Docket: T1340/7008 CANADIAN HUMAN RIGHTS TRIBUNAL BETWEEN: FIRST NATIONS CHILD AND FAMILY CARING SOCIETY OF CANADA and ASSEMBLY OF FIRST NATIONS Complainants - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - ATTORNEY GENERAL OF CANADA (representing the Minister of Indigenous and Northern Affairs Canada) Respondent - and - CHIEFS OF ONTARIO and AMNESTY INTERNATIONAL CANADA and NISHNAWBE ASKI NATION Interested Parties AFFIDAVIT OF GRAND CHIEF JOEL ABRAM I, Joel Abram, of the Oneida Nation settlement in Ontario, DO SOLEMNLY AFFIRM: 1. I am Grand Chief of the Association of Iroquois and Allied Indians (AIAI), and the Social Services portfolio holder appointed by the Political Confederacy of Chiefs of Ontario, and therefore I have knowledge of the contents of this affidavit. Where I do not have direct knowledge, I have identified the person from whom I obtained the information in the affidavit, and believe it to be true.
Transcript
Docket: T1340/7008
CANADIAN HUMAN RIGHTS TRIBUNAL
BETWEEN:
FIRST NATIONS CHILD AND FAMILY CARING SOCIETY OF CANADA and ASSEMBLY OF FIRST NATIONS
Complainants
- and -
CANADIAN HUMAN RIGHTS COMMISSION
Commission
- and -
ATTORNEY GENERAL OF CANADA (representing the Minister of Indigenous and Northern Affairs Canada)
Respondent
- and -
CHIEFS OF ONTARIO and AMNESTY INTERNATIONAL CANADA and NISHNAWBE ASKI NATION
Interested Parties
AFFIDAVIT OF GRAND CHIEF JOEL ABRAM
I, Joel Abram, of the Oneida Nation settlement in Ontario, DO SOLEMNLY AFFIRM:
1. I am Grand Chief of the Association of Iroquois and Allied Indians (AIAI), and the Social
Services portfolio holder appointed by the Political Confederacy of Chiefs of Ontario,
and therefore I have knowledge of the contents of this affidavit. Where I do not have
direct knowledge, I have identified the person from whom I obtained the information in
the affidavit, and believe it to be true.
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2. I have been the Social Services portfolio holder for Chiefs of Ontario since 2017. Prior to
that, the then-Deputy Grand Chief of AIAI, who is now Chief of Delaware Nation of the
Thames, Denise Stonefish, held the Social Services portfolio.
3. As the Social Services portfolio holder, I am apprised of matters relating to this case, as
well as implementation of the decisions of the Canadian Human Rights Tribunal (CHRT).
I actively partake in discussions relating to implementation of the CHRT orders with
Chiefs of Ontario staff, the Social Services Coordination Unit, and the Chiefs’ Committee
on Social Services.
4. The Social Services Coordination Unit and Chiefs’ Committee on Social Services are
composed of representatives from the various political-territorial organizations in
Ontario and some of the independent First Nations: Anishinabek Nation, Nishnawbe
Aski Nation, Grand Council Treaty 3, AIAI, Six Nations, Independent First Nations,
Akwesasne, and Temagami First Nation.
ACCESS TO CAPITAL AND INFRASTRUCTURE FUNDING FOR FIRST NATIONS FOR PREVENTION
AND BAND REPRESENTATIVE SERVICES
5. In other provinces, funding to provide child welfare prevention services from the
Government of Canada has been directed to First Nations Child and Family Services
Agencies. The First Nations in Ontario are actively pursuing a funding and service
delivery model that allows First Nations to deliver prevention services to their citizens,
which we expect will be reflected in the recommendations of the forthcoming Ontario
Special Study.
6. With respect to “immediate relief” funding that has been provided by Canada under
Budget 2016 and Budget 2018, Chiefs of Ontario have directed the Government of
Canada to provide these funds directly to First Nations in Ontario. This decision came
about through the consideration of the Social Services Coordination Unit, and is
reflected by numerous Chiefs of Ontario resolutions of the Chiefs in Assembly and/or
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decisions of the Political Confederacy of the Chiefs of Ontario on the subject of the
allocation of funding.
7. Ontario First Nations are directly engaged in providing prevention and Band
Representative services to their First Nations citizens. This growth in programming has
not been matched with support for capital and infrastructure. This work requires space
for program operation and administration, secure records storage, intake, community
gatherings, education, and other purposes. First Nations need adequate space in their
territories to provide services that meet their specific cultural needs (for example, in my
community, Oneida Nation, some of our child and family work occurs in the long-house).
The growth in programming has put pressure on the already overburdened capital and
infrastructure of Ontario First Nations.
8. Unlike First Nations Child and Family Service Agencies, First Nations in Ontario do not
receive funding “at actuals” for prevention services or building repairs under any CHRT
orders (I understand that Agencies do have access to funding “at actuals” for these
areas because of the CHRT’s February 2, 2018 order). Access to supports to meet capital
and infrastructure needs for prevention and Band Representative services is essential to
ensure that Ontario First Nations have an equal opportunity with First Nations Agencies
to provide support to their children and families within the community according to
each First Nations’ unique culture, needs, and aspirations.
