Joyce v. Nova Scotia | Jan 27, 2022

SUPREME COURT OF NOVA SCOTIA

Citation: Joyce v. Nova Scotia (Attorney General), 2022 NSSC 22

Date: 20220127

Docket: Hfx No. 490119

Registry: Halifax

Between:

Stephen Joyce, Robert Cooper, E. Dianne Langley, Kenneth Langille

Plaintiffs

v.

The Attorney General of Nova Scotia, representing Her Majesty the Queen, in

right of the Province of Nova Scotia

Defendant

Decision

The Honourable Justice Peter Rosinski

Judge:

Heard:

June 4, 22 and 23, 2021, in Halifax, Nova Scotia

Andrew Lokan, Glynnis Hawe, and Robert Pineo, for the

Plaintiffs

Counsel:

Sean Foreman, Q.C. and Jeremy Smith, for the Defendant

Revised Decision: The text of the original decision has been corrected

according to the attached erratum, dated March 15, 2022

Page 2

By the Court:

Introduction

[1] In R v Bernard, 2002 NSCA 5 at para. 37 Justice Roscoe stated for the

unanimous Court:¹

“As mentioned above, there is no debate that the Mi'kmaq people have an aboriginal right

to hunt for food in Nova Scotia. (See R. v. Isaac (1975), 13 N.S.R. (2d) 460 (C.A.); R. v.

Denny (1990), 94 N.S.R. (2d) 253 (C.A.); and R. v. Toney (1993), 127 N.S.R. (2d)

322 (P.C.)).”

[2] However, there remains a serious legal debate about what Nova Scotian

persons are included within the group Justice Roscoe identified as “the Mi’kmaq

people”.

[3] The Plaintiffs in this proposed class proceeding (who, for convenience, I will

collectively refer to as a subset of the Self-Identifying Mi’kmaw peoples of Nova

Scotia: “SIMM”) are requesting the court to give them the opportunity to address

that question.

[4] Stephen Joyce, Robert Cooper, E. Dianne Langley and Kenneth Langille say

that they are directly descended from Nova Scotian Mi’kmaw peoples and are the

beneficiaries of treaty and aboriginal rights that exist to this day, and entitle them

to hunt and harvest.

[5] Because they are not Status Indians associated with a specific Band under

the federal Indian Act, the Province refuses to recognize the Plaintiffs as

“Mi’Kmaw people” who have those hunting and harvesting rights protected by s.

35 of the Constitution Act 1982.

[6] Stephen Joyce and the others want this court to formally recognize and

declare that they too are entitled to section 35 rights to hunt and harvest.

¹Leave to appeal to the Supreme Court of Canada was denied, R. v. Bernard, [2002] SCCA No 123. Herein I refer

to the jurisprudence because it is contextually relevant to both the sustainability of the pleadings and whether the

statutory criteria pursuant to the Class Proceedings Act have been satisfied.

Page 3

[7] These so-called section 35 rights are only available to persons who are

“aboriginal peoples of Canada”.

[8] The rights to hunt and harvest arising from both treaty and aboriginal rights,

were constitutionally enshrined in Canada by Section 35 of the Constitution Act,

1982:

Recognition of existing aboriginal and treaty rights

35 (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are

hereby recognized and affirmed.

Definition of aboriginal peoples of Canada

(2) In this Act, aboriginal peoples of Canada includes the Indian, Inuit and Métis peoples

of Canada.

Land claims agreements

(3) For greater certainty, in subsection (1) treaty rights includes rights that now exist by

way of land claims agreements or may be so acquired.

Aboriginal and treaty rights are guaranteed equally to both sexes

(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights

referred to in subsection (1) are guaranteed equally to male and female persons.

[9] The Province denies that the Plaintiffs have section 35 rights.

[10] However, for 28 years, starting in 1989, the Province did recognize each of

them as having these rights, as a result of each of them having been issued so-

called ATRA (“Aboriginal and Treaty Rights Access”) Passports.

[11] The Native Council of Nova Scotia (“NCNS”) is a voluntary association

registered under the Nova Scotia Societies Act. Since 1974, it has continuously

represented the interests of individuals like the Plaintiffs.

[12] In the years between 1989 and 2017, the Province relied upon the NCNS to

determine which claimant SIMM/ “Mi’kmaw” individuals (beyond Status Indians

associated with Bands) should be accepted by the Province as having section 35

rights to hunt and harvest.

[13] The Province also accepted that such SIMM persons issued ATRA

Passports (identification cards to that effect) were entitled to exercise section 35

rights in relation to matters within provincial jurisdiction.

Page 4

[14] Since 2017, the Province has no longer recognized the previously issued

ATRA passports.

[15] Instead, the Province has only permitted those Mi’Kmaw who are Status

Indians under the Indian Act and are associated with Indian Act Bands to exercise a

section 35 right to hunt and harvest.²

[16] Stephen Joyce and the others are suing the Province. They claim they are

being discriminated against contrary to section 15 of the Charter of Rights and

Freedoms, and that their section 35 rights ought to be formally recognized by the

court.

[17] To achieve this recognition, they seek to proceed by way of a class action.

To succeed they must satisfy the court that they have met all the pre-conditions for

a class action under the Class Proceedings Act, S.N.S. 2007, c. 28 as amended

[“CPA”].³

[18] The question for me is whether I should “certify” or permit the Plaintiffs to

proceed with their claims by way of the class action procedure?

[19] I am satisfied that their class action should be certified.

Background⁴

[20] For present purposes, these are the following arguable categories of Nova

Scotian Mi’kmaw:

1.

persons who are registered under the Indian Act and live on Reserve

as “Status” Indians;

2.

persons who are registered as Indian, but are Off-Reserve because

they do not live on or are not associated with a Reserve, yet are still

recognized by the Federal Government - for example, on the Atlantic

General List (as is Mr. Cooper – who is “Status”);

2

Collectively those persons are governed by the Assembly of First Nations Chiefs and Band Councils.

³Insofar as procedural issues are concerned, Rule 68 - Class Proceeding of the Nova Scotia Civil Procedure Rules is

also applicable.

⁴Attached hereto as Appendix “A” is the Amended Statement of Claim; and as Appendix “B” the Amended Motion

for certification.

Page 5

3.

persons who are not entitled to be registered as Indian under the

Indian Act (as are Mr. Joyce, Ms. Langley, and Mr. Langille), but

claim to be Mi’kmaw.

[21] Presently, the Province of Nova Scotia’s position is that it will only

recognize as having section 35 Constitution Act rights:

1.

Indian Act Band members (“Status” Indians associated with a specific

Band); and

2.

those claimants (possibly Status Indians not associated with a specific

Band, Non-Status Indians and others⁵) who are vetted and accepted as

Mi’kmaw by the “Wula na kinu” (“This is Who We Are” initiatives)

which only since 2019 has claimed to be the sole authority to

determine which persons should be issued Nova Scotia Mi’kmaw

“Harvester Identification Cards” (similar to the ATRA Passports).

This initiative was created pursuant to a decision of the Assembly of

Nova Scotia Mi’Kmaw Chiefs, and those of the Millbrook and

Sipekne’katik First Nations (all of whom are Status Indians).

[22] The latter initiative purports to give sole responsibility for determining

which applicants claiming to be Mi’kmaw, are in fact and law Mi’kmaw, and

therefore entitled as beneficiaries to section 35 Constitution Act rights.

[23] However, from 1989 to 2017 the Province of Nova Scotia did recognize as if

having section 35 Constitution Act rights, persons who were approved by the

Native Council of Nova Scotia and were consequently issued a so-called

“Aboriginal and Treaty Rights Access” (“ATRA”) Passport. This document was

prima facie accepted by the Province of Nova Scotia as proof that the bearer was a

beneficiary of section 35 Constitution Act rights and entitled to harvest renewable

resources in Nova Scotia.

[24] The Province’s 1989- 2017 position is consistent with the articles of a

September 20, 1990 Agreement between itself and the bulk of the Status Indian

Band’s governance, the Native Council of Nova Scotia and the Union of Nova

Scotia Indians. In particular, Article 2.01 thereof read:

⁵Under this initiative and if the Province defers to this process, the Province suggested in argument that it would

accept successful claimants as having section 35 rights – necessarily therefore also accepting that they are part of the

“aboriginal peoples of Canada” per section 35(2) of the Constitution Act.

Page 6

“The hunting rights described in the Agreement may be exercised by a Mic Mac resident of

Nova Scotia who qualifies in accordance with Articles 2.02 and 2.03 and

(a) is a member of a Band,

(b) is (unless a majority of the Joint Management Board concludes that member does

not have an ancestral connection to the Mic Mac nation) … ‘a full member of the

[NCNS] as at the date of this Agreement…’

[25] Then almost 30 years later there was an abrupt change. As the Province

stated in its April 6, 2021 brief:

“In summary, the Province’s position was concisely stated and clearly communicated by

Minister Miller in the final paragraph of her July 13, 2017 letter to the President of the

NCNS [Native Council of Nova Scotia]:

‘I would like to reiterate that this decision [i.e. to no longer accept ATRA Passports

as a prima facie sufficient basis upon which to recognize the bearers as entitled to

exercise s. 35 Constitution Act rights in Nova Scotia] was not taken lightly. The

Native Council has been a leader in resource conservation and in administering its

ATRA program and continues to provide valued programs and services to the off

reserve aboriginal community in Nova Scotia. This issue is fundamentally about

how the Mi’kmaw of Nova Scotia, as a section 35 rights bearing community,

identifies its harvesters. The Province, in making this decision, will respect to

the consensus position of the recognized representatives of the Mi’kmaw of

Nova Scotia.’”

[My bolding added]

[26] According to the Province, the “recognized representatives of the Mi’kmaw

of Nova Scotia” are those who represent the 13 Indian Act Bands in Nova Scotia.

Since August 15, 2017, the Province’s “Mi’kmaq Harvest Policy” (Soriano

affidavit Exhibit “B”) provides:

“To be accepted as a Mi’kmaq of Nova Scotia harvester, individuals must have a federal

Indian status card associated with a Mi’kmaq of Nova Scotia First Nation or a Nova Scotia

Mi’kmaq Harvest Card, issued by the Assembly of Nova Scotia Mi’kmaw Chiefs.”

[27] The Plaintiffs point out that since 1974 the Native Council of Nova Scotia

has been representing the interests of Mi’kmaw persons, including those who are

now members of the proposed Class (including Joyce, Cooper, Langley and

Langille).

Page 7

[28] It is a voluntary membership organization under the Societies Act, RSNS

1989, c. 435 as amended.

[29] The NCNS has approximately 3300 to 3500 full members, who have to be

16 years or older; domiciled in Nova Scotia; and prove native ancestry or be a

Non-Status Indian Act member of the Mi’kmaw. One cannot be a full member if

one is an Indian Act Band member.

[30] I have earlier collectively referred to this group as the Off- Reserve, Non-

Status or Self-Identifying Mi’kmaw - i.e. “SIMM”.

[31] The Plaintiffs argue that they have section 35 rights, and their chosen

representative for consultations has been, and remains, the Native Council of Nova

Scotia.

[32] The Plaintiffs claim that the Decision of the Province to no longer recognize

the ATRA Passports after July 2017, has breached their:

1.

right to be consulted (specifically through their “chosen

representative”- the NCNS) and is a failure to uphold the honour of

the Crown;

2.

3.

section 35 Constitution Act rights (treaty and aboriginal); and

section 15 Charter of Rights protection to the “equal protection and

equal benefit of the law without discrimination and, in particular,

without discrimination based on race, national or ethnic origin…”⁶

[33] The Plaintiffs have decided to proceed by way of a class action pursuant to

the Class Proceedings Act, 2007 SNS, c. 28.

[34] This decision addresses whether or not, as a matter of procedure, all or some

of their claims should be dealt with by the court as a class action.

[35] The Province vigorously opposes the Plaintiffs’ motion.

The Class Proceedings Act

⁶At the hearing the Plaintiff’s counsel refined their argument to exclude a claim of “race” based discrimination.

Page 8

[36] The authors of The Law of Class Actions in Canada, (Canada Law Book,

Thomson Reuters Canada Limited 2014) aptly summarized such legislation (pp. 1-

2):

“The class action is a procedural device for people who have suffered a common wrong.

One or more plaintiffs can bring an action on behalf of many, and in this way have an

efficient mechanism to achieve legal redress.… In its modern formulation, the class action

promotes more than just efficiency; there is also the idea that modern society creates harms

that affect large numbers of people who do not have the means to seek redress. As

discussed further in this chapter and a theme throughout the text, the three public policy

purposes that underlie the modern class action are:

1) access to justice

2) behaviour modification; and

3) judicial economy, including the avoidance of a multiplicity of proceedings.”

[37] In Wright Medical Technology Canada Ltd. v. Taylor, 2015 NSCA 68,

Justice Saunders stated for the court:

CRITERIA FOR CERTIFICATION

Section 7(1) Class Proceedings Act sets out the criteria which must be met before the court

can certify a matter as a class proceeding. That section states as follows:

7(1)The court shall certify a proceeding as a class proceeding on an application under

Section 4, 5 or 6 if, in the opinion of the court,

(a)the pleadings disclose or the notice of application discloses a cause of action;

(b)there is an identifiable class of two or more persons that would be represented by

a representative party;

(c)the claims of the class members raise a common issue, whether or not the common

issue predominates over issues affecting only individual members;

(d)a class proceeding would be the preferable procedure for the fair and efficient

resolution of the dispute; and

(e)there is a representative party who

(i)would fairly and adequately represent the interests of the class,

Page 9

(ii)has produced a plan for the class proceeding that sets out a workable method

of advancing the class proceeding on behalf of the class and of notifying class

members of the class proceeding, and

(iii)does not have, with respect to the common issues, an interest that is in

conflict with the interests of other class members.

The factors to be considered in determining whether a class proceeding would be

preferable under s. 7(1)(d) are found in s. 7(2) of the Act, which provides:

(2) In determining whether a class proceeding would be the preferable procedure for the

fair and efficient resolution of the dispute, the court shall consider

(a)whether questions of fact or law common to the class members predominate over

any questions affecting only individual members;

(b)whether a significant number of the class members have a valid interest in

individually controlling the prosecution of separate proceedings;

(c)whether the class proceeding would involve claims or defences that are or have

been the subject of any other proceedings;

(d)whether other means of resolving the claims are less practical or less efficient;

(e)whether the administration of the class proceeding would create greater difficulties

than those likely to be experienced if relief were sought by other means; and

(f)any other matter the court considers relevant.

Other than the requirement that the pleadings disclose a cause of action, the plaintiff has

the burden of establishing the remaining criteria on evidence. The burden on the plaintiff

is to show “some basis in fact” for each of the criteria. This is obviously a very low

threshold and indicates that the court is not to engage in the assessment or weighing of

evidence on a certification motion. A defendant may choose to provide evidence to rebut

that filed by the plaintiff, but if they wish to avoid certification, they will have to satisfy the

court that there is no basis in the evidence for one or more of the certification criteria.

An examination of each of the statutory criteria that the plaintiffs must

establish.

1-Do the pleadings disclose a cause of action?

Page 10

[38] The Plaintiffs have chosen to make claims based on three causes of action:⁷

1.

a breach of the duty to consult, and a failure to uphold the honour of

the Crown;

2.

3.

breaches of their treaty and aboriginal rights;

breaches of the protection against discrimination afforded to them by

section 15 of the Charter of Rights.

[39] Whether a pleading “discloses a cause of action”, requires this court to

presume that the pleaded facts are true, and consider whether “a pleading should

not be struck for failure to disclose a cause of action unless it is ‘plain and obvious’

that no claim exists”: Hollick v. Metropolitan Toronto [2001] 3 SCR 158 para. 25

per McLachlin CJC for the Court…” - Capital District Health Authority v. Murray,

2017 NSCA 28, at para. 30.

[40] I will next consider the necessary components of each cause of action

pleaded, and whether the pleadings support a conclusion that the material facts

necessary to each cause of action have sufficiently been pleaded - or alternatively

stated: whether the cause of action is “doomed to failure”.

i)

Breach of the duty to consult and failure to uphold the honour of the

Crown

[41] The general legal principles were referenced by Justice Fichaud in Nova

Scotia (Aboriginal Affairs) v. Pictou Landing First Nation, 2019 NSCA 75 (leave

to appeal denied March 26, 2020):

[4]

Under the Constitution Act, 1982, before Aboriginal peoples incur a potential

adverse impact to their credibly asserted rights that is caused by Crown conduct, they are

entitled to consultation with the Crown and, when appropriate, to accommodation. …

…

[79]

In Carrier Sekani, McLachlin C.J.C. for the Court discussed the standards of

review for issues of consultation with Aboriginal groups:

⁷The Amended Statement of Claim struck out the asserted breach of the 1990 Conservation Agreement as a cause of

action. However, the Plaintiffs continue to rely on the asserted breach as evidence of the fact that the Province

recognized, and therefore is still bound to recognizing some full members of the NCNS (who were issued ATRA

Passports), as properly included in the section 35 definition of “aboriginal peoples of Canada”, who therefore

had/have section 35 aboriginal rights.

Page 11

[64] Before leaving the role of tribunals in relation to consultation, it may be useful

to review the standard of review that courts should apply in addressing the decisions

of tribunals. The starting point is Haida Nation, at para. 61:

The existence or extent of the duty to consult or accommodate is a legal

question in the sense that it defines a legal duty. However, it is typically

premised on an assessment of the facts. It follows that a degree of deference

to the findings of fact of the initial adjudicator may be appropriate… . Absent

error on legal issues, the tribunal may be in a better position to evaluate the

issue than the reviewing court, and some degree of deference may be required.

In such a case, the standard of review is likely to be reasonableness. To the

extent that the issue is one of pure law, and can be isolated from the issues of

fact, the standard is correctness. However, when the two are inextricably

entwined, the standard will likely be reasonableness. …

[My bolding added]

…

The Legal Principles on Consultation

[94]

I will start by outlining the general legal principles, as they have evolved, then

analyze the submissions that the judge erred.

[95]

The Constitution Act, 1982 says:

35(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada

are hereby recognized and affirmed.

[96]

Section 35(1) affirms that before suffering a potential adverse impact, caused by

Crown conduct, to their credibly claimed rights, Aboriginal peoples are entitled to

consultation with the Crown and, in appropriate circumstances, to accommodation. The

conditions and scope of the entitlement are governed by principles developed in a series of

rulings by the Supreme Court of Canada.

[97]

Haida Nation (2004): In Haida Nation, supra, the Province of British Columbia

issued a Tree Farm Licence in 1961 to MacMillan Bloedel Limited. The license permitted

the harvesting of trees on lands claimed by the Haida people. In 1981, 1995 and 2000, the

Province replaced the previous license with replacement licenses to Weyerhaeuser

Company Limited. The Haida Nation challenged the replacement licenses as having been

issued without consultation. The Supreme Court held that the provincial Crown had

breached its duty of consultation with the Haida.

[98]

McLachlin C.J.C. explained the basis for consultation and accommodation and set

out the test to trigger the Crown’s duty. The duty to consult and, if appropriate,

accommodate “is grounded in the honour of the Crown”, a term which “is not a mere

Page 12

incantation, but rather a core precept that finds its application in concrete practices”:

(Haida Nation, para. 16). The Chief Justice summarized the rationale:

25 Put simply, Canada’s Aboriginal peoples were here when Europeans came, and

were never conquered. Many bands reconciled their claims with the sovereignty of

the Crown through negotiated treaties. Others, notably in British Columbia, have yet

to do so. The potential rights embedded in these claims are protected by s. 35 of

the Constitution Act, 1982. The honour of the Crown requires that these rights be

determined, recognized and respected. This, in turn, requires the Crown, acting

honourably, to participate in processes of negotiation. While this process

continues, the honour of the Crown may require it to consult and, where

indicated, accommodate Aboriginal interests.

[bolding added]

[99]

The rationale means the duty may apply prospectively to potential Aboriginal

rights before those rights have been finally determined:

26 Honourable negotiation implies a duty to consult with Aboriginal claimants and

conclude an honourable agreement reflecting the claimants’ inherent rights. But

proving rights may take time, sometimes a very long time. In the meantime, how are

the interests under discussion to be treated? …

27 The answer, once again, lies in the honour of the Crown. The Crown, acting

honourably, cannot cavalierly run roughshod over Aboriginal interests where claims

affecting these interests are being seriously pursued in the process of treaty

negotiation and proof. It must respect these potential, but yet unproven,

interests. The Crown is not rendered impotent. It may continue to manage the

resource in question pending claims resolution. But, depending on the circumstances,

discussed more fully below, the honour of the Crown may require it to consult with

and reasonably accommodate Aboriginal interests pending resolution of the claim. …

…

32 The jurisprudence of this Court supports the view that the duty to consult and

accommodate is part of a process of fair dealing and reconciliation that begins with

the assertion of sovereignty and continues beyond formal claims resolution. …

[bolding added]

[100] The Chief Justice set out the test that triggers the duty to consult:

35 But, when precisely does a duty to consult arise? The foundation of the duty in

the Crown’s honour and the goal of reconciliation suggest that the duty arises when

the Crown has knowledge, real or constructive, of the potential existence of the

Aboriginal right or title and contemplates conduct that might adversely affect

it ….

Page 13

36 ... As I stated (dissenting) in Marshall [R. v. Marshall, 1999 CanLII 665 (SCC),

[1999] 3 S.C.R. 456], at para. 112, one cannot “meaningfully discuss accommodation

or justification of a right unless one has some idea of the core of that right and its

modern scope”. However, it will frequently be possible to reach an idea of the

asserted rights and of their strength sufficient to trigger an obligation to consult and

accommodate, short of final judicial determination or settlement. To facilitate this

determination, claimants should outline their claims with clarity, focussing on the

scope and nature of the Aboriginal rights they assert and on the alleged

infringements. …

37 There is a distinction between knowledge sufficient to trigger a duty to consult

and, if appropriate, accommodate, and the content or scope of the duty in a particular

case. Knowledge of a credible but unproven claim suffices to trigger a duty to

consult. The content of the duty, however, varies with the circumstances, as

discussed more fully below. A dubious or peripheral claim may attract a mere duty of

notice, while a stronger claim may attract more stringent duties. The law is capable

of differentiating between tenuous claims, claims possessing a strong prima

facie case, and established claims. Parties can assess these matters, and if they cannot

agree, tribunals and courts can assist. …

[bolding added]

[101] The process of consultation must be “meaningful”:

42 At all stages, good faith is required. The common thread on the Crown’s part

must be “the intention of substantially addressing [Aboriginal] concerns” as they are

raised [citation omitted], through a process of meaningful consultation. Sharp dealing

is not permitted. However, there is no duty to agree; rather, the commitment is to a

meaningful process of consultation. As for Aboriginal claimants, they must not

frustrate the Crown’s reasonable good faith attempts, nor should they take

unreasonable positions to thwart government from making decisions or acting in

cases where, despite meaningful consultation, agreement is not reached. [citations

omitted] Mere hard bargaining, however, will not offend an Aboriginal people’s right

to be consulted.

