue which has been recognized by the Royal Commission on Aboriginal People [RCAP] in its calling for the federal government to bring a reference, particularly in respect of Métis, to decide whether s 91(24) applies to Métis people.
[58] Government documents destined to Cabinet assessing RCAP recommendations concluded that it would be premature to embrace RCAP’s recommendation to negotiate Métis claims absent a court decision on, amongst others, the division of federal-provincial liability.
[59] In the absence of any such reference or other proceeding, the Plaintiffs have sought a declaration along the same lines as the RCAP recommendation.
[60] Justice Hugessen summarized the three basic requirements for obtaining declaratory relief and concluded that they had been met. As Justice Hugessen said in respect of one of the Defendants’ motions to dismiss this action:
6 The fact that the government has the power to raise the same issues which come up in this case and to raise them by way of a reference does not mean that those issues cannot come before the Court in some other way. In my view, the present action is precisely such another way and is legitimate.
7 The classic three requirements in this and I think in every other Court for obtaining declaratory relief are:
1. That plaintiff has an interest
2. That there be a serious contradictor for the claim.
3. That the issue raised and upon which a declaration is sought is a real and serious one and not merely hypothetical or academic. (Montana Band of Indians v. Canada, [1991] 2 F.C. 30 (C.A.), leave to appeal to S.C.C. refused (1991), [1991] S.C.C.A. No. 164, 136 N.R. 421 n).
8 In my opinion it is certainly not beyond question that those requirements have not been met in the present case. Indeed, I think that they are all met and satisfied.
Daniels v Canada (Minister of Indian Affairs and Northern Development), 2008 FC 823 at paras 6-8, 169 ACWS (3d) 1012 [Daniels]
[61] Justice Hugessen’s summary is in accord with the following from Canada v Solosky, [1980] 1 SCR 821 at paras 11-13, 105 DLR (3d) 745:
Declaratory relief is a remedy neither constrained by form nor bounded by substantive content, which avails persons sharing a legal relationship, in respect of which a 'real issue' concerning the relative interests of each has been raised and falls to be determined.
The principles which guide the court in exercising jurisdiction to grant declarations have been stated time and again. In the early case of Russian Commercial and Industrial Bank v. British Bank for Foreign Trade Ltd. [ [1921] 2 A.C. 438], in which parties to a contract sought assistance in construing it, the Court affirmed that declarations can be granted where real, rather than fictitious or academic, issues are raised. Lord Dunedin set out this test (at p. 448):
The question must be a real and not a theoretical question, the person raising it must have a real interest to raise it, he must be able to secure a proper contradictor, that is to say, someone presently existing who has a true interest to oppose the declaration sought.
In Pyx Granite Co. Ltd. v. Ministry of Housing and Local Government [[1958] 1 Q.B. 554], (rev'd [1960] A.C. 260, on other grounds), Lord Denning described the declaration in these general terms (p. 571):
... if a substantial question exists which one person has a real interest to raise, and the other to oppose, then the court has a discretion to resolve it by a declaration, which it will exercise if there is good reason for so doing.
[62] The Trial Record’s Amended Statement of Claim raises discrimination under s 15 of the Charter and s 35 of the Constitution Act, 1982 but in the context of denial of jurisdiction and refusal or failure to consult in good faith.
[63] The Plaintiffs’ prayer for relief makes no reference to discrimination or grounds for a remedy in the usual nature for a discrimination case.
[64] The Defendants have tried to cast the Plaintiffs’ case as one of discrimination, the subject of a s 15 proceeding or a question of federal spending power to extend programs and services. However, this is the Plaintiffs’ case to frame and it has chosen not to frame it as the Defendants would wish it..
[65] The first declaration will resolve the immediate dispute over jurisdiction. Whether such resolution leads to further litigation or possible political pressure is not a grounds for refusing to hear this matter. The Plaintiffs are not claiming a right to specific legislation or access to specific programs.
[66] It is an accepted right that a plaintiff may frame the action (subject to various rules of pleading) as it wishes. It is not for the Defendants to tell the Plaintiffs what their case is or should be.
[67] The Defendants also argue that these declarations are being advanced in a factual vacuum. The Defendants are correct that there must be a factual foundation upon which to base a determination of rights (see Kitkatla Band v British Columbia (Minister of Small Business, Tourism and Culture), 2002 SCC 31, [2002] 2 SCR 146; R v Edwards Books and Art Ltd, [1986] 2 SCR 713, 35 DLR (4th) 1).
[68] While people per se rather than the subject matter do not fall in or out of the division of powers, the Plaintiffs assert the right for MNSI to be included as Indians under s 91(24) and subject to the exclusive jurisdiction of the federal government to make laws in relation to them. The nature of s 91(24) is to confer jurisdiction over a specific group of people. In that regard, it is different than most other powers conferred to either the federal or provincial governments under the Constitution.
[69] It is no answer for the Defendants to say that a case such as this cannot be brought because there is no federal legislation against which to assert an action. There is no such legislation because the federal government denies jurisdiction over MNSI. This is a classic Catch-22 situation. It is a situation for which the declaration proceeding is well-suited to resolve.
[70] It is difficult to sustain any argument that there is a factual vacuum in a case with more than six weeks of evidence, much of it expert and profoundly historical, encompassing approximately 800 exhibits (with few, if any, single page exhibits) extracted from over 15,000 documents. The sweep of the historical evidence ranged from first contact with North American natives to very current Aboriginal-federal government negotiations.
[71] In many regards the type of evidence in this action is similar and sometimes identical to that of Manitoba Métis Federation Inc v Canada (Attorney General), 2010 MBCA 71, [2010] 3 CNLR 233, both at the trial and appellate levels. The type of evidence is also similar in many respects to that in Blais, above.
[72] The Defendants argue that this action cannot result in a duty to legislate even if the defined people fall within s 91(24) (see Reference Re Canada Assistance Plan (B.C.), [1991] 2 SCR 525, 83 DLR (4th) 297). The Plaintiffs have not sought any order suggesting a duty to legislate or to have access to specific programs; they seek to know whether they fall within that class of people in respect of whom Canada has the exclusive jurisdiction to make laws.
[73] Any uncertainty about provincial laws such as Alberta’s Metis Settlements Act, RSA 2000, c M-14, can only be removed by a decision on the issue raised whether the Métis are Indians for purposes of s 91(24). The legitimacy of the Alberta legislation does not necessarily preclude federal jurisdiction to legislate in respect of Métis.
[74] There is no question that there are certain definitional difficulties in this action but there is evidence that this can be resolved. Further, the Supreme Court in R v Powley, 2003 SCC 43, [2003] 2 SCR 207 [Powley], dealing with who are Métis, held that difficulties of definition are not to be exaggerated as a basis for defeating constitutional rights. The principle is particularly apt in this action. Should difficult cases be a grounds for not deciding, and this case has more than enough difficulties, the courts would not be carrying out their constitutional obligations as courts to decide real legal disputes.
[75] The Court has addressed the issue that s 15 of the Charter is a better and more appropriate way to proceed. Given the decision in Lovelace v Ontario, 2000 SCC 37, [2000] 1 SCR 950 [Lovelace] and Alberta (Aboriginal Affairs and Northern Development) v Cunningham, 2011 SCC 37, [2011] 2 SCR 670 [Cunningham], there may be significant doubt as to the availability of that remedy.
[76] The Defendants also contend that this action is tantamount to an impermissible private reference. Justice Hugessen has addressed that point fully in Daniels, above, at paragraph 6 of his decision.
[77] In addition to the above forming the grounds to reject the Defendants’ arguments not to decide, there are additional factors which assist in