9. The funding available to First Nations providing prevention services is the funding
provided by Canada under Budgets 2016 and 2018, which is subject to the “Terms and
Conditions” document released by Indigenous Services Canada on January 18, 2019. The
funding under the CHRT’s February 2, 2018 Ontario-specific orders for Band
Representative Services and Child and Youth Mental Health Services are also subject to
the “Terms and Conditions” document.
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CITIZENSHIP 10. The Chiefs in Assembly (all of the Chiefs of First Nations in Ontario) have made
numerous resolutions supporting First Nations’ inherent rights to self-determine and
self-govern in the area of citizenship. Attached to my affidavit as Exhibit “A” are copies
of such resolutions.
11. Chiefs of Ontario’s position is that the right to decide citizenship of a First Nation is a
matter for each First Nation to determine, under its own laws. It is not a matter for the
Chiefs of Ontario to decide.
12. Chiefs of Ontario made submissions in the case of Daniels at the Supreme Court of
Canada, on the subject of whether non-status First Nations people fall within the
jurisdiction of the federal government under section 91(24) of the Constitution.
Attached as Exhibit “B” is a copy of our written submissions in that case.
13. Despite repeated calls from First Nations to have the Canadian government recognize
First Nations’ authority and jurisdiction to determine our citizenship (and to fund First
Nations on the basis of that citizenship, as opposed to the membership numbers
determined under the Indian Act), those calls have gone unrecognized by Canada.
14. Canada currently recognizes two ways of determining citizenship of First Nations: (1)
through Indian Act registration and band membership as assigned by Indigenous
Services Canada; (2) through custom membership codes which are enabled through
section 10 the Indian Act, where “Band Membership” can be determined by First
Nations themselves, subject to conditions in the Indian Act.
15. Some Ontario First Nations or groups of First Nations have undertaken work to enact
their own citizenship laws outside of the Indian Act process. For instance, the
Anishinabek Nation, is developing citizenship laws according to the Anishinabek First
Nations’ own jurisdiction. I understand from Grand Chief Glen Hare, and believe to be
true, that the Anishinabek Nation leadership expects that their citizenship laws will be
recognized by Canada and Ontario.
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 (Respondents) - and-
HER MAJESTY THE QUEEN as represented by THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT
and THE ATTORNEY GENERAL OF CANADA Respondents (Appellants)
- and-
ATTORNEY GENERAL OF SASKATCHEWAN, ATTORNEY GENERAL OF ALBERTA, NATIVE COUNCIL OF NOVA SCOTIA, NEW BRUNSWICK
ABORIGINAL PEOPLES COUNCIL AND NATIVE COUNCIL OF PRINCE EDWARD ISLAND, METIS SETTLEMENTS GENERAL COUNCIL, TE'MEXW TREATY
ASSOCIATION, METIS FEDERATION OF CANADA, ASENIWUCHE WINEW AK NATION, CHIEFS OF ONTARIO, GIFT LAKE METIS SETTLEMENT, NATIVE ALLIANCE OF QUEBEC, ASSEMBLY OF FIRST NATIONS, METIS NATIONAL
Agent for the Intervener, Aseniwuche Winewak Nation
PART I - STATEMENT OF FACTS RELEVANT TO THE ISSUE TO INTERVENE
A. Overview of Position
1. Chiefs of Ontario ("COO"), representing First Nations in Ontario who are
successors to the nation-to-nation relationship forged at the Treaty of Niagara in 1764,
urge this Court to adopt an interpretation of s. 91(24), which renews this relationship.
Aboriginal peoples, whether First Nation, Inuit or Metis, are partners in Confederation and
possess a unique political relationship with the Crown. From the First Nation perspective,
the legislative authority over "Indians" as set out in s. 91 (24) Constitution Act, 18671 has
been used to attempt to dismember First Nations as "peoples", and to erode this founding
relationship. The imposition of a race based definition of "Indians" in the Indian Act,
assimilation policies and Indian Residential Schools, has resulted in social, cultural and
economic devastation in First Nation communities.
2. In order to correct this historical injustice s. 91(24) should be interpreted in a
manner which gives a generous meaning to the word 'peoples' as set out in s. 35(1)
Constitution Act, 19822. This includes incorporating principles of honour, consultation,
consent, reconciliation, and an acknowledgment of the continuing nation-to-nation
relationship between Aboriginal peoples and the federal Crown.
B. Statement of Facts
3. COO take no position with respect to the facts.
PART II - STATEMENT OF POSITION WITH RESPECT TO APPELLANTS' QUESTIONS
4. The issue before the Court is whether the term "Indians" in s. 91(24) of the
Constitution Act, 1867 includes Metis and non-status Indians. However, COO wish to
recast the issue in terms of the appropriate analytical framework for determining
constitutional jurisdiction in s. 91(24), which COO submits must now include s.35 of the
Constitution Act, 1982 and the principle of reconciliation.