[102] The Crown may delegate the consultative process but cannot escape the

responsibility to consult. The Chief Justice said:

53 … the duty to consult and accommodate, as discussed above, flows from the

Crown’s assumption of sovereignty over lands and resources formerly held by the

Aboriginal group. This theory provides no support for an obligation on third parties

to consult or accommodate. The Crown alone remains legally responsible for the

consequences of its actions and interactions with third parties, that affect

Aboriginal interests. The Crown may delegate procedural aspects of consultation to

industry proponents seeking a particular development; that is not infrequently done

in environmental assessments. ... However, the ultimate legal responsibility for

Page 14

consultation and accommodation rests with the Crown. The honour of the Crown

cannot be delegated. [bolding added]

[103] Taku River (2004): In Taku River Tlingit First Nation, supra, a companion case

to Haida Nation, the Chief Justice for the Court elaborated on the Honour of the Crown:

23 The Province argues that, before the determination of rights through litigation or

conclusion of a treaty, it owes only a common law “duty of fair dealing” to

Aboriginal peoples whose claims may be affected by government decisions. It argues

that a duty to consult could arise after rights have been determined, through what it

terms a “justificatory fiduciary duty”. Alternatively, it submits, a fiduciary duty may

arise where the Crown has undertaken to act only in the best interests of an

Aboriginal people. The province submits that it owes the TRTFN no duty outside of

those specific situations.

24 The province’s submissions present an impoverished vision of the honour of

the Crown and all that it implies. As discussed in the companion case

of Haida, supra, the principle of the honour of the Crown grounds the Crown’s duty

to consult and if indicated accommodate Aboriginal peoples, even prior to proof of

asserted Aboriginal rights and title. The duty of honour derives from the Crown’s

assertion of sovereignty in the face of prior Aboriginal occupation. It has been

enshrined in s. 35(1) of the Constitution Act, 1982, which recognizes and affirms

existing Aboriginal rights and titles. Section 35(1) has, as one of its purposes,

negotiation of just settlement of Aboriginal claims. In all its dealings with

Aboriginal peoples, the Crown must act honourably, in accordance with its

historical and future relationship with the Aboriginal peoples in question. The

Crown’s honour cannot be interpreted narrowly or technically, but must be

given full effect in order to promote the process of reconciliation mandated by s.

35(1).

[bolding added]

[104] Mikisew (2005): In Mikisew, supra, Binnie J. for the Court expanded on the Chief

Justice’s comments in Haida Nation, respecting the degree of “adverse effect” needed to

trigger consultation:

34 … The question in each case will therefore be to determine the degree to which

conduct contemplated by the Crown would adversely affect those rights so as to

trigger the duty to consult. Haida Nation and Taku River set a low threshold. The

flexibility lies not in the trigger (“might adversely affect it”) but in the variable

content of the duty once triggered. At the low end, “the only duty on the Crown may

be to give notice, disclose information, and discuss any issues raised in response to

notice” (Haida Nation, at para. 43). …

[bolding added]

Page 15

[105] Carrier Sekani (2010): Several years later, in Carrier Sekani, supra, the Supreme

Court refined the principles.

[106] In the 1950s, without consultation, the Government of British Columbia authorized

the construction of a dam and reservoir that affected First Nations’ claims to their ancestral

homeland and fishing rights. The sale of energy from the facilities was governed by Energy

Purchase Agreements that were subject to approval by the British Columbia Utilities

Commission. In 2007, the Government of British Columbia sought the Commission’s

approval of such an Agreement with Rio Tinto Alcan. At issue was the adequacy of the

Crown’s consultation with the Aboriginal groups. The Commission accepted it had the

jurisdiction to consider the adequacy of consultation. The Commission then found that the

2007 Energy Purchase Agreement did not adversely affect any Aboriginal interest, so the

duty to consult was not triggered. It approved the Agreement. Its ruling was overturned by

the British Columbia Court of Appeal but reinstated by the Supreme Court of Canada.

[107] McLachlin C.J.C. for the Court explained why the duty to consult applies before the

final determination of the Aboriginal right or claim:

[33] The duty to consult described in Haida Nation derives from the need to

protect Aboriginal interests while land and resource claims are ongoing or when

the proposed action may impinge on an Aboriginal right. Absent this duty,

Aboriginal groups seeking to protect their interests pending a final settlement would

need to commence litigation and seek interlocutory injunctions to halt the threatening

activity. These remedies have proven time-consuming, expensive and are often

ineffective. Moreover, with a few exceptions, many Aboriginal groups have limited

success in obtaining injunctions to halt development or activities on the land in order

to protect contested Aboriginal or treaty rights.

[34] … Rather than pitting Aboriginal peoples against the Crown in the litigation

process, the duty recognizes that both must work together to reconcile their interests.

It also accommodates the reality that often Aboriginal peoples are involved in

exploiting the resource. Shutting down development by court injunction may

serve the interest of no one. The honour of the Crown is therefore best reflected by

a requirement for consultation with a view to reconciliation.

[35] Haida Nation sets the framework for dialogue prior to the final resolution of

claims by requiring the Crown to take contested or established Aboriginal rights into

account before making a decision that may have an adverse impact on them … The

duty is prospective, fastening on rights yet to be proven.

[Supreme Court’s italics, bolding added]

[108] The Chief Justice enumerated and explained Haida Nation’s test as to when the

Crown’s duty to consult arises:

[31] ... This test can be broken down into three elements: (1) the

Crown’s knowledge, actual or constructive, of a potential Aboriginal claim or

Page 16

right; (2) contemplated Crown conduct; (3) the potential that the contemplated

conduct may adversely affect an Aboriginal claim or right. …

[bolding added]

[109] As to the first element:

[40] To trigger the duty to consult, the Crown must have real or constructive

knowledge of a claim to the resource or land to which it attaches: Haida Nation, at

para. 35. The threshold, informed by the need to maintain the honour of

the Crown, is not high. Actual knowledge arises when a claim has been filed in

court or advanced in the context of negotiations, or when a treaty right may be

impacted [citation omitted]. Constructive knowledge arises when lands are known or

reasonably suspected to have been traditionally occupied by an Aboriginal

community or an impact on rights may reasonably be anticipated. While the

existence of a potential claim is essential, proof that the claim will succeed is not.

What is required is a credible claim. …

[41] The claim or right must be one which actually exists and stands to

be affected by the proposed government action. This flows from the fact

that the purpose of consultation is to protect unproven or established rights

from irreversible harm as the settlement negotiations proceed. [citations

omitted].

[bolding added]

[110] Then the second element:

[42] Second, for a duty to consult to arise, there must be Crown conduct or

a Crown decision that engages a potential Aboriginal right. What is required is

conduct that may adversely impact on the claim or right in question.

[43] This raises the question of what government action engages the duty to consult.

It has been held that such action is not confined to government exercise of

statutory powers: [citations omitted]. This accords with the generous, purposive

approach that must be brought to the duty to consult.

[44] Further, government action is not confined to decisions or conduct which have

an immediate impact on lands and resources. A potential for adverse

impact suffices. Thus the duty to consult extends to “strategic, higher

level decisions” that may have an impact on Aboriginal claims and

rights [citation omitted]. Examples include the transfer of tree licences which would

have permitted the cutting of old-growth forest (Haida Nation); ….

[bolding added]

[111] Lastly, the third element:

Page 17

[45] The third element of a duty to consult is the possibility that the Crown conduct

may affect the Aboriginal claim or right. The claimant must show a causal

relationship between the proposed government conduct or decision and a

potential for adverse impacts on pending Aboriginal claims or rights. Past

wrongs, including previous breaches of the duty to consult, do not suffice.

[46] Again, a generous, purposive approach to this element is in order, given

that the doctrine’s purpose, as stated by Newman, is “to recognize that actions

affecting unproven Aboriginal title or treaty rights can have irreversible effects that

are not in keeping with the Honour of the Crown” (p. 30, citing Haida Nation, at

paras. 27 and 33).Mere speculative impacts, however, will not suffice. … The

adverse effect must be on the future exercise of the right itself; an adverse effect on a

First Nations future negotiating position does not suffice.

[47] Adverse impacts extend to any effect that may prejudice a

pending Aboriginal claim or right. Often the adverse effects are physical in nature.

However, as discussed in connection with what constitutes Crown conduct, high-

level management decisions or structural changes to the resource’s

management may also adversely affect the Aboriginal claims or rights even if those

decisions have no “immediate impact on lands and resources” [citation omitted]. This

is because such structural changes to the resources management may set the

stage for further decisions that will have a direct adverse impact on land and

resources.

[49] The question is whether there is a claim or right that potentially may be

impacted by the current government conduct or decision in question. Prior

and continuing breaches, including prior failures to consult, will only trigger a duty

to consult if the present decision has the potential of causing a novel adverse

impact on a present claim or existing right. …

…

[52] The respondent’s submissions are based on a broader view of the duty to

consult. It argues that even if the 2007 EPA will have no impact on the Nechako

River water levels, the Nechako fisheries or the management of the contested

resource, the duty to consult may be triggered because the 2007 EPA is part of a

larger hydro-electric project which continues to impact its rights. The effect of this

proposition is that if the Crown proposes an action, however limited, that relates to a

project that impacts Aboriginal claims or rights, a fresh duty to consult arises. The

government action or decision, however inconsequential, becomes the hook that

secures and reels in the constitutional duty to consult on the entire resource.

[53] I cannot accept this view of the duty to consult. Haida Nation negates such a

broad approach. It grounded the duty to consult in the need to preserve Aboriginal

rights and claims pending resolution. It confines the duty to consult to adverse

impacts flowing from the specific Crown proposal at issue – not to larger

adverse impacts of the project of which it is a part. The subject of the consultation

is the impact on the claimed rights of the current decision under consideration.

Page 18

[54] … An order compelling consultation is only appropriate where the

proposed Crown conduct, immediate or prospective, may adversely impact on

established or claimed rights. Absent this, other remedies may be more appropriate.

[Supreme Court’s italics, bolding added]

[112] The Commission found that the Energy Purchase Agreement would not adversely

affect the Aboriginal interests. In upholding that finding, the Chief Justice said:

[92] … The uncontradicted evidence established that Alcan would continue to

produce electricity at the same rates regardless of whether the 2007 EPA was

approved or not, and that Alcan will sell its power elsewhere if BC Hydro does not

buy it … . [Supreme Court’s italics]

[113] Ktunaxa Nation (2017): As the approach is prospective, the tribunal or reviewing

court that assesses issues of consultation does not determine the validity of the claimed

Aboriginal right. The merits of the underlying right await the appropriate trial

process: Ktunaxa Nation v. British Columbia (Forests, Lands and Natural Resource

Operations), 2017 SCC 54 (CanLII), [2017] 2 S.C.R. 386, paras. 84-85.

[114] Clyde River (2017): In Clyde River (Hamlet) v. Petroleum Geo-Services Inc., 2017

SCC 40 (CanLII), [2017] 1 S.C.R. 1069, para. 25, Justices Karakatsanis and Brown for the

Court reiterated the Haida Nation/Carrier Sekani test that the duty to consult is triggered

when (1) the Crown has actual or constructive knowledge of a potential Aboriginal right,

and there is (2) Crown conduct that (3) might adversely affect the Aboriginal right.

[115] Justices Karakatsanis and Brown affirmed the Crown’s responsibility to address the

constitutional imperative:

[24] Above all, and irrespective of the process by which consultation is undertaken,

any decision affecting Aboriginal or treaty rights made on the basis of inadequate

consultation will not be in compliance with the duty to consult, which is a

constitutional imperative. Where challenged, it should be quashed on judicial review.

…

[116] To satisfy the Constitution’s reconciliatory objective, Justices Karakatsanis and

Brown interpreted “Crown conduct” and “adverse effects” broadly:

[25] … Crown conduct which would trigger the duty is not restricted to the exercise

by or on behalf of the Crown of statutory powers or of the royal prerogative, nor is it

limited to decisions that have an immediate impact on lands and resources. The

concern is for adverse impacts, however made, upon Aboriginal and treaty rights

and, indeed, a goal of consultation is to identify, minimize and address adverse

impacts where possible. (Carrier Sekani, at paras. 45-46). [bolding added]

[117] Chippewas of the Thames (2017): In Chippewas of the Thames First Nation v.

Enbridge Pipelines Inc., 2017 SCC 41 (CanLII), [2017] 1 S.C.R. 1099, the National

Page 19

Energy Board was asked to approve a modification of a pipeline that crossed the First

Nation’s traditional territory. The Board considered whether there had been adequate

consultation, held the project’s effect on Aboriginal interests would be minimal, and

approved the project with accommodating conditions.

[118] Justices Karakatsanis and Brown held that the duty to consult is triggered by

adverse impacts from the specific proposal currently at issue and not by merely historic

impacts. However, the historical context and cumulative effects of an ongoing project may

inform the analysis of the impact to be expected from the current proposal:

[41] The duty to consult is not triggered by historical impacts. It is not a vehicle

to address historical grievances. In Carrier Sekani, this Court explained that the

Crown is required to consult on “adverse impacts flowing from the specific Crown

proposal at issue – not [on] larger adverse impacts of the project of which it is a part.

The subject of the consultation is the impact on the claimed rights of

the current decision under consideration” (Carrier Sekani, at para. 53 [emphasis

in Carrier Sekani]). Carrier Sekani also clarified that “[a]n order compelling

consultation is only appropriate where the proposed Crown conduct, immediate or

prospective, may adversely impact on established or claimed rights” (para. 54).

[42] That said, it may be impossible to understand the seriousness of the impact of a

project on s. 35 rights without considering the larger context [citation

omitted]. Cumulative effects of an ongoing project, and historical context,

may therefore inform the scope of the duty to consult [citation omitted]. This is

not “to attempt the redress of past wrongs. Rather, it is simply to recognize an

existing state of affairs, and to address the consequences of what may result from”

the project [citation omitted].

[bolding added]

[119] Mikisew (2018): In Mikisew Cree First Nation v. Canada (Governor General in

Council), 2018 SCC 40 (CanLII), [2018] 2 S.C.R. 765, paras. 32, 102 and 148, the

majority held that the law-making process does not trigger the duty to consult. Justice

Karakatsanis succinctly tracked the consultative duty’s derivation from first principles:

[21] The honour of the Crown is a foundational principle of Aboriginal law and

governs the relationship between the Crown and Aboriginal peoples. …

[22] The underlying purpose of the honour of the Crown is to facilitate the

reconciliation of these interests [citation omitted]. One way that it does so is by

promoting negotiation and the just settlement of Aboriginal claims as an alternative

to litigation and judicially imposed outcomes [citation omitted]. This endeavour of

reconciliation is a first principle of Aboriginal law.

…

[24] As this Court has stated in Haida Nation, the honour of the Crown “is not a

mere incantation, but rather a core precept that finds its application in concrete

Page 20

practices” and “gives rise to different duties in different circumstances” (paras. 16

and 18). … Determining what constitutes honourable dealing, and what specific

obligations are imposed by the honour of the Crown, depends heavily on the

circumstances [citations omitted].

[25] The duty to consult is one such obligation. In instances where the Crown

contemplates executive action that may adversely affect s. 35 rights, the honour of

the Crown has been found to give rise to a justiciable duty to consult [citations

omitted]. … These cases demonstrate that, in certain circumstances, Crown conduct

may not constitute an “infringement” of established s. 35 rights; however, acting

unilaterally in a way that may adversely affect such rights does not reflect well on

the honour of the Crown and may thus warrant intervention on judicial review.

[26] … The duty to consult ensures that the Crown acts honourably by preventing it

from acting unilaterally in ways that undermine s. 35 rights. This promotes

reconciliation between the Crown and Aboriginal peoples first, by providing

procedural protections to s. 35 rights, and second, by encouraging negotiation and

just settlements as an alternative to the cost, delay and acrimony of litigating s.

35 infringement claims [citations omitted].

[27] … Crown conduct need not have an immediate impact on lands and

resources to trigger the duty to consult. This Court has recognized that “high-

level management decisions or structural changes to [a] resource’s

management” may also trigger a consultative duty [citation omitted]. …

[bolding added]

Analysis – The Test

[120] The test has three elements: (1) the Crown’s actual or constructive knowledge of a

potential Aboriginal right or claim, and (2) contemplated Crown conduct (3) that

potentially would adversely impact the Aboriginal right or claim: Haida Nation,

para. 35; Carrier Sekani, para. 31.

First Element – Crown Knowledge

[121] The Crown’s knowledge of “a credible but unproven claim suffices”. “[T]he

threshold, informed by the need to maintain the honour of the Crown, is not high”. The

Crown’s “actual knowledge arises when a claim has been filed”. Haida Nation,

para. 37. Carrier Sekani, para. 40. The Court that assesses whether the duty to consult is

triggered does not determine the merits of the underlying claim: Ktunaxa Nation, paras. 84-

85.

…

Second and Third Elements –

Crown Conduct that Causes a Potential Adverse Impact

Page 21

[127] The submissions have, for the most part, treated the second and third elements of

the test in tandem, as did Justice Gabriel’s reasons. I will do the same.

[128] The point of departure is the Chief Justice’s reasoning in Carrier Sekani which, for

convenience, I requote:

[44] … government action is not confined to decisions or conduct which have an

immediate impact on lands and resources. A potential for adverse impact suffices.

Thus the duty to consult extends to “strategic, higher level decisions” that may have

an impact on Aboriginal claims and rights [citation omitted]. Examples include the

transfer of tree licences which would have permitted the cutting of old-growth forest

(Haida Nation). …

…

[47] … high-level management decisions or structural changes to the resource’s

management may also adversely affect Aboriginal claims or rights even if these

decisions have no “immediate impact on lands and resources” [citation omitted]. This

is because such structural changes to the resources management may set the

stage for further decisions that will have a direct adverse impact on land and

resources. …

[90] … In cases where adverse impact giving rise to a duty to consult has been

found as a consequence of organizational or power-structure changes, it has

generally been on the basis that the operational decision at stake may affect

the Crown’s future ability to deal honourably with Aboriginal interests. Thus,

in Haida Nation, the Crown proposed to enter into a long-term timber sale contract

with Weyerhaeuser. By entering into the contract, the Crown would have reduced its

power to control logging of trees, some of them old growth forest, and hence its

ability to exercise decision making power over the forest consistent with the honour

of the Crown. … [Chief Justice’s italics, bolding added]

[42] The Crown arguments in response include that there were no material facts

pleaded to establish that (and therefore the cause of action on the pleadings is

doomed to fail):⁸

⁸I keep in mind the court’s comments in MacQueen v. Nova Scotia (Attorney General), 2013 NSCA 143 at para. 54,

where it reiterated that a live cause of action requires that a plaintiff must plead every fact which would be necessary

for the plaintiff to prove at trial in order to support his right to the judgement of the court. It does not comprise every

piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved; and that

pleadings must be read generously to allow for inadequacies owing to drafting frailties and the plaintiff’s genuine

inability to do much more at that stage of the proceeding (e.g. due to lack of access to documents/disclosure and

discovery) … provided that generosity does not overcome pleaded facts inconsistent with the underlying cause of

action and it cannot supply factual omissions in such pleadings.

Page 22

the Province owed these individuals a duty to consult them, or that

1.

they delegated authority to discuss their treaty/aboriginal rights issues

to the NCNS;

2.

3.

the Province owed a duty to consult with the Class through the NCNS;

the Province had “specific or subjective knowledge of facts pertaining

to either the identity of the individual plaintiffs, their status as holders

of ATRA Passports, and the subjective details of how and why they

exercised any aboriginal or treaty rights in the Province, such that [the

Province] would ‘know’ who the Class [members] was… there is no

‘generalized duty to consult with aboriginal peoples… must be case

specific facts presented to meet each element of the test… [from]

Haida Nation, [2004 SCC 73]”…; [see also Buffalo River Dene

Nation v Saskatchewan, 2015 SKCA 31]⁹

[43] I am satisfied that the pleadings sufficiently make out that there is a duty

here, that it arises because the Crown had knowledge, real or constructive, of the

potential existence of a claim of aboriginal rights or treaty rights, and contemplated

conduct that might adversely affect those rights, as well as a failure to consult the

NCNS, such that there was a properly pleaded breach of the duty to consult and

failure to uphold the honour of the Crown.¹⁰

ii)

Breaches of the treaty or aboriginal section 35 rights of the Class¹¹

⁹In Taku River Tlingit First Nation v. British Columbia, 2004 SCC 74, the court stated: “In all its dealings with

aboriginal peoples, the Crown must act honourably, in accordance with its historical and future relationship with

the aboriginal peoples in question. The Crown’s honour cannot be interpreted narrowly or technically but must be

given full effect in order to promote the process of reconciliation mandated by section 35(1). As discussed in Haida,

what the honour of the Crown requires varies with the circumstances… The duty to consult arises when a Crown

actor has knowledge, real or constructive, of the potential existence of aboriginal rights or title and contemplates

conduct that might adversely affect them. This in turn may lead to a duty to change government plans or policy to

accommodate aboriginal concerns. Responsiveness is a key requirement of both consultation and accommodation.”

[My italics added]

10

At paragraphs 47-49 in R. v. Desautel, 2021 SCC 17, the Court suggests that it is arguably a breach of the duty to

consult when the Province only consults one of two groups who qualify or arguably qualify as a section 35 rights

bearing group. This is a “complex” issue: who is to be included in the group that “are the modern-day successors of

Aboriginal societies that occupied what is now Canada at the time of European contact (subject to the modifications

that may be necessary in the case of the Métis)?”

¹¹I should clarify here that the Plaintiffs’ counsel acknowledged that although the pleadings (para. 60) suggest 387

ATRA Passport holders constitute the Class, they acknowledge that of the 131 “Status Indians” included therein,

those that have Indian Act Band membership should not be included in the Class. Plaintiffs’ Counsel has asked the

Page 23

[44] In oral argument, counsel for the Province stated that it conceded that “the

Mi’Kmaw of Nova Scotia” retain an existing aboriginal and treaty right to hunt in

the Province per Simon v. R., [1985] 2 SCR 387.¹²

[45] Mr. Simon was a Status Indian and member of the Shubenacadie Indian

Brook (No. 2) Band. Notably the NCNS was an intervener in that case. At issue

was the Treaty of 1752, which the court found “was validly created by competent

parties”.

[46] That court also found that the Treaty contained a right to hunt concluding:

“It is implicit in the right granted under Article 4 of the Treaty of 1752 that [Mr. Simon]

has the right to possess a gun and ammunition in a safe manner in order to be able to

exercise the right to hunt.”

[47] Lastly, the court concluded: “the Treaty of 1752 was not terminated by

subsequent hostilities in 1753. The Treaty is of as much force and effect today as it

was at the time it was concluded… it is not necessary to come to a final decision

on the [Province’s] argument [that the Treaty of 1752 has been extinguished”.

[48] Regarding whether Mr. Simon had established a sufficient connection with

the original group of Mi’Kmaw Indians inhabiting the Eastern part of Nova Scotia

in the Shubenacadie area, the court concluded:

“[Mr. Simon] has established a sufficient connection with the Indian band, signatories to

the Treaty of 1752… [Mr. Simon]… was a registered Indian under the Indian Act, and

was an ‘adult member of the Shubenacadie-Indian Brook Band of Micmac Indians

and was a member of the Shubenacadie Band Number 2’. [Mr. Simon] is, therefore a

Shubenacadie -Micmac Indian, living in the same area as the original Micmac Indian

tribe, party to the Treaty of 1752. This evidence alone, in my view, is sufficient to

prove [Mr. Simon’s] connection to the Tribe originally covered by the Treaty. True,

this evidence is not conclusive proof that [Mr. Simon] is a direct descendent of the

Mi’kmaq Indians covered by the Treaty of 1752. It must, however, be sufficient, for

otherwise no Micmac Indian would be able to establish the descendancy. The

Mi’kmaq did not keep written records. Micmac traditions are largely oral in nature.

To impose an impossible burden of proof would in effect render nugatory any right to

court to make its decision as if they were not pleaded as included-those like Mr. Cooper who are on the Atlantic

General List should still be included. I will do so. I will also address some of the legal principles implicated in

assessing the merits of claims to aboriginal rights, to provide context for whether the material facts necessary to this

cause of action have been pleaded.

¹²As noted earlier, this position was reiterated by Justice Roscoe in R. v. Bernard, 2002 NSCA 5.

Page 24

hunt that a present day Shubenacadie-Micmac Indian would otherwise be entitled to

invoke based on this Treaty.”¹³

[My bolding added]

[49] R. v. Marshall, [1999] 3 SCR 456 (notably the NSNC was an intervener in

that case as well), dealt with the rights of the Mi’Kmaw to harvest eels pursuant to

the treaties of 1760 – 61, which were held to be still in force. Justice Binnie

stated:¹⁴

4

.… the courts have not applied strict rules of interpretation to treaty

relationships…

…

14

… The appellant says the treaty allows him to fish for trade. In my

view, the 1760 treaty does affirm the right of the Mi’kmaq people to continue to

provide for their own sustenance by taking the products of their hunting, fishing and

other gathering activities, and trading for what in 1760 was termed

“necessaries”. This right was always subject to regulation. The Crown does not

suggest that the regulations in question accommodate the treaty right. The Crown’s case is

that no such treaty right exists. Further, no argument was made that the treaty right

was extinguished prior to 1982, and no justification was offered by the Crown for the

several prohibitions at issue in this case. Accordingly, in my view, the appellant is

entitled to an acquittal…

‘Generous’ rules of interpretation should not be confused with a vague sense of after-the-

fact largesse… The Indian parties did not, for all practical purposes, have the opportunity

to create their own written record of the negotiations. Certain assumptions are therefore

made about the Crown’s approach to treaty making (honourable) which the court acts upon

in its approach to treaty interpretation (flexible) as to the existence of a treaty… the

completeness of any written record (the use, for example, of context and implied terms to

make honourable sense of the treaty arrangement: R v Simon, …) and the interpretation of

treaty terms once found to exist (Badger)…

The 1752 Mi’kmaq Treaty

15

In 1749, following one of the continuing wars between Britain and

France, the British Governor at Halifax had issued what was apparently the first of the

Proclamations “authorizing the military and all British subjects to kill or capture any

Mi’kmaq found, and offering a reward”. This prompted what the Crown’s expert witness

¹³It should be noted that the Supreme Court of Canada found that it was section 88 of the Indian Act, specifically

that provided Mr. Simon protection of his Treaty rights (paras. 61-66).

¹⁴Mr. Marshall placed no reliance on any aboriginal right claim, but “chooses to rest his case entirely on the

Mi’Kmaw treaties of 1760 – 61”- at para. 2

Page 25

at trial referred to as a “British-Mi’kmaq war”. By 1751 relations had eased to the point

where the 1749 Proclamation was revoked, and in November 1752 the Shubenacadie

Mi’kmaq entered into the 1752 Treaty which was the subject of this Court’s decision

in Simon. This treaty stated in Article 4 that:

It is agreed that the said Tribe of Indians shall not be hindered from, but have free

liberty of Hunting and Fishing as usual and that if they shall think a Truckhouse

needful at the River Chibenaccadie or any other place of their resort, they shall have

the same built and proper Merchandize lodged therein, to be exchanged for what the

Indians shall have to dispose of, and that in the mean time the said Indians shall have

free liberty to bring for Sale to Halifax or any other Settlement within this Province,

Skins, feathers, fowl, fish or any other thing they shall have to sell, where they shall

have liberty to dispose thereof to the best Advantage. [Emphasis added.]

16

It will be noted that unlike the March 10, 1760 document, the

earlier 1752 Treaty contains both a treaty right to hunt and fish “as usual” as well as

a more elaborate trade clause. The appellant here initially relied on the 1752 Treaty

as the source of his treaty entitlement. In Simon, Dickson C.J., at p. 404, concluded

that on the basis of the evidence adduced in that case, “[t]he Crown has failed to

prove that the Treaty of 1752 was terminated by subsequent hostilities” and left the

termination issue open (at pp. 406-7). The Crown led more detailed evidence of

hostilities in this case. It appears that while the British had hoped that by entering the

1752 Treaty other Mi’kmaq communities would come forward to make peace, skirmishing

commenced again in 1753 with the Mi’kmaq. France and Britain themselves went to war

in 1754 in North America. In 1756, as stated, another Proclamation was issued by the

British authorizing the killing and capturing of Mi’kmaq throughout Nova

Scotia. According to the trial judge, at para. 63, during the 1750s the “French were

relying on Mi’kmaq assistance in almost every aspect of their military plans including

scouting and reconnaissance, and guarding the Cape Breton coastline”. This evidence

apparently persuaded the appellant at trial to abandon his reliance on the 1752 Peace

and Friendship Treaty. The Court is thus not called upon to consider the 1752 Treaty

in the present appeal.

[My bolding added]

[50] The court also spoke about general principles of treaty interpretation:

78

This Court has set out the principles governing treaty interpretation

on many occasions. They include the following.

1. Aboriginal treaties constitute a unique type of agreement and attract special

principles of interpretation: R. v. Sundown, 1999 CanLII 673 (SCC), [1999] 1

S.C.R 393, at para. 24; R. v. Badger, 1996 CanLII 236 (SCC), [1996] 1 S.C.R.

771, at para. 78; R. v. Sioui, 1990 CanLII 103 (SCC), [1990] 1 S.C.R. 1025, at p.

1043; Simon v. The Queen, 1985 CanLII 11 (SCC), [1985] 2 S.C.R. 387, at p.

Page 26

404. See also: J. [Sákéj] Youngblood Henderson, “Interpreting Sui

Generis Treaties” (1997), 36 Alta. L. Rev. 46; L. I. Rotman, “Defining

Parameters: Aboriginal Rights, Treaty Rights, and the Sparrow Justificatory

Test” (1997), 36 Alta. L. Rev. 149.

2. Treaties should be liberally construed and ambiguities or doubtful expressions

should be resolved in favour of the aboriginal signatories: Simon, supra, at p.

402; Sioui, supra, at p. 1035; Badger, supra, at para. 52.

3. The goal of treaty interpretation is to choose from among the various possible

interpretations of common intention the one which best reconciles the interests

of both parties at the time the treaty was signed: Sioui, supra, at pp. 1068-69.

4. In searching for the common intention of the parties, the integrity and honour of

the Crown is presumed: Badger, supra, at para. 41.

5. In determining the signatories’ respective understanding and intentions, the court

must be sensitive to the unique cultural and linguistic differences between the

parties: Badger, supra, at paras. 52-54; R. v. Horseman, 1990 CanLII 96 (SCC),

[1990] 1 S.C.R. 901, at p. 907.

6. The words of the treaty must be given the sense which they would naturally have

held for the parties at the time: Badger, supra, at paras. 53 et seq.; Nowegijick v.

The Queen, 1983 CanLII 18 (SCC), [1983] 1 S.C.R. 29, at p. 36.

7. A technical or contractual interpretation of treaty wording should be

avoided: Badger, supra; Horseman, supra; Nowegijick, supra.

8. While construing the language generously, courts cannot alter the terms of the

treaty by exceeding what “is possible on the language” or

realistic: Badger, supra, at para. 76; Sioui, supra, at p.

1069; Horseman, supra, at p. 908.

9. Treaty rights of aboriginal peoples must not be interpreted in a static or rigid

way. They are not frozen at the date of signature. The interpreting court must

update treaty rights to provide for their modern exercise. This involves

determining what modern practices are reasonably incidental to the core treaty

right in its modern context: Sundown, supra, at para. 32; Simon, supra, at p. 402.

79

Two specific issues of interpretation arise on this appeal. The answer

to each is found in the foregoing summary of principles.

80

The first issue of interpretation arises from the Court of Appeal’s

apparent suggestion that peace treaties fall in a different category from land cession treaties

for purposes of interpretation, with the result that, when interpreting peace treaties, there is

Page 27

no “presumption” that rights were granted to the aboriginal signatories in exchange for

entering into the treaty. This raises the issue of whether it is useful to slot treaties into

different categories, each with its own rules of interpretation. The principle that each

treaty must be considered in its unique historical and cultural context suggests that

this practice should be avoided.

81

The second issue of interpretation raised on this appeal is whether

extrinsic evidence can be used in interpreting aboriginal treaties, absent ambiguity. Again,

the principle that every treaty must be understood in its historical and cultural

context suggests the answer must be yes. It is true that in R. v. Horse, 1988 CanLII 91

(SCC), [1988] 1 S.C.R. 187, at p. 201, this Court alluded with approval to the strict

contract rule that extrinsic evidence is not admissible to construe a contract in the absence

of ambiguity. However, subsequent decisions have made it clear that extrinsic evidence

of the historic and cultural context of a treaty may be received absent

ambiguity: Sundown, supra, at para. 25; Badger, supra, at para. 52. As Cory J. wrote

in Badger, supra, at para. 52, courts interpreting treaties “must take into account the

context in which the treaties were negotiated, concluded and committed to writing”.

82

The fact that both the words of the treaty and its historic and

cultural context must be considered suggests that it may be useful to approach the

interpretation of a treaty in two steps. First, the words of the treaty clause at issue

should be examined to determine their facial meaning, in so far as this can be

ascertained, noting any patent ambiguities and misunderstandings that may have

arisen from linguistic and cultural differences. This exercise will lead to one or more

possible interpretations of the clause. As noted in Badger, supra, at para. 76, “the scope of

treaty rights will be determined by their wording”. The objective at this stage is to

develop a preliminary, but not necessarily determinative, framework for the

historical context inquiry, taking into account the need to avoid an unduly restrictive

interpretation and the need to give effect to the principles of interpretation.

83

At the second step, the meaning or different meanings which have

arisen from the wording of the treaty right must be considered against the treaty’s

historical and cultural backdrop. A consideration of the historical background may

suggest latent ambiguities or alternative interpretations not detected at first reading. Faced

with a possible range of interpretations, courts must rely on the historical context to

determine which comes closest to reflecting the parties’ common intention. This

determination requires choosing “from among the various possible interpretations of the

common intention the one which best reconciles” the parties’ interests: Sioui, supra, at p.

1069. Finally, if the court identifies a particular right which was intended to pass

from generation to generation, the historical context may assist the court in

determining the modern counterpart of that right: Simon, supra, at pp. 402-

3; Sundown, supra, at paras. 30 and 33.

[My bolding added]

Page 28

[51] The Province’s arguments regarding why there is no sustainable section 35

treaty and aboriginal rights cause of action on the pleaded facts, include that the

Class does not plead the necessary R. v. Powley, 2003 SCC 43, (paras. 30-35)

factors, which that court intended should be a preliminary basis for “indicating the

important components of the future definition [to ascertain Métis claims to section

35 rights]”. The Province argues those principles are also applicable to the Nova

Scotian SIMM, namely:

“Three broad factors as indicia of Métis identity for the purpose of claiming Métis rights

under section 35: self identification, ancestral connection, and community acceptance.

[My bolding added]

[52] In Powley the Court elaborated:¹⁵

10

The term “Métis” 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. Métis communities evolved and flourished prior to the entrenchment of

European control, when the influence of European settlers and political institutions became

pre-eminent. The Royal Commission on Aboriginal Peoples describes this evolution as

follows:

Intermarriage between First Nations and Inuit women and European fur traders and

fishermen produced children, but the birth of new Aboriginal cultures took

longer. At first, the children of mixed unions were brought up in the traditions of

their mothers or (less often) their fathers. Gradually, however, distinct Métis cultures

emerged, combining European and First Nations or Inuit heritages in unique

ways. Economics played a major role in this process. The special qualities and skills

¹⁵It must be borne in mind that section 35(2) of the Constitution Act, 1982 reads: “In this Act, ‘aboriginal peoples of

Canada’ includes the Indian, Inuit and Métis peoples of Canada.” It is arguable that a similar analytical process as

was employed in Powley should operate in relation to the Plaintiffs in the case at Bar. In Powley, the Court was

examining whether “members of the Métis community in and around Sault Ste. Marie enjoy a constitutionally

protected right to hunt for food under the section 35 of the Constitution Act, 1982.” - They answered: “We conclude

that they do” (para. 1). The case at Bar may therefore require a similar analysis if the matter proceeds to trial: the

court would be examining whether “members of the Class” from areas within Nova Scotia enjoy a constitutionally

protected right to hunt for food under section 35 of the Constitution Act, 1982, in the context of whether the

Plaintiffs are properly considered to be “of the tribe of Mi’kmaq Indians inhabiting the Eastern Coast of Nova Scotia

or Acadie” as the wording read in the Treaty of 1752 in Simon, or perhaps whether they are members of “the

Mi’kmaw people” as referenced in relation to the 1760-1 Treaties in Marshall (1999) No. 1 [ and Bernard, 2002

NSCA 5 at para. 37]. However, the Plaintiffs have not pleaded that they are Métis – they plead that they are (my

descriptor) disenfranchised Mi’kmaw (to whom these Powley principles may not be appropriate because they did not

go on to form a “distinct” culture of French/Indian communities as did the Métis). Therefore, different and new

principles arguably should be applied to the claims of the SIMM.

Page 29

of the Métis population made them indispensable members of Aboriginal/non-

Aboriginal economic partnerships, and that association contributed to the shaping of

their cultures. . . . As interpreters, diplomats, guides, couriers, freighters, traders and

suppliers, the early Métis people contributed massively to European penetration of

North America.

The French referred to the fur trade Métis as coureurs de bois (forest runners)

and bois brulés (burnt-wood people) in recognition of their wilderness occupations

and their dark complexions. The Labrador Métis (whose culture had early roots)

were originally called “livyers” or “settlers”, those who remained in the fishing

settlements year-round rather than returning periodically to Europe or

Newfoundland. The Cree people expressed the Métis character in the

term Otepayemsuak, meaning the “independent ones”.

(Report of the Royal Commission on Aboriginal Peoples: Perspectives and Realities,

vol. 4, at pp. 199-200 (“RCAP Report”))

The Métis developed separate and distinct identities, not reducible to the mere fact of

their mixed ancestry: “What distinguishes Métis people from everyone else is that

they associate themselves with a culture that is distinctly Métis” (RCAP Report, vol. 4,

at p. 202).

11

The Métis of Canada share the common experience of having

forged a new culture and a distinctive group identity from their Indian or Inuit and

European roots. This enables us to speak in general terms of “the Métis”. However,

particularly given the vast territory of what is now Canada, we should not be surprised to

find that different groups of Métis exhibit their own distinctive traits and

traditions. This diversity among groups of Métis may enable us to speak of Métis

“peoples”, a possibility left open by the language of s. 35(2), which speaks of the “Indian,

Inuit and Métis peoples of Canada”.

12

We would not purport to enumerate the various Métis peoples

that may exist. Because the Métis are explicitly included in s. 35, it is only necessary

for our purposes to verify that the claimants belong to an identifiable Métis

community with a sufficient degree of continuity and stability to support a site-

specific aboriginal right. A Métis community can be defined as a group of Métis with

a distinctive collective identity, living together in the same geographic area and

sharing a common way of life. The respondents here claim membership in the Métis

community centred in and around Sault Ste. Marie. It is not necessary for us to

decide, and we did not receive submissions on, whether this community is also a Métis

“people”, or whether it forms part of a larger Métis people that extends over a wider

area such as the Upper Great Lakes.

17

As indicated above, the inclusion of the Métis in s. 35 is not

traceable to their pre-contact occupation of Canadian territory. The purpose of s.

Page 30

35 as it relates to the Métis is therefore different from that which relates to the

Indians or the Inuit. The constitutionally significant feature of the Métis is their

special status as peoples that emerged between first contact and the effective

imposition of European control. The inclusion of the Métis in s. 35 represents

Canada’s commitment to recognize and value the distinctive Métis cultures, which

grew up in areas not yet open to colonization, and which the framers of

the Constitution Act, 1982 recognized can only survive if the Métis are protected along

with other aboriginal communities.

18

With this in mind, we proceed to the issue of the correct test to

determine the entitlements of the Métis under s. 35 of the Constitution Act, 1982. The

appropriate test must then be applied to the findings of fact of the trial judge. We

accept Van der Peet as the template for this discussion. However, we modify the pre-

contact focus of the Van der Peet test when the claimants are Métis to account for the

important differences between Indian and Métis claims. Section 35 requires that we

recognize and protect those customs and traditions that were historically important features

of Métis communities prior to the time of effective European control, and that persist in the

present day. This modification is required to account for the unique post-contact

emergence of Métis communities, and the post-contact foundation of their aboriginal

rights.

(1) Characterization of the Right

19

The first step is to characterize the right being claimed: Van der

Peet, supra, at para. 76. Aboriginal hunting rights, including Métis rights, are contextual

and site-specific. The respondents shot a bull moose near Old Goulais Bay Road, in the

environs of Sault Ste. Marie, within the traditional hunting grounds of that Métis

community. They made a point of documenting that the moose was intended to provide

meat for the winter. The trial judge determined that they were hunting for food, and there is

no reason to overturn this finding. The right being claimed can therefore be characterized

as the right to hunt for food in the environs of Sault Ste. Marie.

20

We agree with the trial judge that the periodic scarcity of moose does

not in itself undermine the respondents’ claim. The relevant right is not to

hunt moose but to hunt for food in the designated territory.

…

23

In addition to demographic evidence, proof of shared customs,

traditions, and a collective identity is required to demonstrate the existence of a Métis

community that can support a claim to site-specific aboriginal rights. We recognize

that different groups of Métis have often lacked political structures and have experienced

shifts in their members’ self-identification. However, the existence of an identifiable

Métis community must be demonstrated with some degree of continuity and stability

in order to support a site-specific aboriginal rights claim. Here, we find no basis for

overturning the trial judge’s finding of a historic Métis community at Sault Ste.

Marie. This finding is supported by the record and must be upheld.

Page 31

(3) Identification of the Contemporary Rights-Bearing

Community

24

Aboriginal rights are communal rights: They must be grounded

in the existence of a historic and present community, and they may only be exercised

by virtue of an individual’s ancestrally based membership in the present

community. The trial judge found that a Métis community has persisted in and around

Sault Ste. Marie despite its decrease in visibility after the signing of the Robinson-Huron

Treaty in 1850. While we take note of the trial judge’s determination that the Sault

Ste. Marie Métis community was to a large extent an “invisible entity” ([1999] 1

C.N.L.R. 153, at para. 80) from the mid-19th century to the 1970s, we do not take this

to mean that the community ceased to exist or disappeared entirely.

…

27

We conclude that the evidence supports the trial judge’s finding

that the community’s lack of visibility was explained and does not negate the

existence of the contemporary community. There was never a lapse; the Métis

community went underground, so to speak, but it continued. Moreover, as indicated

below, the “continuity” requirement puts the focus on the continuing practices of

members of the community, rather than more generally on the community itself, as

indicated below.

28

The trial judge’s finding of a contemporary Métis community in and

around Sault Ste. Marie is supported by the evidence and must be upheld.

(4) Verification of the Claimant’s Membership in the Relevant

Contemporary Community

29

While determining membership in the Métis community might

not be as simple as verifying membership in, for example, an Indian band, this does

not detract from the status of Métis people as full-fledged rights-bearers. As Métis

communities continue to organize themselves more formally and to assert their

constitutional rights, it is imperative that membership requirements become more

standardized so that legitimate rights-holders can be identified. In the meantime,

courts faced with Métis claims will have to ascertain Métis identity on a case-by-case

basis. The inquiry must take into account both the value of community self-

definition, and the need for the process of identification to be objectively

verifiable. In addition, the criteria for Métis identity under s. 35 must reflect the

purpose of this constitutional guarantee: to recognize and affirm the rights of the

Métis held by virtue of their direct relationship to this country’s original inhabitants

and by virtue of the continuity between their customs and traditions and those of

their Métis predecessors. This is not an insurmountable task.

Page 32

30

We emphasize that we have not been asked, and we do not

purport, to set down a comprehensive definition of who is Métis for the purpose of

asserting a claim under s. 35. We therefore limit ourselves to indicating the

important components of a future definition, while affirming that the creation of

appropriate membership tests before disputes arise is an urgent priority. As a

general matter, we would endorse the guidelines proposed by Vaillancourt Prov. J.

and O’Neill J. in the courts below. In particular, we would look to three broad

factors as indicia of Métis identity for the purpose of claiming Métis rights under s.

35: self-identification, ancestral connection, and community acceptance.

31

First, the claimant must self-identify as a member of a Métis

community. This self-identification should not be of recent vintage: While an individual’s

self-identification need not be static or monolithic, claims that are made belatedly in order

to benefit from a s. 35 right will not satisfy the self-identification requirement.

32

Second, the claimant must present evidence of an ancestral

connection to a historic Métis community. This objective requirement ensures that

beneficiaries of s. 35 rights have a real link to the historic community whose practices

ground the right being claimed. We would not require a minimum “blood quantum”,

but we would require some proof that the claimant’s ancestors belonged to the historic

Métis community by birth, adoption, or other means. Like the trial judge, we would

abstain from further defining this requirement in the absence of more extensive argument

by the parties in a case where this issue is determinative. In this case, the Powleys’ Métis

ancestry is not disputed.