1 Constitution Act, 1867 (UK), 30 & 31 Vict., c. 3, s. 91(24), reprinted in RSC 1985, App. II, No.5. 2 Constitution Act, 1982, s. 35(1), being Schedule B to the Canada Act 1982 (UK), 1982, c. 11. ["Constitution Ad']
2
PART Ill- STATEMENT OF ARGUMENT
A. Unfettered Exercise of Federal Authority under Section 91(24) has Resulted in Assimilationist Policies
5. Section 91(24) of the Constitution Act, 1867 provides authority to Parliament to
legislate "in relation" to "Indians, and Lands reserved for the Indians". The unfettered
exercise of this authority has given rise to various pieces of legislation the most notorious
of which is the Indian Act3 -- legislation that governs virtually every aspect of First
Nations, including defining who is an "Indian,,4. As noted by the Royal Commission on
Aboriginal Peoples, Crown officials have acknowledged the Indian Act's limitations5 as a
framework for relations with First Nations who themselves consider the legislation as
inherently paternalistic and oppressive. 6
6. Section 91(24) has been fatally interpreted as granting authority to make race-based
classifications regarding Indians,7 rather than legislating "in relation" to Indians as
"peoples",8 with pre-existing rights of self-determination. This unilateral interpretation of
the term "Indians" in the Indian Act has led to the development of assimilationist policies
and programs including Indian Residential Schools, which were intended to, "continue until
there is not a single Indian in Canada that has not been absorbed into the body politic.,,9
The results for Canada and First Nations peoples in particular have been devastating 10 and
3 Indian Act, RSC, 1985, c. 1-5. ["Indian Act"] 4 Indian Act, s. 2 "Indian". 5 Canada. Royal Commission on Aboriginal Peoples. Report of the Royal Commission onAboriginal Peoples, Vol. I: Looking Forward, Looking Back (Ottawa, ON: Minister of Supply and Services Canada, 1996), Part Two: False Assumptions and a Failed Relationship, Chp. 9: The Indian Act at pg. 319. 6 R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433 at para. 60. 7 Attorney General of Canada, et al v. Canard, [1976] 1 S.c.R. 170 at p. 207. ["Canard'] 8 Canada. Parliament. House of Commons. Special Committee on Indian Self-Government. Indian SelfGovernment in Canada (Ottawa: Published under authority of the Speaker of the House of Commons by the Queen's Printer for Canada, 1983) ["Penner Report"], supported recognition ofIndian self-govermnent and a mechanism for recognition. 9 Duncan Campbell Scott, Testimony before the Special Committee ofthe House of Commons examining the Indian Act amendments of 1920, quoted in John Leslie, Historical Development of the Indian Act, 2d ed. (Ottawa: Department ofIndian Affairs and Northern Development, Treaties and Historical Research Branch, 1978) at pg. 114. 10 Calder et al v. Attorney-General of British Columbia, [1973] S.C.R. 313 at p. 346. ["Calder"] See also, Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconcilingfor the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada (Winnipeg: Truth and Reconciliation Commission of Canada, 2015) at pg. 183:
"The legacy of residential schools] is reflected in the intense racism some people harbour against Aboriginal people and in the systemic and other forms of discrimination Aboriginal people
3
as observed by The Truth and Reconciliation Commission's Summary Report, "may be
perpetuated and even worsened as a result of current governmental policies." 1 1
B. Section 91(24) Power must now be Reconciled with Section 35: Meaning and Scope of the Terms "Indians" and "Peoples"
7. This Court is being asked to define the scope of the tenn "Indians" in 91(24)Y
We submit that this requires consideration of s. 35 of the Constitution Act, 1982. As this
Court stated in Sparrow:
Federal legislative powers continue, including, of course, the right to legislate with respect to Indians pursuant to s. 91(24) of the Constitution Act, 1867. These powers must, however, now be read together with s. 35(1). In other words, federal power must be reconciled with federal duty and the best way to achieve that reconciliation is to demand the justification of any government regulation that infringes upon or denies aboriginal rights. 13
COO submit that this aspect of the principle of reconciliation is more broadly applicable
to the exercise of federal powers under s. 91(24) (as well as provincial powers), not just
aboriginal hunting and fishing rights.
8. The scope of s. 91(24) also requires consideration of the broad constitutional
interpretative principles that apply to Canada's constitution more generally, and s. 91(24)
in particular. 14 As this Court wrote in R. v. Van der Peet: "Because of this fiduciary
relationship, and its implication of the honour of the Crown, treaties, s. 35(1) , and other·
statutory and constitutional provisions protecting the interests of aboriginal peoples, must
be given a generous and liberal interpretation: R. v. George, [1966] S.C.R. 267, at p.
279.,,15
regularly experience in this country." 11 Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconcilingfor the Future: Summary of the Final Report of the Truth and Reconciliation Commission of Canada (Winnipeg: Truth and Reconciliation Commission of Canada, 2015) atp. 185. 12 R. v. Blais, 2003 SCC 44, [2003] 2 S.C.R 236 at para. 36. The Courts, to date, have not addressed the limits of the federal government's jurisdiction over "Indians" and "Lands Reserved for Indians" and therefore the scope of s. 91(24) is relatively unknown. The Supreme Court recognized this in Delgamuukw v. British Columbia, [1997] 3 S.C.R 1010 at p. 1118 where the Court stated "The extent offederal jurisdiction over Indians has not been definitively addressed by this Court" ["Delgamuukw"], 13 R. v. Sparrow, [1990] 1 S.C.R 1075 atp. 1109. ["Sparrow"] 14 Manitoba Metis Federation Inc. v. Canada (Attorney Genera!), [2013] 1 S.C.R 623 at para 77: " ... honour of the Crown demands that constitutional obligations to Aboriginal peoples be given a broad, purposive interpretation." ["MMF'] 15 R. v. Van der Peet, [1996] 2 S.C.R 507 at p. 536-537. ["Van der Peer]
4
9. Section 91 (24) of the Constitution Act 1867, should be interpreted in manner
which is in harmony with a purposive interpretation16 of the word "peoples" in s. 35(1) of
the Constitution Act, 1982. That subsection provides that, "[t]he existing aboriginal and
treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed".
And s. 35(2) defines "aboriginal peoples of Canada" to include "the Indian, Inuit and
Metis peoples of Canada"Y "Peoples" has a distinctive meaning under s. 35, not as an
individuated race based concept,18 but as a category which denotes political collectives
who are "partners in confederation" according to the Royal Commission on Aboriginal
Peoples. 19 Indeed, modern jurisprudence also supports the approach of defining the term
"Indians" in a manner consistent with the concept of "peoples", because the
jurisprudential foundations of Aboriginal and treaty rights acknowledge the collective
nature of those rights and their source in pre-existing organized societies and their legal
traditions.2o
10. "Indians", as "Aboriginal peoples", whether they are First Nation, Inuit or Metis
peoples, must be regarded as political collectivities. As the Supreme Court wrote in R. v.
Powley: "The term "Metis" in s. 35 does not encompass all individuals with mixed Indian
and European heritage; rather, it refers to distinctive peoples who, in addition to their
mixed ancestry, developed their own customs, way of life, and recognizable group identity
separate from their Indian or Inuit and European forebears. 21 Likewise, "Indians" under s.
35(1) should not be constitutionally categorized by ethnicity but by their collective
political existence, despite past race-based interpretations of s. 91(24). In this respect
Aboriginal peoples under sections 91(24) and 35(1) should be regarded as part of the
growth of Canada's living tree. 22
16 Sparrow, p. 1106. 17 Constitution Act, s. 35(2). 18 Canada (Indian Affairs) v. Daniels, 2014 FCA 101 at para. 94-95; MMF, para. 77; R. v. Sioui, [1990] 1 S.C.R. 1025 at p. 1038 ["Siout']; R. v. Powley, 2003 SCC 43, [2003] 2 S.C.R. 207 at para. 11 ["Powley"]. 19 Canada. Royal Commission on Aboriginal Peoples. Partners in Confederation: aboriginal peoples, selfgovernment and the Constitution (Ottawa, ON: Royal Commission on Aboriginal Peoples, 1993). 20 Van der Peet, p. 546-547; Delgamuukw, p. 1082-1083; Tsilhqot'in Nation v. British Columbia, 2014 SCC 44, [2014] 2 S.C.R. 256 at para. 74-75 ["Tsilhqot'in"]; Behn v. Moulton Contracting Ltd., 2013 SCC 26, [2013] 2 S.c.R. 227 at para. 30; Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53, [2010] 3 S.C.R. 103 at para. 35. 21 Powley, para. 10. 22 John Borrows, "(Ab )Originalism and Canada's Constitution" (2012) 58 S.C.L.R. (2d) 351 at pg. 352.
5
11. The Constitution as a living tree must accommodate the realities of contemporary
Canadian life,23 particularly so when interpreting the heads of power enumerated in
sections 91 and 92 of the Constitution Act, 1867.24 Professor Borrows has written that,
"Originalism's place in Canadian constitutional law is incongruous.,,25 Originalism
contrasts with the living tree analogy which, "has become the dominant form of analysis
in determining the Constitution's meaning ... [because] this approach allows the Court to
look beyond historical understandings of a provision and give it meaning in the light of
contemporary circumstances.,,26
12. COO urges this Court to reject "originalist" race-based categorizations of
"Indians" and "Aboriginal peoples" as being inconsistent with Canada's Constitution. As
Professor Borrows has noted in Canada's Indigenous Constitution,27 the view finds
support in the Report of the Royal Commission on Aboriginal Peoples:
Aboriginal peoples are not racial groups; they are organic political and cultural entities. Although contemporary Aboriginal peoples stem historically from the original peoples of North America, they often have mixed genetic heritages and include individuals of varied ancestries. As organic political entities, they have the capacity to evolve over time and change in their internal composition .... Only when Aboriginal peoples are viewed, not as "races" within the boundaries of a legitimate state, but as distinct political communities with recognizable claims for collective rights, will there be a first and meaningful step towards responding to Aboriginal peoples' challenge to achieve self-government, citing Royal Commission on Aboriginal Peoples, Restructuring the Relationship, Vol. 2 (Ottawa: Supply and Services, 1996), Chapter 3, pg. 166.