33

Third, the claimant must demonstrate that he or she is accepted by

the modern community whose continuity with the historic community provides the

legal foundation for the right being claimed. Membership in a Métis political

organization may be relevant to the question of community acceptance, but it is not

sufficient in the absence of a contextual understanding of the membership

requirements of the organization and its role in the Métis community. The core of

community acceptance is past and ongoing participation in a shared culture, in the

customs and traditions that constitute a Métis community’s identity and distinguish it

from other groups. This is what the community membership criterion is all about. Other

indicia of community acceptance might include evidence of participation in

community activities and testimony from other members about the claimant’s

connection to the community and its culture. The range of acceptable forms of evidence

does not attenuate the need for an objective demonstration of a solid bond of past and

present mutual identification and recognition of common belonging between the

claimant and other members of the rights-bearing community.

34

It is important to remember that, no matter how a contemporary

community defines membership, only those members with a demonstrable ancestral

connection to the historic community can claim a s. 35 right. Verifying membership is

Page 33

crucial, since individuals are only entitled to exercise Métis aboriginal rights by virtue

of their ancestral connection to and current membership in a Métis community.

35

In this case, there is no reason to overturn the trial judge’s finding that the

Powleys are members of the Métis community that arose and still exists in and around

Sault Ste. Marie. We agree with the Court of Appeal that, in the circumstances of this

case, the fact that the Powleys’ ancestors lived on an Indian reserve for a period of

time does not negate the Powleys’ Métis identity. As the Court of Appeal indicated,

“E.B. Borron, commissioned in 1891 by the province to report on annuity payments to the

Métis, was of the view that Métis who had taken treaty benefits remained Métis and he

recommended that they be removed from the treaty annuity lists” ((2001), 2001 CanLII

24181 (ON CA), 53 O.R. (3d) 35, at para. 139, per Sharpe J.A.). We emphasize that the

individual decision by a Métis person’s ancestors to take treaty benefits does not

necessarily extinguish that person’s claim to Métis rights. It will depend, in part, on

whether there was a collective adhesion by the Métis community to the treaty. Based

on the record, it was open to the trial judge to conclude that the rights of the Powleys’

ancestors did not merge into those of the Indian band.

[My bolding added]

[53] In R. v. Sparrow, [1990] 1 SCR 1075, the court considered what is the “test

for prima facie interference with an existing aboriginal right, and for the

justification of such an interference... The first question to be asked is whether the

legislation in question has the effect of interfering with an existing aboriginal right.

If it does have such an effect, it represents a prima facie infringement of section

35(1).” (paras. 67-68)¹⁶

[54] The Province argues defects in the pleadings include:

1.

the members of the Class do not sufficiently plead the Powley factors

a.

That aboriginal and treaty rights are contextual and site-

specific

b. they do not identify the historic section 35 rights bearing

community

¹⁶The Province argues that, at most, it made a “policy” decision to no longer recognize ATRA Passports as reliable

indicators of what claimant aboriginal persons within Nova Scotia are entitled to exercise section 35 rights. That

nomenclature is arguably of no assistance, as it distracts from the real question which is: what effect did the

Province’s decision have? While the Province’s initial decision to consider ATRA Passports as reliable indicators of

which persons were entitled to exercise section 35 right, arguably did not create section 35 rights for those persons,

however, it treated them as such. The Plaintiffs have pleaded they have existing section 35 rights and, by its reversal

of that 28 years of recognition, the Province has effected a prima facie interference with a (pleaded) existing

aboriginal right.

Page 34

c.

they do not identify the modern section 35 rights bearing

community with which each has “continuity with the historic

community”

2.

the members of the class do not sufficiently plead material facts

regarding:

a.

b.

c.

support for their self identification as Mi’Kmaw; and

“a real link” to the historic rights bearing community;

which support their claim of acceptance as Mi’Kmaw

(“core of community acceptance is past and ongoing

participation in a shared culture, in the customs and traditions

that constituted the community’s identity… Need for an

objective demonstration of a solid bond of past and present

mutual identification and recognition”) by the modern section

35 rights bearing community;¹⁷

d.

the practices that were integral to their distinctive culture,

including establishing continuity thereof between the historic

and contemporary rights bearing community.

[55] As noted earlier, the Province does not dispute that Indian Act Band

members/ Status Indians in Nova Scotia have section 35 rights. Mr. Cooper is a

Status Indian, but because he is not associated with a Band, he is on the Atlantic

General List of Indians – he is not entitled to exercise section 35 rights to hunt.

¹⁷The Province argues that the 13 Indian Act Bands, as section 35 rights bearing groups, have since 2019 delegated

authority for the representation of all Mi’Kmaw in Nova Scotia, and determination of what individuals constitute the

Mi’Kmaw in Nova Scotia, which delegation was “realized… with the creation of the KMKNO… empowered by the

Assembly and the majority of the 13 First Nations to conduct consultations with Canada and Nova Scotia on their

behalf”. The Plaintiffs say that the Bands cannot legally represent them. The Plaintiffs have not delegated their rights

to represent them to the Bands; the Bands’ authority is found in federal legislation, and therefore do not have the

capacity to represent them since the Plaintiffs cannot be members of Indian Act Bands; and their interests are in

conflict with those of Band members. Consequently, the Bands cannot decide whether the Plaintiffs have section 35

rights entitlement.

Page 35

[56] The central issue is whether the Plaintiffs have pleaded sufficient facts to

establish that they too are part of the aboriginal community, (both historic and

present), such that, they have section 35 rights.

[57] To the extent that the Plaintiffs rely thereon, they have pleaded the three

Powley factors (self identification, ancestral connection, and community

acceptance).¹⁸

[58] Three of the plaintiffs (save Mr. Joyce) has expressly pleaded such. Three

have also identified an ancestral community by way of geographic location (i.e.

Cooper-Shubenacadie/Gold River/New Germany; Langley-Shubenacadie/New

Germany and Sable River; Langille-Wycomocagh, Cape Breton. Mr. Joyce pleads

he is “a direct descendent of Jean Baptiste Cope, a Mi’kmaw signatory to the 1752

Treaty”, and as his heir he is entitled to exercise section 35 rights. Though he is not

a Status Indian as Mr. Simon was, and does not identify from which geographically

located Mi’kmaw community his family hails, the relevant jurisprudence could

arguably be in his favour, hence Mr. Joyce could be considered as Mi’kmaw for

present purposes (see paras. 39-41 of the Statement of Claim).

[59] Yes, inter alia, the jurisprudence has found that:

aboriginal and treaty rights are communal rights;

there must be a link between the modern and historic section 35 rights bearing community,

and the claimants must plead that they have exercised these section 35 rights through the

modern community’s consent and authority;

the claimants must be part of the modern community and have continued the section 35

rights (at issue) practices integral to the community.

¹⁸While the Powley case dealt with Métis claims, the inclusion of individuals such as the Plaintiffs within the definition

of “Aboriginal peoples of Canada” may be more likely after the Supreme Court of Canada in Desautel at para. 48 (see

para. 68 of the trial decision) which referenced the section 35 rights there as not being held by a member of an

Indian Act Band, but rather by a “successor group” which “continues to exist today as a group”. To the extent

that the Plaintiffs can be analogized with the Métis, it may be noteworthy that the courts in New Brunswick have

concluded that there is no extant Métis population in New Brunswick: Canada v Vautour, 2017 NBCA 21-leave to

appeal denied February 8, 2018; and Landry v New Brunswick (Attorney General) 2020 NBCA -38 leave to appeal

denied April 22, 2021. Moreover, as indicated earlier, the Métis claims analysis may not be directly applicable to the

claim of the SIMM in Nova Scotia, given the differing historical and cultural contexts in other parts of Canada. The

SIMM do not claim to be Métis. They claim to be Mi’Kmaw; and the relevant law continues to evolve in relation to

previously settled jurisprudential constructs and analysis.

Page 36

[60] However, although not technically constituting “the Crown”, courts

inherently also have an obligation to not lose sight of our responsibility to advance

reconciliation, which is linked to maintaining the honour of the Crown, and where

appropriate, to act in a manner that maintains the honour of the Crown vis-à-vis the

aboriginal peoples.¹⁹

[61] As the court stated in Daniels v. Canada, 2016 SCC 12 (which upheld a

declaration that : “Métis and non-status Indians are “Indians” under s. 91(24) of

the Constitution Act, 1867:” – and in which case the NCNS was an intervener):

[1]

ABELLA J. — As the curtain opens wider and wider on the history

of Canada’s relationship with its Indigenous peoples, inequities are increasingly

revealed and remedies urgently sought. Many revelations have resulted in good faith

policy and legislative responses, but the list of disadvantages remains robust. This

case represents another chapter in the pursuit of reconciliation and redress in that

relationship.

…

[13]

Both federal and provincial governments have, alternately, denied

having legislative authority over non-status Indians and Métis. As the trial judge

found, when Métis and non-status Indians have asked the federal government to assume

legislative authority over them, it tended to respond that it was precluded from doing so

by s. 91(24). And when Métis and non-status Indians turned to provincial governments,

they were often refused on the basis that the issue was a federal one.

[14]

This results in these Indigenous communities being in a

jurisdictional wasteland with significant and obvious disadvantaging consequences, as

was recognized by Phelan J.:

One of the results of the positions taken by the federal and provincial

governments and the “political football — buck passing” practices is that financially

[Métis and non-status Indians] have been deprived of significant funding for their

affairs. . . .

. . . the political/policy wrangling between the federal and provincial

governments has produced a large population of collaterally damaged [Métis

¹⁹This may be particularly so on a procedural motion such as this one – which in this case significantly affects the

Plaintiffs’ “access to justice”.

Page 37

and non-status Indians]. They are deprived of programs, services and intangible

benefits recognized by all governments as needed. [paras. 107-8]

See also Lovelace v. Ontario, 2000 SCC 37 (CanLII), [2000] 1 S.C.R. 950, at para. 70.

[15]

With federal and provincial governments refusing to acknowledge

jurisdiction over them, Métis and non-status Indians have no one to hold accountable

for an inadequate status quo. The Crown’s argument, however, was that since a finding

of jurisdiction under s. 91(24) does not create a duty to legislate, it is inappropriate to

answer a jurisdictional question in a legislative vacuum. It is true that finding Métis and

non-status Indians to be “Indians” under s. 91(24) does not create a duty to legislate,

but it has the undeniably salutary benefit of ending a jurisdictional tug-of-war in

which these groups were left wondering about where to turn for policy redress. The

existence of a legislative vacuum is self-evidently a reflection of the fact that neither level

of government has acknowledged constitutional responsibility. A declaration would

guarantee both certainty and accountability, thereby easily reaching the required

jurisprudential threshold of offering the tangible practical utility of the resolution of a

longstanding jurisdictional dispute.

[16]

We are left then to determine whether Métis and non-status Indians are

in fact included in the scope of s. 91(24).

[17]

There is no consensus on who is considered Métis or a non-status

Indian, nor need there be. Cultural and ethnic labels do not lend themselves to neat

boundaries. ‘Métis’ can refer to the historic Métis community in Manitoba’s Red River

Settlement or it can be used as a general term for anyone with mixed European and

Aboriginal heritage. Some mixed-ancestry communities identify as Métis, others as Indian:

There is no one exclusive Metis People in Canada, anymore than there is no one

exclusive Indian people in Canada. The Metis of eastern Canada and northern

Canada are as distinct from Red River Metis as any two peoples can be. . . . As early

as 1650, a distinct Metis community developed in LeHeve [sic], Nova Scotia,

separate from Acadians and Micmac Indians. All Metis are aboriginal people. All

have Indian ancestry.

(R. E. Gaffney, G. P. Gould and A. J. Semple, Broken Promises: The Aboriginal

Constitutional Conferences (1984), at p. 62, quoted in Catherine Bell, “Who Are The Metis

People in Section 35(2)?” (1991), 29 Alta. L. Rev. 351, at p. 356.)

Page 38

[18]

The definitional contours of ‘non-status Indian’ are also imprecise.

Status Indians are those who are recognized by the federal government as registered under

the Indian Act, R.S.C. 1985, c. I-5. Non-status Indians, on the other hand, can refer to

Indians who no longer have status under the Indian Act, or to members of mixed

communities who have never been recognized as Indians by the federal government. Some

closely identify with their Indian heritage, while others feel that the term Métis is

more reflective of their mixed origins.

[19]

These definitional ambiguities do not preclude a determination

into whether the two groups, however they are defined, are within the scope of s.

91(24). I agree with the trial judge and Federal Court of Appeal that the historical,

philosophical, and linguistic contexts establish that “Indians” in s.

91(24) includes all Aboriginal peoples, including non-status Indians and Métis.

[20]

To begin, it is unnecessary to explore the question of non-status

Indians in a full and separate analysis because the Crown conceded in oral argument,

properly in my view, that they are recognized as “Indians” under s. 91(24), a

concession that reflects the fact that the federal government has used its authority

under s. 91(24) in the past to legislate over non-status Indians as “Indians”.[2] While a

concession is not necessarily determinative, it does not, on the other hand, make the

granting of a declaration redundant, as the Crown suggests. Non-status Indians have been a

part of this litigation since it started in 1999. Earlier in these proceedings, the Crown

took the position that non-status Indians did not fall within federal jurisdiction

under s. 91(24). As the intervener Aseniwuche Winewak Nation of Canada submitted

in oral argument, excluding non-status Indians from the first declaration would send

them “[b]ack to the drawing board”. To avoid uncertainty in the future, therefore,

there is demonstrable utility in a declaration that confirms their inclusion.

[21]

We are left then to consider primarily whether the Métis are included.

[My bolding added]

[62] Most of the Province’s arguments are a mix of claimed deficiencies in the

pleadings that can be characterized as: more detail is required - brushing

uncomfortably close to insistence that evidence-like details of material facts should

Page 39

be pleaded; less conclusory statements should be pleaded; and that there are overt

material omissions.²⁰

[63] I find Justice Hugessen’s statements in Shubenacadie Indian Band v.

Canada (Minister of Fisheries and Oceans), 2001 FCT 181, (in which the NCNS

intervened; affirmed 2002 CAF 255) albeit in a Federal Court proceeding, useful in

considering the issues in the case at Bar:

5

I turn now to the second aspect of the motion which is to strike out the Statement of

Claim as disclosing no reasonable cause of action. The principle is well established that a

party bringing a motion of this sort has a heavy burden and must show that indeed it is

beyond doubt that the case could not succeed at trial. Furthermore, the Statement of Claim

is to be read generously and with an open mind and it is only in the very clearest of cases

that the Court should strike out the Statement of Claim. This, in my view, is especially the

case in this field, that is the field of aboriginal law, which in recent years in Canada

has been in a state of rapid evolution and change. Claims which might have been

considered outlandish or outrageous only a few years ago are now being accepted.

6

If there is in a pleading a glimmer of a cause of action, even though vaguely or

imperfectly stated, it should, in my view, be allowed to go forward. In this respect the

²⁰The Province’s arguments identify the “Catch-22” nature of the Plaintiffs’ claims. For example, the argument that

pursuant to the strictures of the present jurisprudential construct the Plaintiffs have no easily identifiable common

section 35 rights bearing community. Why is that so? What if their “community” is dispersed because of a

fragmentation and displacement of their community by past and present governmental authority and actions? Should

not such a dispersed existing community, with members who can trace their descendancy to the Mi’Kmaw of Nova

Scotia, be permitted to fashion by collective, though not necessarily unanimous approval, a surrogate body such as

the NCNS to act as a mechanism for consultation with government, and for authority to determine which individuals

are qualified to exercise section 35 rights? The lack of any other easily identified modern community body

available for consultation, generally endorsed by the SIMM, which previously was accepted by the Province as

authoritative insofar as determining which of its individual members are validly accepted as entitled to exercise

section 35 rights, arguably leaves them without redress. Although they are not Status Indians/Band members,

nevertheless they may have an arguable entitlement to exercise section 35 rights as individuals. Merely because they

hail from dispersed Mi’Kmaw communities within Nova Scotia, are their section 35 rights such that they simply

cannot be actualized? They stand in contrast to Status Indians associated with Bands, who are governed pursuant to

federal legislation, which has unilaterally established Bands and Reserves for them (the Federal government has also

recognized the ATRA Passports issued by the NCNS, and apparently still does in relation to federal jurisdiction

fisheries)- and which governmental structures were imposed upon them. Simply because the Province takes the

position that there is no convenient and accepted mechanism for it to consult the SIMM, represented here by the

Plaintiffs, are they, as in Daniels, “in a jurisdictional wasteland with significant and obvious disadvantaging

consequences”? Notably in Powley at para. 49 the court stated: “[the Crown] advances a subsidiary argument for

justification based on the alleged difficulty of identifying who is Métis. As discussed, the Métis identity of a

particular claimant should be determined on proof of self identification, ancestral connection, and community

acceptance. The development of a more systematic method of identifying treaty rights holders for the purpose

of enforcing hunting regulations is an urgent priority. That said, the difficulty of identifying members of the

Métis community must not be exaggerated as a basis for defeating their rights under the Constitution of

Canada”.

Page 40

motion to strike varies dramatically from the situation where a party brings a motion for

summary judgment, where the Court must grapple with the issue of law in limine. Here, the

Court must read the Statement of Claim, as I say, with a generous eye and with a view to

allowing the plaintiff, if he can, to make his case.

7

In this case, the plaintiffs based their claim upon an assertion that they are the

beneficiaries of aboriginal rights devolved both from treaty and at common law. The

essence of their assertions is found in paragraphs 18 through 20 of the Amended Statement

of Claim which I shall reproduce here:

18. The Shubenacadie Band was created as an Indian Band under the Indian

Act, R.S.C. 1985, c. I-5, as amended, in or about 1960. Prior to the creation of

the Shubenacadie Band, the Mi'kmaq in Nova Scotia were, and were treated

and regarded by Her Majesty the Queen and the Government of Nova Scotia

prior to Confederation in 1867, and by Her Majesty the Queen, the Government

of Canada and the Government of Nova Scotia after Confederation in 1867, as

one band or tribe of Mi'kmaq Indians. Between 1867 and about 1960, Her

Majesty the Queen in right of Canada treated all Mi'kmaq in Nova Scotia as entitled

to the same rights, benefits and entitlements, whether under treaties or otherwise.

Mi'kmaq persons have as far as memory extends always hunted, fished and gathered,

lived and sustained themselves in Nova Scotia throughout the territory of Nova

Scotia, without objection or hindrance based on band or community affiliation. The

creation of the thirteen (13) Indian Act bands under the authority of the Indian

Act, R.S.C. 1985, c. I-5, as amended, did not purport to, and did not, extinguish

or terminate rights and entitlements under pre-Confederation Indian treaties.

The Minister is estopped from raising issues of Band or community affiliation to

prevent the Band and its members from fishing in St. Mary's Bay. The Band

also pleads and relies upon acquiescence, waiver and laches.

19. The members of the Band, including the individual Plaintiffs, are by blood

heirs and successors of the Nova Scotia Mi'kmaq who signed treaties with the

British in 1760-61, and are heirs at law and entitled to rely upon the rights and

benefits of the Mi'kmaq Treaties of 1760-61 when fishing in St. Mary's Bay, Digby

County, Nova Scotia.

20. In addition to the above-noted, the Band and its members, including the

individual Plaintiffs, are entitled to hunt, fish and gather, in St. Mary's Bay, Digby

County, and elsewhere in the Province of Nova Scotia without geographic limit,

under the Mi'kmaq Treaties of 1760-61, as an aspect of the surviving substance of

those Treaties, due to practical necessity and convenience, and intervening events

since 1761, in that:

a. By Confederation and the Constitution Act, 1867, constitutional

jurisdiction over the hunting, fishing and gathering activities of the

Mi'kmaq was divided between Canada and the provinces, and a clear

Page 41

constitutional geographic and juridical unit, namely, the Province of

Nova Scotia, was recognized, created and continued, whose boundaries

provide a constitutional and juridical base of reference;

b. The natural resources on which the Mi'kmaq were traditionally dependent

have become scarce and/or depleted and/or geographically dispersed;

c. The Mi'kmaq have been confined as communities to Indian reserve lands

that are isolated and economically marginal, on and from which lands and

their environs the Mi'kmaq are unable to sustain themselves; and

d. The Mi'kmaq have through licensing and leasing requirements, regulatory

prohibitions and other management measures, such as limited entry

fisheries, been excluded and denied entry and the ability to obtain a

moderate livelihood through harvesting and sale of resources.

8

This pleading certainly does not lack for broadness and generality. It is very far

reaching indeed in its scope and the vagueness of its claims. Those, however, are not

fatal defects in a statement of claim so long as the cause of action emerges from a

reading of it. I think those paragraphs can be roughly summarized as saying that the

plaintiffs are Nova Scotia Mi'kmaqs, that all Nova Scotia Mi'kmaqs are and have always

been members of a single aboriginal community that enjoys and has always enjoyed the

right to fish unhindered in the waters off the coasts of Nova Scotia, that those rights were

enshrined and confirmed in a series of treaties entered into by the Crown in 1760 and 1761

and that those treaties, although separate, are to be likened in law to a single treaty to

which the various Mi'kmaq communities in Nova Scotia in 1760 and 1761 adhered much

as happened historically in the case of the numbered treaties in Western Canada.

9

In my view, there is here, although stated with great generality, the essence of a

claim to aboriginal rights both by treaty and at common law. Both parties have referred

to and relied upon the two decisions of the Supreme Court of Canada in the single case

of R. v. Marshall². The defendant says that the decision in Marshall establishes that the

treaties referred to by the plaintiffs and relied on by them were found by the Supreme

Court to in fact be separate treaties applicable each only to the individual community with

which it was concluded. There is certainly language in Marshall which would support that

view, but it is extremely difficult to reconcile that language with other language to be

found in Marshall and with the undoubted fact that the upshot of the Marshall case, and

there was only one case, was that Marshall was in the end acquitted of fishing in an

area to which he had by residence and band affiliation no claim under any treaty

which had been entered into by the band to which he belonged.

10

It would not, in my view, be appropriate on a motion of this sort to attempt to

reconcile these views. It is going to be a difficult task that the judge at trial, and ultimately

Page 42

perhaps the Supreme Court itself, will have to deal with, but it would not be right in a

situation as obscure as this one to deprive the plaintiffs of the right to present their claim.

11 There is also the fact that the findings in Marshall were, in the final analysis,

based upon the evidence in that case and that the plaintiffs here allege facts which, if

proven, and they must be taken as proven at this stage, might well lead to

diametrically different findings. For their part, the plaintiffs also refer to

the Marshall decision, and particularly Marshall, as well as some other decisions of the

Courts dealing with aboriginal rights as supplying the deficiencies in their pleadings to

which I have already made reference. In my view, that is not a proper way to allege facts,

by referring to and supposedly incorporating jurisprudence.

12 Manifestly, in my opinion, the defendant Crown in this case can properly make a

request for particulars. But this is not a motion for particulars and I do not have to deal

with that. In fact, as the practice in this Court requires, no motion for particulars should be

made unless particulars have in the first instance been requested by way of letter and it is

only in the event that particulars are either not furnished or if furnished are inadequate that

the Court need involve itself with the question of particulars. There can be no doubt that

for the defendant to intelligently answer the claim, knowing the case it has to meet, it may

make a request of the plaintiffs' solicitor for particulars, but that is a very different thing

from the plaintiffs failing to state a cause of action.