c. "Indians" as "Peoples": Renewal ofthe Nation-to-Nation Relationship
13. COO submits that s. 91(24) should not be interpreted in a race-based manner,
which was characteristic of colonial and post-colonial assimilationist context. It must be
viewed in light of the renewed nation-to-nation relationship between the Crown and
23 Reference re Same-Sex Marriage, 2004 SCC 79, [2004] 3 S.C.R. 698 at para. 22. ["Same-Sex Marriage"] 24 Same-Sex Marriage, para. 22. 25 John Borrows, "(Ab)Originaiism and Canada's Constitution", pg. 359. 26 John Borrows, "(Ab)Originaiism and Canada's Constitution", pg. 354-355, see also, Same-Sex Marriage, para. 22, 30; Reference re Meaning of Word "Persons" in Section 24 of the British North America Act, 1867, [1928] S.C.R. 276, [1928] 4 D.L.R. 98, rev'd [1930] A.C. 124, [1930] 1 D.L.R. 98, [1929] 3 W.W.R. 479, sub nom. Edwards, et al v. AG Can, et al., at para. 44; Sparrow, p. 1106. 27 John Borrows, Canada's Indigenous Constitution (Toronto: University of Toronto Press, 2010) at pg. 157-158.
6
Aboriginal peoples, in a manner which engages both the honour of the Crown and the
principles of reconciliation.28 For First Nations peoples in what is now Ontario, this
nation-to-nation relationship with the Crown was given its greatest expression, in what the
Ontario Court of Appeal in the Chippewas of Sarnia case, called a "watershed event" at
the Treaty of Niagara in 1764. The relationship is depicted by wampum belts where
British and Native peoples linked arms together in peace, friendship and respect. 29 These
agreements were formed by and with "peoples". This relationship continues today and
should inform the meaning ofs. 91(24).
14. Self-determination is fundamental to "peoples" because it enables them to
determine group membership and create rules "in relation" to federal power under sections
91(24) and 35 of Canada's Constitution, just as the federal Crown can legislate 'in
relation' to "Indians" under section 91(24), in a manner grounded by the principles of
reconciliation. 30
15. As the Supreme Court observed in R. v. Sioui: "Indian nations were regarded in
their relations with the European nations which occupied North America as independent
nations.,,31 While treaties and Confederation bound Indians and the Crown together in an
interdependent relationship,32 Aboriginal peoples continue to possess the ability to make
political (not race-based33) decisions concerning their composition as collectivities, as an
28 Chippewas ofSarnia Bandv. Canada (Attorney General), 51 OR (3d) 641, [2000] OJ. No. 4804 at para. 56 ["Chippewas"]; see also, John Borrows, Recovering Canada: The Resurgence of Indigenous Law (Toronto: University of Toronto Press, 2002) at pg. 125:
[T]he joint participation and consent of the Crown and Aboriginal peoples at the Treaty of Niagara created a pattern to follow in constituting their relations based upon principles that included the recognition of Aboriginal governance, land holdings, open migration, free trade military assistance and peace and friendship.
29 Chippewas, para. 48-65; John Borrows, "Constitutional Law from a First Nation Perspective: SelfGovernment and the Royal Proclamation" (1994) 28 u.B.C. L. Rev. 1-47; Alan Ojiig Corbiere, "Their own forms of which they take the most notice: Diplomatic metaphors and symbolism on wampum belts", Anishinaabewin Niiwin, Four Winds Rising (M'Chigeeng: Ojibwe Cultural Foundation, 2014) at 47-64. 30 Royal Proclamation, 1763, R.S.C. 1985, App.II, No.1; Chippewas, para. 56; United Nations Declaration on the Rights of Indigenous Peoples, GARes. 61/295 (Annex), UN GAOR, 61st Sess., Supp. No. 49, Vol. III, UN Doc. Al61149 (2008) 15, Art. 3. ["UNDRIP"]; see also, John Borrows, "Wampum at Niagara: The Royal Proclamation, Canadian Legal History, and Self-Government", in Aboriginal and Treaty Rights in Canada, ed. Michael Asch (Vancouver: UBC Press, 1997), Chp. 6. 31 Sioui, p. 1053. 32 John Borrows, Recovering Canada: The Resurgence of Indigenous Law (Toronto: University of Toronto Press, 2002) at pgs. 148-153. 33 Indigenous powers of self-determination should be regarded as political and not racial classifications, see Morton v. Mancari, 417 U.S. 535 (1974) at pp. 536, 541-542, 550, 553-554.