[My bolding added]

[64] Justice Hugessen’s decisions were affirmed: 2002 CAF 255. Therein, Justice

Sexton for that court stated:

2

The Plaintiffs claim that as Nova Scotia Mi'Kmaqs they are and have always been

members of a single aboriginal community that enjoys and has always enjoyed the right to

fish unhindered in the waters off the coast of Nova Scotia. They say that those rights were

enshrined and confirmed in a series of treaties entered into by the Crown in 1760 and 1761

and that those treaties, although separate, are to be likened in law to a single treaty to

which the various Mi'Kmaq communities in Nova Scotia in 1760 and 1761 adhered.

3

The Appellant argues that the Plaintiffs have failed to plead the necessary

material facts to support each essential element required to make out a reasonable cause

of action. The Appellants main argument seemed to be that because the Plaintiffs have not

pleaded that they had authorization from the Mi'Kmaq Band to exercise fishing rights, that

the Statement of Claim is wholly defective. Further, the Appellant argues that the

Plaintiffs must specifically plead which treaties they rely upon, the relevant written

and oral terms of each treaty, the material facts to make out a sufficient connection to

the local community which was a signatory to the specific treaty upon which the

Plaintiffs rely, material facts to make out that St. Mary's Bay is within the traditional

fishing grounds of the local community which was the signatory to the specific treaty

upon which the Plaintiffs rely, and material facts to make out that lobster was

Page 43

traditionally fished by the local community which was a signatory to a treaty upon

which the Plaintiffs rely.

4

We agree with the Motions Judge when he said that:

This pleading certainly does not lack for broadness and generality. It is very far

reaching in its scope and the vagueness of its claims. Those, however, are not fatal

defects in a statement of claim so long as the cause of action emerges from a reading

of it.

5

In essence what the Appellant seeks is particulars, which is what the Motions Judge

suggested. That avenue is still open to the Appellant.

6

Although the pleading is very broad and encompassed in general terms, these are

not such defects as to permit the Statement of Claim to be struck out so long as a cause of

action, however tenuous, can be gleaned from a perusal of the Statement of Claim.

We agree with the Motions Judge that a party bringing a motion of this sort has a

heavy burden and must show that it is beyond doubt that the case cannot possibly

succeed at trial. Only if there is no chance of success, or to put it another way, if the

action is certain to fail, can the Statement of Claim be struck out. Hunt v. T & N plc,

[1990] 2 S.C.R. 959 (S.C.C.).

[My bolding added]

[65] Similarly in Daniels, 2016 SCC 12, Justice Abella stated:

2 Three declarations were sought by the plaintiffs when this litigation was launched in

1999:

1. That Métis and non-status Indians are "Indians" under s. 91(24);

2. That the federal Crown owes a fiduciary duty to Métis and non-status Indians;

And

3. That Métis and non-status Indians 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.

3

Section 91(24) of the Constitution Act, 1867 states that:

91. ... it is hereby declared that ... the exclusive Legislative Authority of the

Parliament of Canada extends to all Matters coming within the Classes of Subjects

next hereinafter enumerated ...

Page 44

. . . . .

24. Indians, and Lands reserved for the Indians.

4

The trial judge, Phelan J., made a number of key factual findings in his thoughtful and

thorough reasons.¹As early as 1818, the government used "Indian" as a general term

to refer to communities of mixed Aboriginal and European background. The federal

government considered Métis to be "Indians" in various treaties and pre-

Confederation statutes, and considered Métis to be "Indians" under s. 91(24) in

various statutes and policy initiatives spanning from Confederation to modern day.

Moreover, the purpose of s. 91(24) was closely related to the expansionist goals of

Confederation. The historical and legislative evidence shows that expanding the country

across the West was one of the primary goals of Confederation. Building a national railway

was a key component of this plan.

5

Accordingly, the purposes of s. 91(24) were "to control Native people and

communities where necessary to facilitate development of the Dominion; to honour the

obligations to Natives that the Dominion inherited from Britain ... [and] eventually to

civilize and assimilate Native people" (para. 353). Since much of the North-Western

Territory was occupied by Métis, only a definition of "Indians" in s. 91(24) that included "a

broad range of people sharing a Native hereditary base" (para. 566) would give Parliament

the necessary authority to pursue its agenda.

6

His conclusion was that in its historical, philosophical, and linguistic contexts,

"Indians" under s. 91(24) is a broad term referring to all Indigenous peoples in

Canada, including non-status Indians and Métis.

7

He found that since neither the federal nor provincial governments acknowledged that

they had jurisdiction over Métis and non-status Indians, the declaration would alleviate the

constitutional uncertainty and the resulting denial of material benefits. There was

therefore practical utility to the first declaration being granted, namely, that Métis

and non-status Indians are included in what is meant by "Indians" in s. 91(24). He

did not restrict the definition of either group.

8

He declined, however, to grant the second and third declarations on the grounds that

they were vague and redundant. It was already well established in Canadian law that the

federal government was in a fiduciary relationship with Canada's Aboriginal peoples and

that the federal government had a duty to consult and negotiate with them when their rights

were engaged. Restating this in declarations would be of no practical utility.

9

The Federal Court of Appeal accepted the trial judge's findings of fact, including

that "Indians" in s. 91(24) included all Indigenous peoples generally. It therefore

upheld the trial judge's decision to grant the first declaration, but narrowed its scope

to exclude non-status Indians and include only those Métis who satisfied the three

criteria from R. v. Powley, [2003] 2 S.C.R. 207(S.C.C.). While it was of the view that

Page 45

non-status Indians were clearly "Indians", setting this out in a declaration would be

redundant and of no practical usefulness. For the same reasons as the trial judge, it declined

to grant the second and third declarations.

10 Before this Court, the appellants sought to restore the first declaration as

granted by the trial judge, not as restricted by the Federal Court of Appeal. In

addition, they asked that the second and third declarations be granted. The Crown

cross-appealed, arguing that none of the declarations should be granted. For the following

reasons, I agree generally with the trial judge.

…

Analysis

…

16 We are left then to determine whether Métis and non-status Indians are in fact

included in the scope of s. 91(24).

17 There is no consensus on who is considered Métis or a non-status Indian, nor

need there be. Cultural and ethnic labels do not lend themselves to neat boundaries.

'Métis' can refer to the historic Métis community in Manitoba's Red River Settlement

or it can be used as a general term for anyone with mixed European and Aboriginal

heritage. Some mixed-ancestry communities identify as Métis, others as Indian:

There is no one exclusive Metis People in Canada, anymore than there is no one

exclusive Indian people in Canada. The Metis of eastern Canada and northern

Canada are as distinct from Red River Metis as any two peoples can be. ... As

early as 1650, a distinct Metis community developed in LeHeve [sic], Nova

Scotia, separate from Acadians and Micmac Indians. All Metis are aboriginal

people. All have Indian ancestry.

(R. E. Gaffney, G. P. Gould and A. J. Semple, Broken Promises: The Aboriginal

Constitutional Conferences (1984), at p. 62, quoted in Catherine Bell, "Who Are The Metis

People in Section 35(2)?" (1991), 29 Alta. L. Rev. 351, at p. 356.)

18 The definitional contours of 'non-status Indian' are also imprecise. Status

Indians are those who are recognized by the federal government as registered under

the Indian Act, R.S.C. 1985, c. I-5. Non-status Indians, on the other hand, can refer to

Indians who no longer have status under the Indian Act, or to members of mixed

communities who have never been recognized as Indians by the federal government.

Some closely identify with their Indian heritage, while others feel that the term Métis

is more reflective of their mixed origins.

19 These definitional ambiguities do not preclude a determination into whether the two

groups, however they are defined, are within the scope of s. 91(24). I agree with the trial

judge and Federal Court of Appeal that the historical, philosophical, and linguistic

contexts establish that "Indians" in s. 91(24) includes all Aboriginal peoples,

including non-status Indians and Métis.

Page 46

…

46 A broad understanding of "Indians" under s. 91(24) as meaning 'Aboriginal peoples',

resolves the definitional concerns raised by the parties in this case. Since s. 91(24) includes

all Aboriginal peoples, including Métis and non-status Indians, there is no need to delineate

which mixed-ancestry communities are Métis and which are non-status Indians. They are

all "Indians" under s. 91(24) by virtue of the fact that they are all Aboriginal peoples.

47 Determining whether particular individuals or communities are non-status Indians or

Métis and therefore "Indians" under s. 91(24), is a fact-driven question to be decided on a

case-by-case basis in the future, but it brings us to whether, for purposes of s. 91(24), Métis

should be restricted to the definitional criteria set out in Powley in accordance with the

decision of the Federal Court of Appeal, or whether, as the appellants and some of the

interveners urged, the membership base should be broader.

48 The issue in Powley was who is Métis under s. 35 of the Constitution Act, 1982.

The case involved two Métis hunters who were charged with violating the Game and Fish

Act, R.S.O. 1990, c. G.1. They claimed that the Métis had an Aboriginal right to hunt

for food under s. 35(1). The Court agreed and suggested three criteria for defining

who qualifies as Métis for purposes of s. 35(1):

1 Self-identification as Métis;

2. An ancestral connection to an historic Métis community; and

3. Acceptance by the modern Métis community.

49 The third criterion — community acceptance — raises particular concerns in the context of

this case. The criteria in Powley were developed specifically for purposes of applying s. 35,

which is about protecting historic community-held rights: para. 13. That is why acceptance

by the community was found to be, for purposes of who is included as Métis under s. 35, a

prerequisite to holding those rights. Section 91(24) serves a very different constitutional

purpose. It is about the federal government's relationship with Canada's Aboriginal peoples.

This includes people who may no longer be accepted by their communities because they

were separated from them as a result, for example, of government policies such as Indian

Residential Schools. There is no principled reason for presumptively and arbitrarily

excluding them from Parliament's protective authority on the basis of a "community

acceptance" test.

[My bolding added]

[66] I am satisfied that the pleadings are sustainable.

Page 47

[67] Where the present pleadings are very extensive, a complex amalgam of

factual and legal considerations, and the relevant law is in an unsettled state, ever

evolving, and consequently not predictable with certainty,²¹regarding the

Plaintiffs’ claims of breach of section 35 of the Constitution Act, 1982, I am

satisfied that the pleadings are sustainable.

iii)Breaches of the protection against discrimination afforded to them by

section 15 of the Charter of Rights²²

[68] The Charter reads:

15. (1) Every individual is equal before and under the law and has the right to the equal

protection and equal benefit of the law without discrimination and, in particular, without

discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental

or physical disability.

²¹For example, it is unlikely that before the case went to the Supreme Court of Canada, many pundits, if any, would

have correctly predicted the reasons for the outcome in R v. Desautel, 2021 SCC 17. In the case at Bar, the Province

suggests that a representative action is a more appropriate procedure. An interesting example thereof is found under

the Federal Court Rule enacted in 2008 in response to the Enge v. Canada, 2017 FC 932 decision: Watson v.

Canada, 2020 FC 129 at para. 404.I note that there is jurisprudential uncertainty regarding whether only one

aboriginal group can be the representative of a s. 35 rights bearing “community” (and coincident issues arising

therefrom) - e.g. Enge v. Mandeville, 2013 NWTSC 33 at para. 165; Fort McKay Metis Community Association v.

Metis Nation of Alberta Association, 2019 ABQB 892; Kaska Dena Council v. Yukon, 2019 YKSC 13; and

Desautel, 2021 SCC 17.

²²The case at Bar as argued involves claims of systemic governmental actions. Although in a different context,

matters of preliminary findings of fact have been found to be less concerning where systemic governmental actions

are in issue. For example, at para. 4 in Canada v. Greenwood and Gray, 2021 FCA 186, the court described the class

as certified: “on behalf of a class consisting of, at a minimum, over two hundred thousand potential members. The

class includes, with certain exceptions, virtually everyone who has ever worked for or with the Royal Canadian

Mounted Police (the RCMP) or at RCMP premises, regardless of whether they were Members or employees of the

RCMP or employed in the public service and assigned to work with the RCMP.” In an appeal of a certification of a

class proceeding, and in relation to whether the pleadings revealed a sustainable cause of action, the Federal Court

of Appeal stated: [163] “As for the Crown’s suggestion that there cannot be a class-wide duty of care owed to class

members given the individual considerations that must be addressed in a workplace negligence claim, such assertion

is without foundation. Actions claiming systemic negligence have often been certified: see, for

example, Rumley; Cloud v. Canada (Attorney General), 2004 CanLII 45444 (ON CA), 73 O.R. (3d) 401, [2004]

O.J. No. 4924; and Francis v. Ontario, 2021 ONCA 197, to name only a few. The circumstances in the foregoing

cases are not so different as to render them inapplicable to the case at bar.”

Page 48

[69] It is helpful here to recite paragraph 82 of the amended Statement of Claim,

filed January 28, 2021:

82-The Plaintiffs on their own behalf and on behalf of the Class, state that the conduct of

the Province and its servants or agents as outlined above [the alleged breaches of duty to

consult and failure to uphold the honour of the Crown, and breach of section 35 rights]

constituted a breach of their rights to equal protection and equal benefit of the law without

discrimination under section 15 of the Canadian Charter of Rights and Freedoms, for

which the Province is liable in damages. The Province has discriminated against the

Plaintiffs and the other members of the Class on the basis of race (including the

Province’s inaccurate and discriminatory perception that members of the Class are

not Aboriginal because they do not have status under the Indian Act), aboriginality –

residence, and lack of status under the Indian Act.²³

[70] The touchtone decision from the Supreme Court of Canada is Law v.

Canada, [1999] 1 SCR 497. The headnote, while not authoritative, is in my view

instructive:

General Approach

(1) It is inappropriate to attempt to confine analysis under s. 15(1) of

the Charter to a fixed and limited formula. A purposive and contextual approach to

discrimination analysis is to be preferred, in order to permit the realization of the strong

remedial purpose of the equality guarantee, and to avoid the pitfalls of a formalistic or

mechanical approach.

(2) The approach adopted and regularly applied by this Court to the

interpretation of s. 15(1) focuses upon three central issues: (A) whether a law imposes

differential treatment between the claimant and others, in purpose or effect; (B)

whether one or more enumerated or analogous grounds of discrimination are the

basis for the differential treatment; and (C) whether the law in question has a

purpose or effect that is discriminatory within the meaning of the equality

guarantee. The first issue is concerned with the question of whether the law causes

differential treatment. The second and third issues are concerned with whether the

differential treatment constitutes discrimination in the substantive sense intended

by s. 15(1).

²³As noted earlier, the Plaintiffs are not relying on discrimination “on the basis of race”; and they agree that

regarding para. 60 the Statement of Claim amended, any Band member/ Status Indians should be excluded from the

definition of the Class.

Page 49

(3) Accordingly, a court that is called upon to determine a discrimination claim

under s. 15(1) should make the following three broad inquiries:

A. Does the impugned law (a) draw a formal distinction between the claimant

and others on the basis of one or more personal characteristics, or (b) fail to

take into account the claimant’s already disadvantaged position within

Canadian society resulting in substantively differential treatment between the

claimant and others on the basis of one or more personal characteristics?

B. Is the claimant subject to differential treatment based on one or more

enumerated and analogous grounds?

and

C. Does the differential treatment discriminate, by imposing a burden upon or

withholding a benefit from the claimant in a manner which reflects the

stereotypical application of presumed group or personal characteristics, or

which otherwise has the effect of perpetuating or promoting the view that the

individual is less capable or worthy of recognition or value as a human being or

as a member of Canadian society, equally deserving of concern, respect, and

consideration?

Purpose

(4) In general terms, the purpose of s. 15(1) is to prevent the violation of

essential human dignity and freedom through the imposition of disadvantage, stereotyping,

or political or social prejudice, and to promote a society in which all persons enjoy equal

recognition at law as human beings or as members of Canadian society, equally capable

and equally deserving of concern, respect and consideration.

(5) The existence of a conflict between the purpose or effect of an impugned

law and the purpose of s. 15(1) is essential in order to found a discrimination claim. The

determination of whether such a conflict exists is to be made through an analysis of the full

context surrounding the claim and the claimant.

Comparative Approach

(6) The equality guarantee is a comparative concept, which ultimately requires

a court to establish one or more relevant comparators. The claimant generally chooses the

person, group, or groups with whom he or she wishes to be compared for the purpose of

the discrimination inquiry. However, where the claimant’s characterization of the

comparison is insufficient, a court may, within the scope of the ground or grounds pleaded,

refine the comparison presented by the claimant where warranted. Locating the relevant

comparison group requires an examination of the subject-matter of the legislation and its

effects, as well as a full appreciation of context.

Page 50

Context

(7) The contextual factors which determine whether legislation has the effect

of demeaning a claimant’s dignity must be construed and examined from the perspective of

the claimant. The focus of the inquiry is both subjective and objective. The relevant point

of view is that of the reasonable person, in circumstances similar to those of the claimant,

who takes into account the contextual factors relevant to the claim.

(8) There is a variety of factors which may be referred to by

a s. 15(1) claimant in order to demonstrate that legislation demeans his or her

dignity. The list of factors is not closed. Guidance as to these factors may be found in

the jurisprudence of this Court, and by analogy to recognized factors.

(9) Some important contextual factors influencing the determination of

whether s. 15(1) has been infringed are, among others:

(A) Pre-existing disadvantage, stereotyping, prejudice, or vulnerability

experienced by the individual or group at issue.

The effects of a law as they relate to the important purpose

of s. 15(1) in protecting individuals or groups who are vulnerable,

disadvantaged, or members of “discrete and insular minorities” should always

be a central consideration. Although the claimant’s association with a

historically more advantaged or disadvantaged group or groups is not per

se determinative of an infringement, the existence of these pre-existing factors

will favour a finding that s. 15(1) has been infringed.

(B) The correspondence, or lack thereof, between the ground or grounds on which

the claim is based and the actual need, capacity, or circumstances of the claimant

or others.

Although the mere fact that the impugned legislation takes into

account the claimant’s traits or circumstances will not necessarily be sufficient

to defeat a s. 15(1) claim, it will generally be more difficult to establish

discrimination to the extent that the law takes into account the claimant’s actual

situation in a manner that respects his or her value as a human being or member

of Canadian society, and less difficult to do so where the law fails to take into

account the claimant’s actual situation.

(C) The ameliorative purpose or effects of the impugned law upon a more

disadvantaged person or group in society.

An ameliorative purpose or effect which accords with the purpose

of s. 15(1) of the Charter will likely not violate the human dignity of more

Page 51

advantaged individuals where the exclusion of these more advantaged

individuals largely corresponds to the greater need or the different

circumstances experienced by the disadvantaged group being targeted by the

legislation. This factor is more relevant where the s. 15(1) claim is brought by

a more advantaged member of society.

and

(D) The nature and scope of the interest affected by the impugned law.

The more severe and localized the consequences of the legislation

for the affected group, the more likely that the differential treatment

responsible for these consequences is discriminatory within the meaning

of s. 15(1).

(10) Although the s. 15(1) claimant bears the onus of establishing an

infringement of his or her equality rights in a purposive sense through reference to

one or more contextual factors, it is not necessarily the case that the claimant must

adduce evidence in order to show a violation of human dignity or

freedom. Frequently, where differential treatment is based on one or more

enumerated or analogous grounds, this will be sufficient to found an infringement

of s. 15(1) in the sense that it will be evident on the basis of judicial notice and logical

reasoning that the distinction is discriminatory within the meaning of the provision.

[71] Most recently, in Dickson v. Vuntut Gwitchin First Nation, 2021 YKCA 5,

the opening paragraphs set out the issues:

[3]

The facts of this case are not contentious and may be simply stated. The

petitioner/appellant, Ms. Dickson, sought to stand for election to the Council of the Vuntut

Gwitchin First Nation (“VGFN”), the body having day-to-day responsibility for the First

Nation’s “general welfare and good government”. Ms. Dickson, whose qualifications for

serving as a Councillor are undoubted, resides in Whitehorse rather than on the

“Settlement Land” of the VGFN. For reasons related to her son’s health needs, she feels

she cannot move to Old Crow, the main centre in the Settlement Land. However, the

constitution of the VGFN specified that any Councillor must reside on the Settlement

Land. Since Ms. Dickson was unwilling to commit to moving to Old Crow, the VGFN

Council, after extensive discussion, declined to remove the requirement from the

constitution and rejected her candidacy.

[4]

Ms. Dickson petitioned in the Supreme Court of Yukon for a declaration that the

requirement (the “Residency Requirement”) was inconsistent with s. 15(1) of the Charter,

could not be justified under s. 1 thereof, and was therefore of no force or effect.

[My bolding added]

Page 52

[72] Although its facts are distinguishable, Dickson is of use in the case at Bar

insofar as it references the legal principles relevant to claims of breach of section

15 of the Charter in the context of aboriginal rights:

Did the Residency Requirement Infringe Ms. Dickson’s Equality Rights Under s. 15?

[42] Chief Justice Veale turned next to Corbiere v. Canada (Minister of Indian and

Northern Affairs) 1999 CanLII 687 (SCC), [1999] 2 S.C.R. 203, the leading case on

terms like the Residency Requirement. Corbiere arose in the context of s.77 of the Indian

Act, which excluded off-reserve members of a band from voting in council elections.

The Batchewana Band had lost most of its land base through treaties. In later years, until

the early 1970s, the Band lived on a reserve that in fact belonged to another band. The

Batchewana had had a residency requirement but had not enforced it until about 1962

when only Band members living on one of three small reserves had been allowed to vote.

Less than 33% of registered band members lived on the reserve and approximately 85% of

the growth in Band membership consisted of people who had been reinstated to Indian

status as a result of amendments made in 1985 to the Indian Act. (See para. 134 of the

chambers judge’s reasons.) Interestingly, the Band itself took no part in the trial of the

case.

[43] A majority of the Supreme Court of Canada and the concurring minority

agreed that “Aboriginality residence” as it pertains to whether an Aboriginal band

member lives on or off the reserve is an “analogous ground” for purposes

of s. 15(1) of the Charter. Applying the three-part test enunciated in Law at para. 88,

the majority in Corbiere observed:

The enumerated and analogous grounds stand as constant markers of suspect

decision making or potential discrimination. What varies is whether they amount to

discrimination in the particular circumstances of the case. [At para. 8; emphasis

added.]

[44] With respect to the third stage of the Law test, the majority stated:

… The impugned distinction perpetuates the historic disadvantage experienced by

off-reserve band members by denying them the right to vote and participate in their

band's governance. Off-reserve band members have important interests in band

governance which the distinction denies. They are co-owners of the band's assets.

The reserve, whether they live on or off it, is their and their children's land. The band

council represents them as band members to the community at large, in negotiations

with the government, and within Aboriginal organizations. Although there are some

matters of purely local interest, which do not as directly affect the interests of off-

reserve band members, the complete denial to off-reserve members of the right to

vote and participate in band governance treats them as less worthy and entitled

…simply because they live off-reserve.

.

Page 53

Taking all this into account, it is clear that the s. 77(1) disenfranchisement is

discriminatory. It denies off-reserve band members the right to participate fully in

band governance on the arbitrary basis of a personal characteristic. It reaches the

cultural identity of off-reserve Aboriginals in a stereotypical way. It presumes that

Aboriginals living off-reserve are not interested in maintaining meaningful

participation in the band or in preserving their cultural identity, and are therefore less

deserving members of the band. The effect is clear, as is the message: off-reserve

band members are not as deserving as those band members who live on reserves.

This engages the dignity aspect of the s. 15 analysis and results in the denial of

substantive equality. [At paras. 17–18; emphasis added.]

[45] The majority in Corbiere added that discrimination exists regardless of the

reasons why off-reserve members reside where they do. In the Court’s words, they

would still “suffer a detriment by being denied full participation in the affairs to

which they would continue to belong while the band councils are able to affect their

interests ...”. In the end, the differential treatment resulting from s. 77 of the Indian

Act was seen as discriminatory because it implied that “off-reserve band members are

lesser members of their bands or persons who have chosen to be assimilated by the

mainstream society.” (At para. 19.)

[46] The chambers judge in the case at bar noted that the Supreme Court of

Canada had recently affirmed a two-step analytical framework (as opposed to the

three steps described in Law) to determine whether a law infringes the guarantee of

equality under s. 15 of the Charter. (At para. 144.) The first step is to ask whether on

its face or in its effect, the impugned law has a disproportionate impact on a protected

group. The second focusses on “arbitrary” — or “discriminatory” — disadvantage,

that is, whether the law has the effect of reinforcing, perpetuating or exacerbating

disadvantage. (See R. v. Kapp 2008 SCC 41 at para. 17; Quebec (Attorney General)

v. A 2013 SCC 5 at para. 324; Kahkewistahaw First Nation v. Taypotat 2015 SCC 30 at

paras. 19–21; Fraser v. Canada (Attorney General) 2020 SCC 28 at paras. 50–76).

[73] As to the relevant generic analytical framework, the decision in

Kahkewistahaw First Nation v. Taypotat , 2015 SCC 30 is also helpful:

Analysis

[16]

The approach to s. 15 was most recently set out in Quebec (Attorney

General) v. A, 2013 SCC 5 (CanLII), [2013] 1 S.C.R. 61, at paras. 319-47. It clarifies

that s. 15(1) of the Charter requires a “flexible and contextual inquiry into whether

a distinction has the effect of perpetuating arbitrary disadvantage on the

claimant because of his or her membership in an enumerated or analogous group”:

para. 331 (emphasis added).

Page 54

[17]

This Court has repeatedly confirmed that s. 15 protects

substantive equality: Quebec v. A, at para. 325; Withler v. Canada (Attorney

General), 2011 SCC 12 (CanLII), [2011] 1 S.C.R. 396, at para. 2; R. v. Kapp, 2008 SCC

41 (CanLII), [2008] 2 S.C.R. 483, at para. 16; Andrews v. Law Society of British

Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143. It is an approach which

recognizes that persistent systemic disadvantages have operated to limit the

opportunities available to members of certain groups in society and seeks to prevent

conduct that perpetuates those disadvantages. As McIntyre J. observed

in Andrews, such an approach rests on the idea that not every difference in treatment

will necessarily result in inequality and that identical treatment may frequently

produce serious inequality: p. 164.

[18]

The focus of s. 15 is therefore on laws that

draw discriminatory distinctions — that is, distinctions that have the effect of

perpetuating arbitrary disadvantage based on an individual’s membership in an

enumerated or analogous group: Andrews, at pp. 174-75; Quebec v. A, at para. 331.

The s. 15(1) analysis is accordingly concerned with the social and economic context in

which a claim of inequality arises, and with the effects of the challenged law or action

on the claimant group: Quebec v. A, at para. 331.

[19]

The first part of the s. 15 analysis therefore asks whether, on its

face or in its impact, a law creates a distinction on the basis of an enumerated or

analogous ground. Limiting claims to enumerated or analogous grounds, which “stand as

constant markers of suspect decision making or potential discrimination”, screens out those

claims “having nothing to do with substantive equality and helps keep the focus on

equality for groups that are disadvantaged in the larger social and economic

context”: Corbiere v. Canada (Minister of Indian and Northern Affairs), 1999 CanLII 687

(SCC), [1999] 2 S.C.R. 203, at para. 8; Lynn Smith and William Black, “The Equality

Rights” (2013), 62 S.C.L.R. (2d) 301, at p. 336. Claimants may frame their claim in terms

of one protected ground or several, depending on the conduct at issue and how it interacts

with the disadvantage imposed on members of the claimant’s group: Law v. Canada

(Minister of Employment and Immigration), 1999 CanLII 675 (SCC), [1999] 1 S.C.R. 497,

at para. 37.

[20]

The second part of the analysis focuses on arbitrary — or

discriminatory — disadvantage, that is, whether the impugned law fails to respond to

the actual capacities and needs of the members of the group and instead imposes

burdens or denies a benefit in a manner that has the effect of reinforcing,

perpetuating or exacerbating their disadvantage:

The root of s. 15 is our awareness that certain groups have been historically

discriminated against, and that the perpetuation of such discrimination should be

Page 55

curtailed. If the state conduct widens the gap between the historically disadvantaged

group and the rest of society rather than narrowing it, then it is discriminatory.

[Quebec v. A, at para. 332]

[21]

To establish a prima facie violation of s. 15(1), the claimant must

therefore demonstrate that the law at issue has a disproportionate effect on the

claimant based on his or her membership in an enumerated or analogous group. At

the second stage of the analysis, the specific evidence required will vary depending on

the context of the claim, but “evidence that goes to establishing a claimant’s historical

position of disadvantage” will be relevant: Withler, at para. 38; Quebec v. A, at para.

327.

[22]

The question in this case is which “enumerated or analogous

group” faces discrimination, and whether Mr. Taypotat has established that the

education requirement set out in the Kahkewistahaw Election Act has a

disproportionate effect on the members of any such group.

…

[28]

Finally, even if it had been properly raised and argued by the

parties, I have serious doubts about the merits of the argument that the education

requirements in the Kahkewistahaw Election Act have the effect of imposing arbitrary

disadvantage on community members based on their residence on the reserve.

The Kahkewistahaw Election Act specifically requires that the Chief and three of the four

Councillors must reside on the reserve during their term: ss. 9.04 and 9.05. Far from

having the effect of excluding community members who live on the reserve,

the Kahkewistahaw Election Act is specifically designed to foster their participation in

community governance. As a result, in the context of the Kahkewistahaw Election Act as a

whole, it is difficult to conclude that it has the effect of perpetuating arbitrary disadvantage

against these community members.

[29]

Accordingly, in my view the Court of Appeal erred in concluding

that the education provisions in the Kahkewistahaw Election Act represent a prima

facie violation of the s. 15 rights of community members who live on the reserve.

…

[33… On this issue, too, the record is silent and we are left only with Mr. Taypotat’s bare

assertion. This is not to say that statistical evidence is invariably required to establish

Page 56

that a facially neutral law infringes s. 15. In some cases, the disparate impact on an

enumerated or analogous group will be apparent and immediate. The evidence in this

case, however, does not point to any such link between the education requirement and a

disparate impact on the basis of an enumerated or analogous ground.

[34]

I think intuition may well lead us to the conclusion that the

provision has some disparate impact, but before we put the Kahkewistahaw First

Nation to the burden of justifying a breach of s. 15 in its Kahkewistahaw Election Act,

there must be enough evidence to show a prima facie breach. While the evidentiary

burden need not be onerous, the evidence must amount to more than a web of

instinct. The evidence before us, even in combination, does not rise to the level of

demonstrating any relationship between age, residence on a reserve, and education

among members of the Kahkewistahaw First Nation, let alone that arbitrary

disadvantage results from the impugned provisions.

[My bolding added]

[74] As Justice Bourgeois recently stated in Grabher v. Nova Scotia, 2021 NSCA

63:

[74]

Before considering Mr. Grabher’s allegations of error, it is helpful to set out the

principles relevant to claims under s. 15 of the Charter. There is no shortage of authorities

from the Supreme Court of Canada. Most recently, in Fraser v. Canada (Attorney

General), 2020 SCC 28, Justice Abella writing for the majority re-affirmed the two-step

test for establishing a prima facie breach of s. 15. She wrote:

[27] Section 15(1) reflects a profound commitment to promote equality and

prevent discrimination against disadvantaged groups (Quebec (Attorney General) v.

A, 2013 SCC 5 (CanLII), [2013] 1 S.C.R. 61, at para. 332; Kahkewistahaw First

Nation v. Taypotat, 2015 SCC 30 (CanLII), [2015] 2 S.C.R. 548, at paras. 19-20). To

prove a prima facie violation of s. 15(1), a claimant must demonstrate that the

impugned law or state action:

•

on its face or in its impact, creates a distinction based on enumerated or

analogous grounds; and

•

imposes burdens or denies a benefit in a manner that has the effect of

reinforcing, perpetuating, or exacerbating disadvantage.

(Quebec (Attorney General) v. Alliance du personnel professionnel et technique de la santé

et des services sociaux, 2018 SCC 17 (CanLII), [2018] 1 S.C.R. 464, at para. 25; Centrale

des syndicats du Québec v. Quebec (Attorney General), 2018 SCC 18 (CanLII), [2018] 1

S.C.R. 522, at para. 22.)

Page 57

[75] These cases outline the applicable legal principles. Have the Plaintiffs

sufficiently pleaded this cause of action?

[76] The Province states in its April 6, 2021 filed brief:

“Beyond simply stating the phrase ‘aboriginality- residence’ the pleadings do not establish

that by ceasing to recognize ATRA passports, the Province created a distinction based on

aboriginality – residence or status under the Indian Act… Regarding status under the

Indian Act, it is noteworthy that plaintiff Cooper, in paragraph 6 of the pleadings states…

[Cooper]… is Mi’Kmaw and is registered as an Indian under the Indian Act… Yet Mr.

Cooper makes the same complaint as the other proposed representative plaintiffs. This is

difficult to reconcile with the plaintiffs’ allegations of discrimination based on status under

the Indian Act.” (paras. 90-99).

[77] The Province also argues that “aboriginality-residence” is not an analogous

ground.

[78] In Corbiere, [1999] 2 SCR 203, the Court relied on that ground in

determining whether there was discrimination between on-reserve and off-reserve

Status Indians in relation to voting rights in Band elections. The Court did not

expressly limit future litigants’ reliance on the aboriginality-residence ground to

distinctions such as between on-reserve and off-reserve Status Indians.

[79] The Court stated that “the enumerated grounds function as legislative

markers of suspect grounds associated with stereotypical, discriminatory decision-

making. They are a legal expression of a general characteristic, not a contextual,

fact-based conclusion about whether discrimination exists in a particular case… It

follows that, decisions on these grounds are not always discriminatory… The same

applies to the grounds recognized by the courts as “analogous” to the grounds

enumerated in section 15.” (paras. 7-8)

[80] The Plaintiffs have pleaded that the Province’s decision to no longer

recognize the ATRA Passports, has on its face or in its impact, created a distinction

based on analogous grounds (aboriginality-residence and lack of status under the

Indian Act).

[81] Mr. Cooper is a Status Indian without an associated Indian Act

Band/residence - his ATRA Passport is no longer recognized by the Province for

that reason, in contrast to Status Indians with an associated Band-therefore he has

pleaded that the Province’s decision has discriminated against him on that basis. Its

decision denies him a benefit, the right to freely hunt and harvest, which tends to

Page 58

have the effect of reinforcing, perpetuating or exacerbating the disadvantages

similarly faced by off-reserve Indians, except that he does not even have the choice

of residing off-reserve, since he is not a member of an Indian Act Band.

[82] The other three Plaintiffs, have pleaded that they are section 35 rights

entitled (to freely hunt and harvest) Mi’Kmaw, yet are not Status Indians, and

therefore are not associated with an Indian Act Band/residence. Their ATRA

Passports are no longer recognized for those reasons, in contrast to Status Indians,

with an associated Indian Act Band/residence.

[83] Therefore, on the pleadings, the Province’s decision has discriminated

against them on those bases. Its decision denies them a benefit, the right to freely

hunt and harvest, on bases which tends to have the effect of reinforcing,

perpetuating or exacerbating the disadvantages similarly faced by off-reserve

Indians, except that the Plaintiffs do not even have the choice of residing off-

reserve, since they are not part of an Indian Act Band.

[84] This causes them to be stereotyped as “less aboriginal” (Lovelace v. Ontario,

2000 SCC 37)²⁴in relation to the differing treatment by the Province of

Band/Status Indians and Métis and non-registered First Nations peoples, and to be

prejudiced by being in a “jurisdictional wasteland” as non-status Indians (Daniels,

2016 SCC 12 at para. 14). Their plight has also 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.” (para.26 Daniels, 2013 FC 6- affirmed

2016 SCC 12).

[85] On the pleadings, all four members of the Class have sufficiently established

a breach of section 15 of the Charter cause of action.

²⁴I bear in mind that Justice Iacobucci stated for the court: “With respect to s. 15(1), in my view the exclusion of the

non-band aboriginal communities from the First Nations Fund does not violate s. 15 of the Charter. I reach this

conclusion despite a recognition that, regrettably, the appellant and respondent aboriginal communities have

overlapping and largely shared histories of discrimination, poverty, and systemic disadvantage that cry out for

improvement.” (para. 6)

Page 59

Consideration of the remaining statutory preconditions under the Class

Proceedings Act²⁵

1- Is there an “identifiable class” per s. 7(1)(b) CPA?²⁶

[86] As the Plaintiffs point out: “The class definition is crucial; it identifies the

persons entitled to notice, entitled to relief, and defines those persons who will be

bound by the judgement.”²⁷

[87] The proposed class definition arising from the Amended Notice of Motion

reads:

(b) defining the class (the "Class") as:

"All persons who currently hold or held valid Aboriginal and Treaty Rights

Access Passports ("ATRA Passports") as of July 13, 2017"

²⁵The evidentiary standard to be satisfied by the applicants for certification at this stage of a proceeding has been

stated as: The plaintiff “must show some basis in fact for each of the certification requirements set out in … the Act,

other than the requirement that the pleadings disclose a cause of action…. Winkler, The Law of Class Actions in

Canada, pp. 29-30 explains what ‘some basis in fact’ means: ‘The Supreme Court of Canada has definitively

rejected the argument that the standard of proof for meeting the certification requirements is a balance of

probabilities. The “some basis in fact” standard is consistent with the fact that at the certification stage, the court is

dealing with procedural issues, not substantive ones. The “some basis in fact” standard does not require the

certification judge to resolve conflicting facts and evidence. At the certification stage, the court is ill-equipped to

resolve conflicts in the evidence or to “engage in the finely calibrated assessments of evidentiary weight”. A

certification motion is not the time to resolve conflicts in the evidence or to resolve the conflicting opinions of

experts. The evidentiary threshold of some basis in fact is an elastic concept, but it is not a requirement that (a) the

action will probably or possibly succeed; (b) a prima facie case has been made out; or (c) there is a genuine issue

for trial. The evidentiary threshold for certification is not onerous, and courts must not impose undue technical

requirements on plaintiffs. Although the evidentiary threshold for meeting the statutory criteria is low, the court has

a modest gatekeeper function and must consider the evidence adduced by both the moving party and the respondent

in light of the statutory criteria. … The standard of “some basis in fact” does not “involve such a superficial level of

analysis into the sufficiency of the evidence that it would amount to nothing more than symbolic scrutiny.” per

Saunders JA at para. 30 in CDHA v. Murray, 2017 NSCA 28. [My italicization added]

²⁶Affidavits have been filed by the Province and the Plaintiffs which provide the basis upon which the Plaintiffs

argue that “some basis in fact” exists for their claiming that all the section 7(1)(b)-(e) CPA statutory criteria have

been met. As the Province put it in its brief filed April 6, 2021 (at paras 128-129): “There are several issues that the

court may wish to consider while assessing the evidence at this stage of the certification hearing: First, are the

proposed common issues supported by the evidence? Second, are these truly common issues or … they have only

the appearance of commonality …” and “This [common issue] is not supported by the evidence or rationally

connected to the causes of actions pleaded….or the relief requested.”

²⁷See para. 67 - February 26, 2021 filed Brief.

Page 60

(c) to the extent necessary/ defining the subclasses (collectively/ the //Subclasses//)

as:

(i) "All members of the Class who are not Status Indians and who have or

assert rights to hunt and harvest in Nova Scotia under the 1752 Treaty

and/or the Aboriginal right to hunt and harvest in traditional Mi'kmaq

hunting and fishing grounds (the "1752 Subclass");

(ii) "All members of the Class who are Status Indians listed on the Atlantic

General List/ and who have or assert Aboriginal and Treaty Rights to

hunt and harvest in Nova Scotia under the Treaties of 1752,1760/61, and

all other applicable treaties/ and/or the Aboriginal right to hunt and

harvest in traditional Mi'kmaq hunting and fishing grounds" (the

"General List Subclass");

(iii) "All members of the Class who are not Status Indians and who have or

assert Aboriginal and Treaty Rights to hunt and harvest in Nova Scotia

under the 1760/1761 Treaty and/or the Aboriginal right to hunt and

harvest in traditional Mi'kmaq hunting and fishing grounds" (the

"1760/1761 Subclass"); and

(iv) "All members of the Class who are not Status Indians and who have or

assert Aboriginal and Treaty Rights to hunt and harvest in Nova Scotia

under the 1760/1761 Treaty and/or the Aboriginal right to hunt and

harvest in traditional Mi'kmaq hunting and fishing grounds/ and who

are descended from Mi'kmaq communities on Cape Breton Island" (the

"Cape Breton Subclass").

[88] The jurisprudence has set out some of the principles relevant to determining

whether there is an “identifiable class”:

1.

it should be defined as narrowly as possible “without arbitrarily

excluding some people who share the same interest in the resolution

of the common issue(s)” - Hollick, [2001] 3 SCR 158 at paras. 17 and

21/ see also at paras. 29-35, Murray, 2017 NSCA 28;

2.

3.

the burden to establish an identifiable class is “not onerous”;

the class membership should be ascertainable by objective criteria

“which can be used to determine whether a person is a member

without reference to the merits of the action”;

4.

“there must be some rational relationship between the classes and the

common issues”;

Page 61

each member of the class must have a potential cause of action.

5.

[89] The Province argues that it is not possible to have a class definition that is

ascertainable by objective criteria, where preliminary findings of fact need to be

made for each individual member before membership can be determined, citing

Carvery v. Halifax, 2018 NSSC 204 at para. 57 per Duncan J, as he then was.

[90] While that may be true in some cases, it is not a determinative factor in

every case. Whether preliminary findings of fact need to be made for each

individual member before membership can be determined is a fact-specific

exercise. Consequently, much will depend on the individual circumstances of the

litigation in question.

[91] For example, Justice Duncan cited Monaco v. Coquitlam, 2015 BCSC 2421,

from paragraphs 143 to 152, in relation to that court’s review of the criteria of an

identifiable class, which latter paragraph read: ‘a class may also not be objectively

defined where a preliminary finding of fact needs to be made in each individual

case before membership in the class can be determined: R v. Nixon, (2003) 24 CLR

(3d) 95 at paras. 6-8”. However, that general statement is not determinative in

every case. One should not lose sight of the proposed class definition in Monaco:

[147] In this Certification Application the proposed Class was initially described as:

All British Columbia resident persons who owned or were resident in a property that

was subjected to an inspection, pursuant to the City of Coquitlam Controlled

Substance Property Bylaw No. 3833, 2007, that was not authorized by a warrant.

[148] This definition was revised such that at the hearing of the Certification Application

it consisted of:

all British Columbia resident persons who owned or were resident in a property were

living in a residence that was subjected to an inspection of its interior, pursuant to the

City of Coquitlam Controlled Substance Property Bylaw No. 3833, 2007, that was

not authorized by a warrant, and the owners of those residences.

[92] Similarly, in Carvery, Justice Duncan noted at paragraph 58:

The proposed Class members are described in paragraph 4 of the Statement of Claim, as

amended by this decision:

Page 62

4. The proposed Class members in this Action include all former residents and the

estates of deceased former residents of Africville who held property interests in the

communal lands of Africville and had those property interests taken by the City of

Halifax and who have not otherwise disposed of their property interests before

November 26, 1969, were removed from the physical community of Africville

between 1962 and 1970 and who have not signed releases to this Action or had their

claims otherwise dismissed or discontinued.

(emphasis on amendment)

[93] Justice Duncan reduced the class membership criteria to the following at

para 94:²⁸

“I am not satisfied that the proposed definition of a class member (either in its original

form or in the amended form advanced in submissions) would identify persons who have a

potential claim for relief against the defendant…[The class definition] does not adequately

identify those persons who would be bound by the result, nor does it adequately describe

who would be entitled to notice of certification…”.

[94] The number of class members in the case at Bar is between the 387 persons

who had ATRA Passports as of July 13, 2017, less those of the 131 Status Indians

included therein who also are Indian Act Band members (the number of whom are

not presently ascertained), as opposed to those on the “General List”.

[95] Therefore, the number of Class members could be between 256 and 387

individuals – the Class membership is limited in scope. In terms of numbers and

their nature, this class definition is not comparable to those above-noted where

objections were successfully raised. Keeping in mind the prevailing jurisprudence,

the factual contexts herein, and a purposive appreciation of the Class Proceedings

Act, I find sufficiently objective criteria in this case.

[96] At trial, the Class members will seek recognition that they, as aboriginals,

are entitled to exercise section 35 Constitution Act rights to hunt and harvest in

Nova Scotia. They claim this entitlement on two bases: aboriginal rights and treaty

rights.²⁹

²⁸Justice Duncan was troubled by the open-ended nature of the class definition. At para. 64 and following he stated:

“There are, in my opinion, significant problems with the proposed class description… What were the metes and

bounds of Africville prior to expropriation?… Who was a ‘resident’ of Africville?… What does it mean to say that

the proposed class member must have been ‘removed’ from Africville between 1962 and 1970?… What type of

‘property interest’ is sufficient to qualify as a class member?… What constitutes ‘communal lands’?”

²⁹I do not accept the Province’s objection that the class definition is deficient because it contains “merits-based” or

“claims-based” criteria. The Province relied upon the reasons in Kwicksutaineuk/ Ah-Kha-Mish First Nation v.

Page 63

[97] The Province has acknowledged in argument that “the Mi’Kmaw of Nova

Scotia” are entitled to exercise section 35 rights, citing the Supreme Court of

Canada’s decisions in Simon and Marshall in particular.³⁰

[98] Moreover, it is not seriously disputed that after consultations with the

NCNS, in 1989 the Province recognized, and thereafter for 28 years accepted, the

ATRA Passports issued by the NCNS to the Plaintiffs as providing them

entitlement to hunt and harvest in Nova Scotia, as if they were in law entitled to do

so by section 35 of the Constitution Act.