7
exercise of self-government within a larger constitutional structure. 34
16. The process for recognizing "Aboriginal peoples" as part of s. 91(24) should be
based on a view which is reflective of both the Crown and Aboriginal peoples own
perspectives and is in keeping with the principles of international law. 35 Casting
"Indians" as a race-based concept36 is a wholesale disregard of historical realities and the
unique political relationship that exists between the Crown and Aboriginal peoples. 37
17. Moreover, the interpretation of the term "Indians" in s.91(24) must include
acknowledgement ofthe importance of the Aboriginal perspective:
From the Aboriginal perspective, the federal-provincial divisions that the Crown has imposed on itself are internal to itself and do not alter the basic structure of sovereign-Indian relations which is premised on a nation-to-nation relationship.38
As the Supreme Court wrote in R. v. Sparrow: " ... it is crucial to be sensitive to the
aboriginal perspective itself on the meaning of the rights at stake.,,39
18. Regardless of composition, Aboriginal peoples are constitutional entities with
political autonomy in regard to their membership.40 Therefore, we submit the term
"Indian" cannot be unilaterally defined by the federal Crown; and the legislative authority
in s. 91 (24) "in relation" to "Indians,,41 must be exercised with respect to the constitutional
. . 1 f h 42 I' 43 44 '1" 45 d h h' . I d prmclp es 0 onour, consu tatlOn ,consent, reconcl mtlOn, an t e lstonca an
contemporary nature of the nation-to-nation relationship.
34 Brian Slattery, "First Nations and the Constitution: A Question ofTrnst" (1992) Canadian Bar Review, Vol. 71, p. 279 ["Slattery"] citing Calder, p. 548-549 at footnote 63 (Emphasis supplied by Lamer J.) "such was the policy of Great Britain towards the Indian nations inhabiting the territory from which she excluded all other Europeans; such her claims, and such her practical exposition ofthe charters she had granted: she considered them as nations capable of maintaining the relations of peace and war; of governing themselves, under her protection; and she made treaties with them, the obligation of which she acknowledged." 35 UNDRIP, Art. 3 and Art. 18; Reference re Secession of Quebec, [1998] 2 S.C.R. 217 at para. 234-235. 36 Canard, p. 207. 37 Mitchell v. Peguis Indian Band, [1990] 2 S.C.R. 85 at pg. 108. 38 Campbell et al v. AG BClAG Cda & Nisga 'a Nation et al, 2000 BCSC 1123, 189 D.L.R. (4th) 333, [2000] 8 W.W.R. 601, 79 B.C.L.R. (3d) 122, [2000] 4 C.N.L.R. 1 at para. 81. 39 Sparrow, p. 1078. 40 Slattery, p. 273. 41 Guerin v. The Queen, [1984] 2 S.C.R. 335 at p. 350-351. 42 MMF, para. 128. 43 Haida Nation v. British Columbia (Minister of Forests) , 2004 SCC 73, [2004] 3 S.c.R. 511 at para. 16-25. 44; Tsilhqot'in, para. 76,88,90 and 97. 45 Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), [2005] 3 S.c.R. 388 at para. 1.
8
19. COO submit that the appropriate analytical framework for determining
constitutional jurisdiction in s. 91(24), must give meaning to the words "recognized and
affirmed" as it relates to the expression "peoples", in s. 35. Aboriginal peoples, whether
First Nation, Inuit or Metis, possess group rights including the capacity to define their own
membership in a manner consistent with Canada's constitutional framework. 46 Canada's
legislative authority "in relation" to "Indians" must be exercised in a manner consistent
with section 35(1) of the Constitution Act, 1982. This check on legislative power also
provides an element of choice in the hands of Aboriginal "peoples", to decide depending
on the pattern of their historical dealings, whether they want to establish or maintain
relations with the federal Crown, as First Nations have done, or with the provincial
Crown, as the Metis settlements in Alberta have done.47
D. International Law Principles and US Law Shou.ld Inform the Analytical Framework to Interpret s. 91(24), Constitution Act, 1867
20. "Peoples" has meaning in international law. Section 35(1) was drafted with this
meaning as a backdrop to the domestic implementation of Canada's international
obligations. Canada recognizes its international legal obligations as being relevant and
persuasive as a source of law for the purpose of interpreting domestic statutes and may
assist the Court in the contextual approach to interpreting s. 91(24) for the purposes of this
Appeal. 48
21. The meaning of the word "peoples" within section 35(1) should therefore take
guidance from its meaning in international law. 49
22. The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP)
46 UNDRIP, Art. 3 and Art. 18; Alberta (Aboriginal Affairs and Northern Development) v. Cunningham, 2011 SCC 37, [2011] 2 S.C.R. 670 at para. 13,54,66-70, and 75-76. 47 Alberta (Aboriginal Affairs and Northern Development) v. Cunningham, 2011 SCC 37, [2011] 2 S.C.R. 670. 48 Baker v. Canada (Minister o/Citizenship and Immigration), [1999] 2 S.C.R. 817 at p. 860-862. ["Baker"] 49 Catherine Bell, "Metis Constitutional Rights in Section 35(1)" (1997) 36 Alta. L. Rev. 180, pg. 5, "Rights arising from peoplehood are uncertain because the word "peoples" is not defined in Canadian constitutional law and minimal domestic judicial opinion has been rendered on this point. However, it is a term which was used frequently in international political discourse at the time s.35 was negotiated to distinguish colonized indigenous populations from nation states and ethnic minority immigrant populations within those states."
9
also provides guidance in relation to the meaning of the word peoples. 50 When
interpreting Canadian law, Parliament is presumed to act in compliance with its
international obligations51 and to respect the values and principles enshrined in
international law through the presumption of conformity. 52 Therefore, international
instruments such as UNDRIP, while not binding, should inform the contextual approach to
statutory interpretation. 53 We respectfully submit that s. 91(24) must be interpreted in a
manner reflecting UNDRIP's values and principles, 54 and therefore ultimately assist in
promoting reconciliation between the federal Crown and Aboriginal peoples.
23. The United States of America also offers persuasive jurisprudence55 on
interpreting statutes, agreements and historical developments to define its own relationship
with Aboriginal peoples. Professor Kent McNeil concludes, "that the same general
principles underlie Aboriginal law in both countries.,,56 This extends to the underlying
principle of self-detennination and addressing the impact of European colonization upon
pre-existing Aboriginal sovereignty.
24. The distinct political status of Native American governments and the political
relationship with the federal government is, according to Professor Matthew Fletcher, the
basis for a new and dynamic relationship between States and Indian tribes that reconciles
and smooths, "over the rough edges of federal Indian law".57 Moreover, this Court has
previously adopted and relied on United States jurisprudence to interpret the unique
50 The UNDRIP reflects customary international law and emerging norms in international law regarding the rights of Aboriginal peoples. Articles 3, 4 and 5 ofUNDRIP are principles to be incorporated in the contextual interpretation of s. 91(24). 51 R. v. Sharpe, [2001] 1 S.C.R. 45 at para. 175 ["Sharpe"] citing R. Sullivan, Driedger on the Construction of Statutes (3 rd Ed. 1994) at p. 330 where the Court stated, " ... the legislature is presumed to respect the values and principles enshrined in international law, both customary and conventional. These constitute a part of the legal context in which legislation is enacted and read. In so far as possible, therefore, interpretations that reflect these values and principles are preferred." 52 R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292 at para. 54. ["Hape"] 53 Baker, para. 860-862. 54 Hape, para. 53-54; Baker, para. 860-862; Sharpe, para. 175. 55 See, Morton v. Mancari, 417 U.S. 535 (1974) at pp. 553-554. 56 Kent McNeil, "Judicial Approaches to Self-Government Since Calder: Searching for Doctrinal Coherence" (2007), in Hamar Foster, et aI, Let Right Be Done: Aboriginal Title, the Calder Case and the Future of Indigenous Rights (Vancouver: UBC Press, 2007) at pg. 152. 57 Matthew Fletcher, "The Original Understanding of the Political Status ofIndian Tribes", St. Jo1m's Law Review, 2008, Vol. 82:153 atp. 181.
10
relationship that exists between the Crown and Aboriginal peoples. 58
25. It is respectfully submitted that the shared history - particularly relating to
Aboriginal peoples - between Canada and the United States provides this Court with
insight to assist with interpreting s. 91(24) in a manner that recognizes the continuing
historical record between Aboriginals and the federal Crown.
PART IV - COST SUBMISSIONS
26. COO do not seek costs and ask that it not be subject to any costs orders.
PART V - NATURE OF THE ORDER SOUGHT
27. COO seeks an order that it be granted leave to present oral argument of ten (10)
minutes on the hearing of this appeal.
ALL OF WHICH IS RESPECTFULLY SUBMITTED.
Dated: July 27,2015
David C. Nahwegahbow, IPC, LSM Counsel for the Intervener. Chiefs of Ontario
GuyRe' bal Agent (& the tervener Chiefs of Ontario
58 Calder, p. 383, Hall J. adopted the view of Chief Justice Marshall of the United States Supreme Court in Worcester v. State a/Georgia (1832),6 Peters 515, pp. 542-543: "America, separated from Europe by a wide ocean, was inhabited by a distinct people, divided into separate nations, independent of each other and of the rest of the world, having institutions of their own, and governing themselves by their own laws." See also, Sioui, p. 1054.
Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010 p.l082-1083,
7,9 1118
Guerin v. The Queen, [1984] 2 S.C.R. 335 p.350-351 18 Haida Nation v. British Columbia (Minister of Forests),
para. 16-25 18 2004 SCC 73, [2004] 3 S.C.R. 511 Manitoba Metis Federation Inc. v. Canada (Attorney para. 77, 128 8,9, 18 General), 2013 SCC 14, [2013] 1 S.C.R. 623 Mikisew Cree First Nation v. Canada (Minister of
para. 1 18 Canadian Heritage), [2005] 3 S.C.R. 388
Morton v. Mancari, 417 U.S. 535 (1974) 536, 541-542,
15,23 550,553-554
Mitchell v. PeRUis Indian Band, [1990] 2 S.C.R. 85 p. 108 16 R. v. Blais, 2003 SCC 44, [2003] 2 S.C.R. 236 para. 36 7 R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292 para. 53-54 22 R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433 para.60. 5 R. v. Powley, 2003 SCC 43, [2003] 2 S.C.R. 207 para. 10, 11 9, 10 R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45 para. 175 22
R. v. Sioui, [1990] 1 S.C.R. 1025 p. 1038, 1053,
9, 15 1054
R. v. Sparrow, [1990] 1 S.C.R. 1075 p. 1078, 1106,
7,9,17 1109
R. v. Van der Peet, [1996] 2 S.C.R. 507 p. 536-537,546- 8,9
12
547 Reference re Meaning of Word "Persons" in Section 24 of the British North America Act, 1867, [1928] S.C.R. 276, [1928] 4 D.L.R. 98, rev'd [1930] A.C. 124, [1930] para. 44 11 1 D.L.R. 98, [1929] 3 W.W.R. 479, sub nom. Edwards, et al v. AG Can, et al Reference re Same-Sex Marriage, 2004 SCC 79, [2004]
para. 22, 30 11 3 S.C.R. 698 Reference re Secession of Quebec, [1998] 2 S.C.R. 217 p.234-235 16 Tsilhqot'in Nation v. British Columbia, 2014 SCC 44, para. 74-75, 76,
9, 18 [2014] 2 S.C.R. 256 88,90,97
B ." S d fry'S ". .. ·>.;<;i ' .. '.' ". ..:".' .. ," .
Source;,.' .·C •.•••••. x ..i;c.L>.'; ~-= ••••••.• : .... ·PiIlpoin.te .)y~. PartlII • Alan Ojiig Corbiere, "Their own forms of which they take the most notice: Diplomatic metaphors and symbolism on wampum belts", Anishinaabewin NUwin, p.47-64 13 Four Winds Rising (M'Chigeeng: Ojibwe Cultural Foundation, 2014) Canada. Parliament. House of Commons. Special Committee on Indian Self-Government. Indian Self-Government in Canada (Ottawa: Published under
6 authority of the Speaker of the House of Commons by the Queen's Printer for Canada, 1983) ["Penner RepOlt"] Catherine Bell, "Metis Constitutional Rights in Section pgs.5 21 35(1)" (1997) 36 Alta. L. Rev. 180 John Borrows, "(Ab)Originalism and Canada's pg. 352, 354-355, 10, 11 Constitution" (2012) 58 S.C.L.R. (2d) 351 359 John Borrows, Canada's Indigenous Constitution Pg.157-158 12 (Toronto: University of Toronto Press, 2010) John Borrows, "Constitutional Law From a First Nation Perspective: Self-Government and the Royal 13 Proclamation" (1994) 28 UB.C. L. Rev. 1-47 John Borrows, Recovering Canada: The Resurgence of Indigenous Law (Toronto: University of Toronto Press, pg. 125, 148-153 13, 15 2002) John Borrows, "Wampum at Niagara: The Royal Proclamation, Canadian Legal History, and Self-Government", in Aboriginal and Treaty Rights in Chp.6 14 Canada, ed. Michael Asch (Vancouver: UBC Press, 1997) Matthew Fletcher, "The Original Understanding of the p. 181 24 Political Status of Indian Tribes", st. John's Law
13
Review, 2008, Vol. 82:153 Kent McNeil, "Judicial Approaches to Self-Government Since Calder: Searching for Doctrinal Coherence" (2007), in Hamar Foster, et aI, Let Right Be Done: p. 152 Aboriginal Title, the Calder Case and the Future of Indigenous Rights (Vancouver: UBC Press, 2007) Canada. Royal Commission on Aboriginal Peoples. Partners in Confederation: aboriginal peoples, self-government and the Constitution (Ottawa, ON: Royal Commission on Aboriginal Peoples, 1993). Canada. Royal Commission on Aboriginal Peoples. Report of the Royal Commission on Aboriginal Peoples,
pg.319 Vol. 1: Looking Forward, Looking Back (Ottawa, ON: Minister of Supply and Services Canada, 1996) John Leslie, et aI., Historical Development of the Indian Act, 2d Ed. (Ottawa: Department ofIndian Affairs and
pg.114 Northern Development, Treaties and Historical Research Branch, 1978) Brian Slattery, "First Nations and the Constitution: A Question of Trust", Canadian Bar Review, 1992, Vol. p.273,277,279 71 Truth and Reconciliation Commission of Canada, Honouring the Truth, Reconcilingfor the Future: Summary of the Final Report of the Truth and pg. 183, 185 Reconciliation Commission of Canada (Winnipeg: Truth and Reconciliation Commission of Canada, 2015)
Constitution Act, 1867 (UK), 30 & 31 Vict., c. 3, 91(24) reprinted in R.S.C. 1985, App. II, No.5. Constitution Act, 1982, being Schedule B to the s. 35, 35(1), 35(2) Canada Act 1982 (UK), 1982, c. 11. Indian Act, R.S.C., 1985, c. 1-5 s. 2 "Indian" Royal Proclamation, 1763, R.S.C. 1985, App. II, No.1
P ART VIII - INTERNATIONAL PROVISIONS
United Nations Declaration on the Rights of Indigenous Peoples, GA Res. 611295, UN GAOR, 61 st
Sess., Sup. No. 49 Vol. III, UN Doc. A/61149 (2007)