[99] At trial, the central issue will be whether the Plaintiffs can establish in law

that they are beneficiaries of the Treaties, or entitled by virtue of their aboriginal

rights, to hunt and harvest in Nova Scotia. To be so entitled they must establish

themselves as “aboriginal peoples of Canada”. Notably, that definition in section

British Columbia, 2012 BCCA 193 to support its argument that such merits-based and claims-based criteria

preclude a class definition that is based on objective criteria. Notably however, at paragraph 89, that court stated:

“For present purposes, it is unnecessary to resolve the issue of the limits of the merits-based criteria prohibition

because in this case it is my view that the merits-based criterion at issue is either impermissibly merits-based or not

sufficiently objective.” Therefore, the court allowed that some merits-based and claims-based criteria are not

prohibited, provided they are sufficiently objective.

³⁰The Province’s position is that “the Mi’kmaw of Nova Scotia” are exclusively represented by governance of the

13 Nova Scotian Indian Act Bands. Therefore, the Province accepts that each and every member of those Bands, and

only those persons, are capable of being entitled to exercise section 35 rights. I note the Province accepted that there

may be other individuals who are not Band members, yet who could be found in fact and law to be included within

the group referenced as “the Mi’kmaw peoples of Nova Scotia”. As I understood its position, the Province would

accept as included within the group referenced as “the Mi’kmaw of Nova Scotia”, those non-Band member-

individuals identified by the collective governance mechanisms of the 13 Nova Scotian Indian Act Bands (such as

the “This Is Who We Are” initiative) as having section 35 rights entitlement. There was no firsthand evidence

presented about this initiative, although references thereto are contained in the affidavit of Lindsay Silliker (solicitor

with the Legal Services Division, of the Nova Scotia Department of Justice), sworn February 18, 2021: “… “a copy

of the ‘Wula na kinu - This Is Who We Are’ program documents created by the Assembly of Nova Scotia Mi’kmaw

Chiefs to implement the ‘Nova Scotia Mi’kmaw Harvester Identification Card’ in September 2019, available online

at the program website: www.mikmawns.ca”. Therefore, this initiative was implemented according to Ms. Silliker,

who filed an affidavit on behalf of the Province, after litigation herein was started by the July 12, 2019 filing of the

Notice of Action. Roger Hunka, who has been continuously involved with the NCNS since 1982, including in

executive positions, swore an affidavit on behalf of the Plaintiffs in support of their certification motion. He testified

at the motion. He gave his evidence as a representative and member of the NCNS in a credible and reliable manner,

and I accept it. He also referenced his understanding that there is such an initiative, but he did not have first-hand

knowledge thereof. No one from the Assembly of First Nations or the Indian Act Bands of Nova Scotia testified at

the motion. No one with first-hand knowledge of this initiative testified. Moreover, under this initiative, the

“eligibility criteria” (cited in the documents from the Silliker affidavit), required before an individual claimant will

be successfully “enrolled” as a “Mi’kmaw of Nova Scotia”, include that a claimant must demonstrate on a balance

of probability standard that they have an ongoing Familial Connection (absent “special circumstances”: ancestry to a

Nova Scotia Mi’Kmaw Family on at least one side of their family line after 1871, as well as a present-day

connection to a Nova Scotia Mi’kmaw Family) and “Acceptance by the Nova Scotia Mi’kmaw Nation”.

Page 64

35(2) of the Constitution Act is written in expansive language: “… includes the

Indian, Inuit and Métis peoples of Canada.” This suggests that the “aboriginal

peoples of Canada” are not limited to persons who can demonstrate that they are

Indian, Inuit or Métis.

[100] I conclude that the “preliminary findings are necessary” objection to the

class definition does not withstand scrutiny when one purposefully examines the

objectives and criteria of the Class Proceedings Act in this specific

aboriginal/treaty rights context.³¹

[101] I am satisfied that there is a rational relationship between the proposed

Class/Sub-Classes and the common issues; the Class is appropriately narrowly

defined and can be ascertained by objective criteria. Moreover, each member of the

Class has a potential cause of action.³²

[102] I conclude that the Class definition is not objectionable, subject to minor

revisions required as I have set out herein.³³

2-Do the claims of the class members raise a common issue, whether or not the

common issue predominates over issues affecting only individual members?

³¹Although in a different context, matters of preliminary findings of fact are less concerning where systemic

governmental actions are in issue. For example, at para. 4 in Canada v Greenwood and Gray, 2021 FCA 186, the

court described the class as certified: “on behalf of a class consisting of, at a minimum, over two hundred thousand

potential members. The class includes, with certain exceptions, virtually everyone who has ever worked for or with

the Royal Canadian Mounted Police (the RCMP) or at RCMP premises, regardless of whether they were Members

or employees of the RCMP or employed in the public service and assigned to work with the RCMP.” In an appeal of

a certification of the class proceeding, and in relation to whether the pleadings revealed a sustainable cause of

action, the Federal Court of Appeal stated:” [163] As for the Crown’s suggestion that there cannot be a class-wide

duty of care owed to class members given the individual considerations that must be addressed in a workplace

negligence claim, such assertion is without foundation. Actions claiming systemic negligence have often been

certified: see, for example, Rumley; Cloud v. Canada (Attorney General), 2004 CanLII 45444 (ON CA), 73 O.R.

(3d) 401, [2004] O.J. No. 4924; and Francis v. Ontario, 2021 ONCA 197, to name only a few. The circumstances in

the foregoing cases are not so different as to render them inapplicable to the case at bar.”

32

In effect, at its core the same collective relief is sought by each of the individuals, (i.e. section 35 rights

entitlement) albeit their circumstances may vary. Use of the Sub-Classes proposed will allow those determinations

to proceed more efficiently by virtue of their aggregating Class members in smaller groups with similar specific

bases for their section 35 rights entitlement claims.

³³I will keep in mind the arguments made in relation to this statutory criterion since they may also be relevant to

other statutory criteria such as whether a class proceeding is the “preferable procedure”, and if proper and sufficient

“common issues” exist.

Page 65

Section 2 (e ) of the CPA defines “common issues” as:

means

(i) common but not necessarily identical issues of fact, or

(ii) common but not necessarily identical issues of law that arise from common but not

necessarily identical facts;

[103] The proposed common issues are set out in the amended Notice of Motion as

follows:³⁴

SCHEDULE “A”

COMMON ISSUES

The Plaintiffs seek certification of the following common issues:

1. Whether the Defendant breached its September 1990 with prejudice agreement to

recognize and affirm that the Mi'kmaq have an existing aboriginal right to harvest

outside of reserves wildlife for food and fur, subject only to the needs of conservation

and safety breached the terms of the Conservation Agreement entered into by the

Defendant on September 20,1990, when the Defendant decided to accept only federal

Indian status cards linked to Nova Scotia Indian Act bands for the purposes of

harvesting renewable resources under provincial jurisdiction;

2. Whether the Defendant had knowledge/ real or constructive/ of a claim by the Class

or the Subclasses to Treaty and/or Aboriginal rights to hunt and harvest in traditional

Mi'kmaq hunting grounds throughout Nova Scotia/ and in particular on Cape Breton

Island/ under s. 35 of the Constitution Act, 1982 and/or the Treaties of 1725,1752, and/or

1760/1761, such as to give rise to a duty on the part of the Defendant to consult

members of the Class through their chosen representative/ the Native Council of Nova

Scotia;

3. If the answer to common issue 2 is "yes", whether the Defendant/ in making and

implementing the decision to accept only federal Indian status cards linked to Nova

Scotia Indian Act bands for the purposes of harvesting renewable resources under

³⁴As the Plaintiffs put it in their February 26, 2021, brief at para. 80: “In the context of the common issues

criterion, the ‘some basis in fact’ standard involves a two-step requirement that: 1-the proposed common issue

actually exists; and 2-the proposed issue can be answered in common across the entire class’ citing Hollick at paras

23-6, [see also paragraph 28] 2001 SCC 68. The issues of fact in these proceedings are profound. They arise as a

result of the claims of treaty rights (1725, 1752, and 1760 – 61) and aboriginal rights. In order to consider these

claims, I find it necessary to understand the nature of the rights the Plaintiffs say were violated. Therefore, this court

must examine the jurisprudence relevant thereto. That jurisprudence is fragmented and in an unsettled state in some

respects. Therefore, I have been, and will be, referring extensively to this contextual aspect.

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provincial jurisdiction/ breached its duty to consult with the Class and/or the

Subclasses/ through their chosen representative/ the Native Council of Nova Scotia/

and failed to uphold the honour of the Crown;

4. Whether the members of the Class or the Subclasses have the right to hunt and harvest

in traditional Mi'kmaq hunting and fishing grounds throughout Nova Scotia/ and in

particular on Cape Breton Island/ under the Treaties of 1725, 1752, and/or 1760/1761/

or pursuant to their Aboriginal rights as recognized and affirmed by s. 35 of the

Constitution Act, 1982;

5. If the answer to common issues 3 or 4 is "yes", whether the Defendant/ in making and

implementing the decision to accept only federal Indian status cards linked to Nova

Scotia Indian Act bands for the purposes of harvesting renewable resources under

provincial jurisdiction/ infringed the rights of the Class or the Subclasses under s. 35

of the Constitution Act, 1982;

6. Whether the Defendant/ in making and implementing the decision to accept only

federal Indian status cards linked to Nova Scotia Indian Act bands for the purposes of

harvesting renewable resources under provincial jurisdiction/ infringed the rights of

the members of the Class to equal protection and equal benefit of the law without

discrimination/ under s. 15 of the Canadian Charter of Rights and Freedoms;

7. If the answer to common issue 5 or 6 is "yes", whether damages to the Class are a just

and appropriate remedy under section 24 of the Canadian Charter of Rights and Freedoms

or/ by analogy/ for a breach of rights under s. 35 of the Constitution Act, 1982;

8. If the answer to common issue 7 is "yes"/ can the Court make an aggregate assessment

of the damages suffered by the Class and/or the Subclasses?

9. If the answer to common issue 8 is yes/ in what amount;

and

10. If the answer to common issue 5 or 6 is "yes", whether the court should grant other

remedies/ including declaratory relief and an order that the Defendant revert to

recognizing ATRA Passport holders on the same basis as holders of federally-issued

status cards linked to Nova Scotia Indian Act bands for the purposes of harvesting

renewable resources under provincial jurisdiction/ as was the case up to August 2017.

Page 67

[104] Our Court of Appeal summarized the principles related to “common issue”

analysis in MacQueen v. Sydney Steel Corp., 2013 NSCA 143:³⁵

123 The legal principles relating to common issues were summarized in Fulawka v.

Bank of Nova Scotia, 2012 ONCA 443 (Ont. C.A.) at ¶81 as follows:

81 There are a number of legal principles concerning the common issues

requirement in s. 5(1)(c) that can be discerned from the case law. Strathy J.

provided a helpful summary of these principles in Singer v. Schering-Plough

Canada Inc., 2010 ONSC 42, 87 C.P.C. (6th) 276. Aside from the requirement just

described that there must be a basis in the evidence to establish the existence of the

common issues, the legal principles concerning the common issues requirement as

described by Strathy J. in Singer, at para. 140, are as follows:

The underlying foundation of a common issue is whether its resolution will

avoid duplication of fact-finding or legal analysis: Western Canadian

Shopping Centres Inc. v. Dutton, 2001 SCC 46, [2001] S.C.R. 534 at para.

39.

An issue can be a common issue even if it makes up a very limited aspect

of the liability question and even though many individual issues remain to

be decided after its resolution: Cloud, at para. 53.

There must be a rational relationship between the class identified by the

plaintiff and the proposed common issues: Cloud, at para. 48.

The proposed common issue must be a substantial ingredient of each class

member's claim and its resolution must be necessary to the resolution of

that claim: Hollick, at para. 18.

A common issue need not dispose of the litigation; it is sufficient if it is an

issue of fact or law common to all claims and its resolution will advance

the litigation for (or against) the class: Harrington v. Dow Corning Corp.,

[1996] B.C.J. No. 734, 48 C.P.C. (3d) 28 (S.C.), aff'd 2000 BCCA 605, [2000]

B.C.J. No. 2237, leave to appeal to S.C.C. ref'd [2001] S.C.C.A. No. 21.

With regard to the common issues, "success for one member must mean

success for all. All members of the class must benefit from the successful

prosecution of the action, although not necessarily to the same extent." That

is, the answer to a question raised by a common issue for the plaintiff must be

capable of extrapolation, in the same manner, to each member of the

35

I observe that, as the case management judge, I “may well determine that the common issue should be restated

with greater particularity in light of [my] experience with the class proceeding” per para. 72 of the reasons of the

court in Cloud v. Canada (Attorney General), (2004) 73 OR (3d) 401 (ON CA).

Page 68

class: Dutton, at para. 40, Ernewein v. General Motors of Canada Ltd.,

2005 BCCA 540, 46 B.C.L.R. (4th) 234, at para. 32; Merck Frosst Canada

Ltd. v. Wuttunee, 2009 SKCA 43, [2009] S.J. No. 179 (C.A.), at paras. 145-

46 and 160.

A common issue cannot be dependent upon individual findings of fact that

have to be made with respect to each individual claimant: Williams v.

Mutual Life Assurance Co. of Canada (2000), 51 O.R. (3d) 54, at para. 39,

aff'd (2001), 17 C.P.C. (5th) 103 (Div. Ct.), aff'd [2003] O.J. No.

1160 and [2003] O.J. No. 1161 (C.A.); Fehringer v. Sun Media Corp. (2002),

27 C.P.C. (5th) 155 (S.C.J.), aff'd (2003), 39 C.P.C. (5th) 151 (Div. Ct.).

Where questions relating to causation or damages are proposed as

common issues, the plaintiff must demonstrate (with supporting evidence)

that there is a workable methodology for determining such issues on a

class-wide basis: Chadha v. Bayer Inc., 2003 CanLII 35843 (C.A.), at para.

52, leave to appeal dismissed [2003] S.C.C.A. No. 106, and Pro-Sys

Consultants Ltd. v. Infineon Technologies AG, 2008 BCSC 575, at para.

139.

Common issues should not be framed in overly broad terms: "It would not

serve the ends of either fairness or efficiency to certify an action on the basis of

issues that are common only when stated in the most general terms. Inevitably

such an action would ultimately break down into individual proceedings.

That the suit had initially been certified as a class action could only make the

proceeding less fair and less efficient": Rumley v. British Columbia, 2001

SCC 69, [2001] 3 S.C.R. 184, at para. 29.

[105] I will follow the Plaintiffs’ suggestion to organize the common issues as

follows.³⁶

Common Issues 1, 2, 3 and 5 – Regarding the duty to consult vis-à-vis claims

arising from the 1990 Conservation Agreement and whether the Province had

actual/constructive knowledge of treaty and aboriginal rights claims by Class

³⁶There must be “some evidence” to support the proposed common issues, to allow for an assessment whether the

proposed “common issues” satisfy the statutory definition in section 2(e) of the CPA; thereafter the court must still

consider whether they are truly “common issues”; in the context of the pleadings and the evidence presented.

Page 69

members- and if so, did the Province breach that duty? And if so, did the

Province thereby infringe the section 35 rights of the Class members?³⁷

[106] I would for convenience summarize the Plaintiffs’ questions:

Do the pleadings raise common issues of fact or law?:

1.

Did the Province have actual or constructive notice of the Class members

claims to section 35 rights to harvest renewable resources that are

within the jurisdiction of the Province?

2.

3.

4.

Was there a communal group with which to negotiate?

Was there a good faith effort to negotiate a communal agreement with

the communal group [representing the SIMM]?³⁸

If not, did the Crown’s conduct effect an infringement of the Plaintiffs’

claimed section 35 rights?³⁹

[107] The most recent reference from the Supreme Court of Canada to the general

legal principles in relation to breaches by the Crown of its fiduciary duties vis-a -

³⁷The September 1990 Agreement, is found in the evidence at paras. 7, 16 (Exhibit “F”), 17, 24(c) and 31(f) of the

First Odette Soriano affidavit sworn February 7, 2020; and the written notice of termination thereof is found as

Exhibit “A” to Lindsay Silliker’s sworn November 16, 2020 affidavit.

³⁸The Plaintiffs argue that the Crown conduct in issue must be viewed through the lens of a “commitment to the

principle of reconciliation – see especially Enge v Mandeville, 2013 NWTSC 33 paras. 162-165: “the duty to consult

and accommodate is part of the process of fair dealing and reconciliation which flows from the Crown’s duty to deal

honourably with aboriginal peoples… To await the recognition by Canada of the NSMA as the proper organization

to represent the North Slave Métis runs the risk that the aboriginal rights, which the NSMA asserts, being eroded or

rendered meaningless by the decisions of the GNWT [the body responsible for wildlife management pursuant to the

Northwest Territories Act; this is an authority delegated it to it by Canada.]”

³⁹This analysis relies on there being “some basis in fact” in the evidence of a sufficiently established section 35

right(s) - see the seminal reasons in R v. Sparrow, [1990] 1 SCR 1075, where the court sets out the test for prima

facie interference with an existing aboriginal right and for the justification of such interference. The first question is

whether the legislation [governmental decision/conduct] has the effect of interfering with an existing aboriginal

right. If it does have such an effect, it represents a prima facie infringement of section 35 – the inquiry with respect

to interference begins with a reference to the characteristics or incidents of the right at stake. To determine this court

must ask: First, is the limitation unreasonable? Second, does the governmental decision impose undue hardship?

Third, does the governmental decision deny to the holders of the right, their preferred means of exercising that right?

The onus of proving the infringement lies on the individual or group challenging the governmental decision/conduct.

The test involves asking whether either the purpose or the effect of the governmental decision/conduct unnecessarily

infringes the interests protected by the right. If a prima facie interference is found, the analysis moves to the issue of

justification. The justification analysis proceeds as follows: First, is there a valid legislative/governmental objective?

Secondly, if found to be valid, one asks whether the governmental decision/conduct can be justified giving the

special trust relationship and responsibility of the government vis-à-vis aboriginals, which implicates the honour of

the Crown. Notably, that court also favourably commented at para. 79 on the decision in R v. Denny, (1990) 94 NSR

(2d) 253 (CA).

Page 70

vis the aboriginal peoples is found in Southwind v Canada, 2021 SCC 28, and the

tenor thereof should be borne in mind:

55 The Crown's fiduciary duty is rooted in the obligation of honourable dealing and

in the overarching goal of reconciliation between the Crown and the first inhabitants

of Canada (Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004]

3 S.C.R. 511, at paras. 17-18). Professor Slattery describes the honour of the Crown as a

"grounding postulate of Canadian constitutional law" (B. Slattery, "The Aboriginal

Constitution" (2014), 67 S.C.L.R. (2d) 319, at p. 320). McLachlin C.J. explained in Haida

Nation that the "process of reconciliation flows from the Crown's duty of honourable

dealing toward Aboriginal peoples, which arises in turn from the Crown's assertion of

sovereignty over an Aboriginal people and de facto control of land and resources that were

formerly in the control of that people" (para. 32; see also R. v. Desautel, 2021 SCC 17, at

para. 22). This is an ongoing project that seeks the "reconciliation of Aboriginal and

non-Aboriginal Canadians in a mutually respectful long-term relationship" (Beckman

v. Little Salmon/Carmacks First Nation, 2010 SCC 53, [2010] 3 S.C.R. 103, at para. 10).

56 This Court first acknowledged a fiduciary duty in Guerin. In Guerin, Canada argued

that it could not be subject to a fiduciary duty and, at best, the Crown's control over

Indigenous interests in land is a political trust which is unenforceable by the courts (p.

371). Dickson J., writing for a majority, rejected Canada's argument. Instead, he found

that Indigenous interests in land are "a pre-existing legal right not created by Royal

Proclamation, by s. 18(1) of the Indian Act, or by any other executive order or

legislative provision" (p. 379; see also J. T. S. McCabe, The Honour of the Crown and its

Fiduciary Duties to Aboriginal Peoples (2008), at pp. 150-51). In other words, the

Indigenous interest in land did not flow from the Crown; it pre-existed the Crown's

assertion of sovereignty.

[My bolding added]

[108] Firstly, one should not lose sight of the fact that the existence of aboriginal

rights (i.e. those extant at the time of European contact and the assertion of Crown

sovereignty) preceded the first Indian Act, enacted in 1876, nine years after the

Constitution Act in 1867 which assigned legislative jurisdiction to Parliament over

“Indians, and lands reserved for the Indians”.⁴⁰

[109] The SIMM descendants of those aboriginal groups who concluded treaties

with the colonial governments in Nova Scotia which preceded the 1876 passing of

the Indian Act, may arguably consider themselves to have not given up any of the

rights they acquired by treaty, which rights the Province herein seeks to restrict to

⁴⁰One needs to bear in mind as well that aboriginal rights were, in proper circumstances, subject to extinguishment

until 1982. Thereafter, the Constitution Act 1982 protected those then extant.

Page 71

those persons that fall within the definition of Status Indians under the federal

Indian Act, associated with Indian Act bands.

[110] Secondly, generally speaking, courts have recognized that Indian Act bands

are not necessarily the sole representatives of section 35 rights holders.

[111] For example, in R v. Desautel, 2021 SCC 17 the court stated in upholding

Judge Mrozinski’s trial decision:

47 I have concluded that the Aboriginal peoples of Canada under s. 35(1) are the modern-

day successors of Aboriginal societies that occupied what is now Canada at the time of

European contact (subject to modifications that may be necessary in the case of the Métis).

Where this is shown, the threshold question is met and the court ascertains the claimants'

rights using the Van der Peet test. The threshold question remains relevant in future cases

where the claimant group is outside Canada, as Van der Peet does not address the required

link between the modern-day collective (outside Canada) and the historic collective (that

was inside what is now Canada).

48 In the present case, the trial judge found as a fact that the Sinixt had occupied territory

in what is now British Columbia at the time of European contact. She also found that the

Lakes Tribe were a modern successor of the Sinixt -- leaving open the possibility that there

may be others. I would defer to this factual finding. The migration of the Lakes Tribe from

British Columbia to a different part of their traditional territory in Washington did not

cause the group to lose its identity or its status as a successor to the Sinixt.

49 This case does not require the Court to set out criteria for successorship of

Aboriginal communities. This is a complex issue that should be dealt with on a fuller

factual record, with the benefit of legal argument. For example, consideration would

have to be given to the possibility that a community may split over time, or, that two

communities may merge into one, as well as to the relative significance of factors such

as ancestry, language, culture, law, political institutions and territory in connecting a

modern community to its historical predecessor. Some of the difficulties here are

brought out in the academic literature (see P. L. A. H. Chartrand, "Background", in P. L. A.

H. Chartrand, ed., Who are Canada's Aboriginal Peoples? Recognition, Definition, and

Jurisdiction (2002), 27; R. K. Groves, "The Curious Instance of the Irregular Band: A Case

Study of Canada's Missing Recognition Policy" (2007), 70 Sask. L.R. 153; and B. Olthuis,

"The Constitution's Peoples: Approaching Community in the Context of Section 35 of

the Constitution Act, 1982" (2009), 54 McGill L.J. 1).

[My bolding added]

[112] In proper circumstances, courts have also found that, where two distinct

groups from the same communal group existed, it was a breach of the duty to

Page 72

consult, if only one of those groups was consulted - Enge v. Mandeville, 2013

NWTSC 33 and Enge v. Canada, 2017 FC 932.

[113] Ultimately, as in the case at Bar, each case must be determined on its own

unique circumstances. It is important to recall that the threshold evidentiary

standard the Plaintiffs presently have to meet is merely that there must be “some

evidence” in support of the statutory criteria in ss. 7(1)(b)-(e) of the CPA.

[114] Let me then turn to a review of the legal considerations.⁴¹

[115] The parties to the September 20, 1990, Agreement include as parties of the

First Part:

1.

2.

3.

4.

5.

6.

7.

8.

9.

Acadia Band

Annapolis Valley Band

Chapel Island Band

Eskasoni Band

Membertou Band

Wagmatcook Band

Whycogomagh Band

Shubenacadie Band

and the Grand Chief of the Mi’kmaq’s [Donald Marshall Sr.] and the

Native Council of Nova Scotia and the Union of Nova Scotia Indians

⁴¹As the authors of The Law of Class Actions in Canada (2014 Thomson Reuters Canada Ltd.), stated at p. 114: “In

order to establish commonality, evidence that the alleged acts actually happened is not required; rather, the factual

evidence required at the certification stage goes only to establishing whether these questions are common to all class

members.” With those limitations in mind, I will consider contextual evidence. I have extensively referred to the

existing jurisprudence which has considered the various treaties and substantive legal principles at issue in this case.

In my view, this is necessary contextual information for me to appreciate the significance of the affidavit evidence

(and pleadings) presented herein, as it gives me a sense of the legal landscape that the Plaintiffs would face at trial.

In its submissions on the certification motion, the Province spoke of its acknowledgement of the existing section 35

rights of the “Mi’Kmaw of Nova Scotia”. Because the Province considers the latter group to include only Status

Indians associated with existing recognized Indian Act bands, at trial the SIMM Plaintiffs will have to present

evidence anew to permit a finding that they too are entitled to exercise section 35 treaty and aboriginal rights. It

may be that the doctrine of judicial notice may assist their cause as well. I remain mindful of the court’s statements

in R v. Sappier and Gray, 2006 SCC 54 at para. 71: “ … It is generally wise not to incorporate [extraneous] evidence

submitted in other cases without disclosing it to the parties and allowing them the possibility of challenging it or

presenting contrary evidence.”

Page 73

- and as the party of the Second Part, Her Majesty the Queen in Right

of the Province of Nova Scotia.⁴²

[116] The Agreement references in the recitals, inter alia that:

“the Appeal Division of the Supreme Court of Nova Scotia in Denny, Paul and Sylliboy v

the Queen recognized that the Mi’Kmaw have an existing Aboriginal right to fish for food

outside of the boundaries of Indian Act reserves, subject to the needs of conservation;

and whereas withstanding anything in, and irrespective of, this Agreement, the

Province of Nova Scotia recognizes and affirms that the Mi’kmaw have an existing

Aboriginal right to harvest outside of reserves wildlife for food and for, subject only

to the needs of conservation and public safety…

And whereas the Native organizations are interested in achieving an adequate

standard of community nutrition and economic well-being without jeopardizing the

integrity of the natural environment;

Now therefore, by this Agreement, the parties establish the principles and procedures

upon which they will conduct themselves.”⁴³

[My bolding added]

[117] Article 1.04 of the September 20, 1990 Agreement, states that:

‘Mi’kmaq hunter’ means a person described in article 2.01”.

⁴²See also Exhibit “D” of the Soriano affidavit which contains an interim Agreement dated October 13, 1989.

Notably regulations were also enacted - see Exhibit “E” of her affidavit.

⁴³Notably, the referenced Denny at al. decision is found at (1990) 94 NSR (2d) 253; [1990] NSJ No. 56. The

judgement is dated March 5, 1990. An application for leave to appeal was filed on May 1, 1990, and a notice

of discontinuance was filed on September 6, 1990 – [1990] SCCA No. 194. At paragraphs 27- 34, the court stated:

“In R v. Isaac, (1975) 13 NSR (2d) 460, this Court recognized the existence of Indian aboriginal rights to hunt and

fish. The decision… is also relevant for his particularly thorough historical analysis of the basis upon which the

Mi’kmaq Aboriginal rights exist. The court found that the ‘original Indian rights’ of Nova Scotia Indians to hunt and

fish had not been diminished by treaty, other agreement or competent legislation … The result in Isaac was stated

succinctly in R v. Cope, (1981) 132 DLR (3d) 36 (NSSCAD) at p. 37: ‘… Indians had a personal and usufructuary

right to hunt, a right historically associated with their lands, and that that Aboriginal right had been affirmed by

various treaties… The lands in Nova Scotia where that Aboriginal right might still be enjoyed were essentially

limited to Indian reserve land. We thus concluded that the Aboriginal right to hunt, which impliedly included

a right to fish, had been preserved for the Indians on reserve land and could not be affected by provincial

laws, having regard to the exclusive federal power in respect of Indians in lands reserved for Indians.’.

Relying upon Isaac and the fact situation upon which it was based, it is appropriate in the circumstances that

give rise to these appeals to find that the Aboriginal rights of Nova Scotia Mi’kmaq Indians extend beyond

the strict perimeter of reserve lands to the waters incidental and adjacent to the reserves. To limit an

Aboriginal fishing right purely to reserve lands is inconsistent with the fact that, in Nova Scotia, no treaty has been

found to exist clearly showing that the Indians have released that right.” Underlining arises in the original decision.

Page 74

[118] Under the title Persons Covered, Article 2.01 read:

The hunting rights described in this Agreement may be exercised by a Mic Mac

resident of Nova Scotia who qualifies in accordance with articles 2.02 and 2.03 and

a) is a member of the Band, [as defined in article 1.04: “means a Band as defined in the

Indian Act (Canada) that is a party to this Agreement”]

b) is a full member of the Native Council of Nova Scotia as at the date of this

Agreement (unless a majority of the Joint Management Board [referenced in

Article 9, and which consisted of two representatives of the Union of Nova Scotia

Indians, two of the Native Council of Nova Scotia and two of the Province, who ‘shall

meet from time to time at the call of any member to administer the intent and purpose

of this Agreement’ ] concludes that member does not have an ancestral connection

to the Mic Mac nation)

[119] Article 1.01 read:

Without Prejudice

Except with respect to the recognition and affirmation by the Province of the existing

aboriginal right of the Mic Mac to harvest wildlife, this Agreement does not prejudice

the rights or define the position of the parties with respect to the Treaty of 1752 or any

other matter to which this Agreement pertains.

[120] Articles 1.02 and 1.03 read:

The term of this Agreement shall extend for six months from the date of Execution and

will be automatically renewed unless a 30-day notice is received prior to the termination of

the Agreement.

The Agreement may be renewed for such further periods of time and upon such terms as

the parties deem appropriate.

[121] In the L. Silliker affidavit, sworn November 16, 2020, she attaches as

Exhibit “A” “an executed Notice of Termination of the Conservation Agreement

dated September 20, 1990 to be effective on midnight March 19, 1991” which was

recorded by the Department of Lands and Forests on February 18, 1991.That

Notice reads in part:

“..the said Conservation Agreement…is terminated and is, except in respect of the

recognition and affirmation by the Province that the Mic Mac have an existing

aboriginal right to harvest outside of reserves wildlife for food and fur, of no further

force and effect as of the expiration of the said six months.”

Page 75

[My bolding added]

[122] The Province’s recognition in 1990 of “the existing aboriginal right of the

[Mi’Kmaw] to harvest wildlife” tracked the recent jurisprudence.⁴⁴

[123] Whether the 1990 Agreement arguably preserved the Province’s recognition

of non-Band Mi’Kmaw (including Full Members of NCNS) as being entitled to

exercise section 35 rights, in spite of the termination thereof by the aboriginal

parties thereto, is an open question. However, there is some evidence of this.⁴⁵

[124] The June 19, 2007, Nova Scotia Interim Consultation Policy [regarding

consultation with the Mi’Kmaw] is found as Exhibit “A” to Sanja Bistricki’s

affidavit.

[125] Under “Principles to Guide Consultations”, one finds:

“Identify groups to be consulted.

Key groups include:

[Indian Act] Bands

Other Mi’Kmaw organizations

•

In addition to the above, departments may share information with and receive input

from other Mi’Kmaw organizations, including, the Confederacy of Mainland Mi’Kmaw,

the Union of Nova Scotia Indians, and the Unama’ki Institute of Natural Resources.

44

Which had been recognized in cases, such as in R v. Simon (1985 SCC) - although as a Status Indian Mr. Simon

was found to be protected by section 88 of the Indian Act having established he had a “sufficient connection with the

Indian band, signatories to the Treaty of 1752” and as such his hunting right could not be restricted by Provincial

legislation (para. 57). Notably Mr. Simon was charged with two counts contrary to section 150(1) of the Lands and

Forests Act, which allegations were that he had “illegal possession of shotgun cartridge loaded with shot larger than

AAA” and “illegal possession of a rifle during closed season” while on a road not in, but adjacent to the

Shubenacadie Indian reserve (para. 3 Decision).

⁴⁵A determination of this issue will be informed by the jurisprudence to that date regarding aboriginal rights, and in

particular closely preceding the 1989 – 1990 Agreements - see inter alia: R v. Cope, (1982) 132 DLR (3^rd) p. 36

(NSSCAD) – the Treaty of 1752 did not exempt Mr. Cope from the federal fisheries regulations, when he was off

Reserve lands; R v. Isaac, (1975) 13 NSR (2^nd) 460 (NSSCAD) -Provincial hunting/fishing laws not applying on

Reserves: R v. Denny et al. (1990) 94 NSR (2d) 253; [1990] NSJ No. 56. The judgement is dated March 5, 1990.

An application for leave to appeal was filed on May 1, 1990, and a notice of discontinuance was filed on September

6, 1990 – [1990] SCCA No. 194 - where the court concluded: “relying upon Isaac… find that the Aboriginal rights

of Nova Scotia Mi’kmaq Indians extend beyond the strict perimeter of reserve lands, to the waters incidental and

adjacent to the reserves” (para. 33). The Agreement herein was dated September 20, 1990.

Page 76

These organizations provide services to various groups of bands and have technical

expertise and a good understanding of community issues.

•

These organizations may provide a Mi’Kmaw perspective on issues. However, unless

specifically authorized by Band councils or the Assembly, the views of these

organizations may not represent the official positions of band councils or the

Assembly.

•

The Native Council of Nova Scotia (NCNS) is an organization that includes non-

status and off-reserve status Mi’Kmaw and has an interest in a variety of natural

resource matters.”

[My bolding added]

[126] In Odette Soriano’s first affidavit, there is an 18-page fax transmission dated

April 26, 2005 from the Department of Natural Resources (Nova Scotia) to the

NCNS wherein, the Province provided its “Mi’kmaq Aboriginal Peoples

Harvesting Policy”. Therein, the ATRA Passport process is referenced, including

that:

“This policy applies to Mi’kmaq persons with identification as noted in Exhibit 1 (Status

Mi’kmaq Fish and Wildlife Harvesters) and Exhibit 2 (Native Counsel of Nova Scotia –

Netulkulimkewe’l Commission) as having Mi’kmaq Treaty and Aboriginal Rights while

hunting and fishing in Nova Scotia”.

[127] Under the title “General” and bullet points D. 5 and D. 6, we find the

following acknowledgments:

“The department acknowledges the Constitutional, Treaty and Aboriginal Rights of the

Mi’kmaq people to hunt and fish for food, social and ceremonial purposes.”

“There are thirteen Mi’kmaq Bands in Nova Scotia (see App. I-15-1).”

“There are twelve Off-Reserve Mi’kmaq Aboriginal peoples geographic zones in Nova

Scotia under the Native Council of Nova Scotia (see App. I-15-3)”

[128] It is not disputed that for 29 years, between 1989 and 2018, the Province

formally recognized and accepted NCNS-issued ATRA Passports. The Province

continued such recognition, even after termination of the September 1990

Agreement as of March 19, 1991.

Page 77

[129] Exhibit 2 entered during the testimony of Roger Hunka (he agreed that

Exhibit 2 appeared to be consistent with the ATRA Passports issued over the

relevant times by the NCNS with which he was associated continuously since

approximately 1982) is a sample of an ATRA Passport card; it also contains the

ATRA Passport application form.

[130] The application form requires proof of Mi’Kmaw ancestry including: the

names and details of the father and mother of the applicant, and the name of the

father's father, and maiden name of the father's mother; as well as the name of the

mother's father and maiden name of the mother's mother.

[131] Importantly, it also includes a requirement that applicants solemnly declare

as true all their statements made in the application, including the existence of the

three Powley factors – i.e. 1 - proof of Mi’Kmaw ancestry; 2 - self identifying as a

Mi’Kmaw; 3 - “that the Mi’Kmaw community has accepted me as an Mi’Kmaw”

and evidence to that effect will be the oral evidence of the guarantors who both are

also Mi’Kmaw, and are required to sign the application.

[132] The pleadings are consistent with there being some evidence that the

Province had actual or constructive notice of/ knowledge of treaty and aboriginal

rights claims by Class members, and that they had identified the Native Council of

Nova Scotia as a key group which could be consulted on their behalf,⁴⁶and that the

following summarized pleadings relate to true common issues:

⁴⁶I appreciate that, paraphrasing the Province’s legal arguments herein, it says a series of federal court cases rejected

the NCNS claim to have the capacity and authority to represent Status and off-Reserve (and Non-Status) Mi’Kmaw,

hence there was no duty on the Crown to consult with the NCNS: Martin v. Canada, 2002 FCT 1117; Native

Council of Nova Scotia v. Canada, 2007 FC 45 affirmed 2008 FCA 113 (judicial review). The latter application for

judicial review was dismissed because “the deficiencies in the record, most notably the paucity of evidence

supporting the applicant’s asserted aboriginal right to fish are such that constitutional analysis is not appropriate.

Consequently, this matter cannot be determined on the basis of the constitutional argument advanced by the

applicant” (at para. 3). Of significance are the following statements by the Federal Court judge: “[the Atty. Gen. of

Canada] raises the issue of standing and contends that the NCNS , an incorporated political organization, does not

possess Aboriginal rights. In view of my conclusion regarding the unsuitability of section 35 in relation to this

matter, it is not necessary for me to determine whether NCNS has the requisite standing to mount a section 35

challenge. For present purposes I assume, without deciding, that it does… The first difficulty with engaging in a

section 35 analysis is that the alleged ‘Aboriginal right’ does not directly correspond with the alleged ‘right of

consultation’ put forth by the NCNS…NCNS argues that adequate consultation requires that the government consult

with the Aboriginal community using the mechanisms chosen by the community. Because the off-reserve Aboriginal

population of Nova Scotia chose the NCNS to represent them in their dealings with the DFO, the NCNS (as an

organization) holds the procedural right of consultation while its individual members hold the substantive right to

fish. However, even accepting that a duty to consult may be owed to an Aboriginal organization, the Nova Scotia

Mi’Kmaw right to fish for food, social and ceremonial purposes does not belong (and is not alleged to belong) to the

entire membership of NCNS. The organization’s membership is comprised of Mi’Kmaw and other Aboriginal people

Page 78

1.

2.

The NCNS continued at all relevant times to be the preferred

representative of the Class, and as such constituted a communal group

with which the Province could have consulted and negotiated

regarding the Class claims, including the continued issuance of ATRA

Passports;

By its conduct leading up to and including its 2017 decision to no

longer recognize the ATRA Passports, the Province did not make a

good faith effort to consult with and negotiate a communal agreement

with the NCNS, given its real or constructive knowledge of the

section 35 rights claims of the Class and Sub-Classes. Thus,there was

a breach of the duty to consult and uphold the honour of the Crown.

[133] I conclude that these issues fall within the definition of “common issues” in

the CPA as interpreted in the jurisprudence, in relation to the proposed Plaintiffs

and the Class.⁴⁷

who reside off reserve in Nova Scotia… Non-Mi’Kmaw Aboriginal people have ATRA passports which allow them

to fish for lobster in the off-season. Thus, NCNS is alleging a duty to consult and accommodate for individuals who,

on the basis of the record, no not possess the Mi’Kmaw right to fish.” On the other hand, it appears that the Federal

government of Canada still recognizes NCNS issued ATRA Passports in relation to waters under its jurisdiction.

Insofar as the Province argues that NCNS cannot constitute a communal group that holds section 35 rights and

represents the SIMM Mi’Kmaw of Nova Scotia, who are entitled to exercise section 35 rights, inter alia, it should

be borne in mind that a proposed consultative body like the NCNS may include in its members some for whom it

may be consulted (full members) and some for whom it may not (the remainder). It may be instructive to examine

the decision of the Supreme Court of Canada in Ethiopian Orthodox Tewahedo Church of Canada St. Mary

Cathedral v. Aga, 2021 SCC 22 regarding when courts may have jurisdiction to intervene in the affairs of voluntary

associations - which question the court answered with: “courts have jurisdiction to intervene in decisions of

voluntary associations only where a legal right is affected… The legal rights which can ground jurisdiction include

private rights – rights in property, contract, tort or unjust enrichment – and statutory causes of action…” at paras 27-

29 per Rowe J.

⁴⁷As the court stated in Cloud v. Canada, [2004] O.J. No. 4924 (CA) at paragraph 49, regarding the common issues

requirement: “Moreover, like the other criteria in section 5(1) save for the disclosure of a cause of action, the

common issues criterion obliges the class representative to establish an evidentiary basis for concluding that the

criterion is met. McLachlin CJC put it this way in Hollick supra at paragraph 25: ‘in my view, the class

representative must show some basis in fact for each of the certification requirements set out in section 5 of

the Act, other than the requirement that the pleadings disclose a cause of action’”. [My bolding added]

Page 79

Common Issues 1, 4, 5 and 10 - Regarding the aboriginal and treaty rights of

the Class:⁴⁸

1-Did the Province breach its September 1990 with – prejudice Agreement

with the Mi’Kmaw when it later decided to accept only federal Indian Act

status cards linked to Nova Scotia Indian Act bands for purposes of harvesting

renewable resources under provincial jurisdiction?

⁴⁸As I noted in an earlier footnote, although the Province has acknowledged that “the Mi’kmaw of Nova Scotia”

have a section 35 right to hunt and harvest renewable resources within provincial jurisdiction, there is no such

acknowledgement in relation to the Plaintiffs’ claims. Such acknowledgements in relation to treaties, were

referenced in R v. Sappier and Gray 2006 SCC 54 at paras. 62-65 : “As part of the agreed statement of facts put

before the Court in the trial of Messrs. Sappier and Polchies, the Crown admitted that the Treaty of 1725 and the

ratification thereof in 1726 are valid Treaties and that the defendants are beneficiaries of those Treaties. The

Crown's concession about the validity of the Treaty is one of law. This Court has recognized that it is not

bound by concessions of law: see M v. H, [1999] 2 S.C.R. 3 (S.C.C.), at para. 45. Nonetheless, the fact that this

concession occurred in the context of a criminal prosecution raises fundamental fairness concerns….

The onus of

proving that a treaty right has been extinguished rests with the Crown, and not with the claimant: Badger, at para.

41; Sioui v. Quebec (Attorney General), [1990] 1 S.C.R. 1025 (S.C.C.), at p. 1061; R. v. Simon, [1985] 2 S.C.R.

387 (S.C.C.), at p. 406; Calder v. British Columbia (Attorney General), [1973] S.C.R. 313 (S.C.C.), at p. 404. The

Crown's concession in this regard is akin to it leading no evidence with respect to extinguishment, insofar as it

bears the burden of proof in this respect. The concession was made at the beginning of trial, although the

Crown's own witness, Dr. Stephen Patterson, presented contradictory evidence with respect to the validity of

the 1725 Treaty. The defendants, Messrs. Sappier and Polchies, have rightly relied on this concession since trial. It

is fundamental to their defence that they were not in unlawful possession of Crown timber because they were

exercising a valid treaty right to harvest timber for personal use…Although I would not discourage concessions

regarding the applicable law in a criminal prosecution, the Crown's concession in the present case has

important implications outside the Province of New Brunswick. The Treaty of 1725 was negotiated in Boston by

the Penobscots and ratified by Mi'kmaq representatives at Annapolis Royal, Nova Scotia, in 1726 (see W. C.

Wicken, Mi'kmaq Treaties on Trial (2002), at pp. 28, 86 and 89; S. E. Patterson, "Anatomy of a Treaty: Nova

Scotia's First Native Treaty in Historical Context" (1999), 48 U.N.B.L.J. 41, at pp. 51 and 55). As New Brunswick

was not recognized as a separate colony until the partition of Nova Scotia in 1784, it was Nova Scotia which

negotiated on behalf of the British Crown with the aboriginal peoples of the region: Patterson, at pp. 45-46.

The precise boundaries of British Nova Scotia following the 1713 Treaty of Utrecht, and the intended

geographic scope of the 1725 Treaty, are complex issues which have yet to be historically or judicially

resolved (see Wicken, at p. 101; Patterson, at pp. 42-46). These issues, along with the validity of the 1725 Treaty,

were recently the subject of judicial consideration in the Province of Newfoundland and Labrador. In Newfoundland

(Minister of Government Services & Lands) v. Drew, 228 Nfld. & P.E.I.R. 1, 2003 NLSCTD 105 (N.L. T.D.), the

trial judge concluded that the 1725-1726 Treaties have no legal force insofar as they were terminated by subsequent

hostilities between the Mi'kmaq and the British. Alternatively, he held that the 1725 Treaty by its express terms did

not apply to Newfoundland, and that, in any event, the scope of the Treaty should be interpreted as restricted to

territory within the jurisdiction of the Governor of Nova Scotia. An appeal from that judgment was dismissed by the

Newfoundland and Labrador Court of Appeal, 2006 NLCA 53 (N.L. C.A.). I raise this case only to illustrate the

contentious nature of the Crown's concession in the Sappier trial and its potential implications outside the

Province of New Brunswick. I do not wish to be taken as pronouncing on the validity or geographical scope of

the 1725 Treaty.” [My bolding added]

Page 80

2-Do the members of the Class or the Subclasses have the right to hunt and

harvest in traditional Mi’Kmaw hunting and fishing grounds throughout

Nova Scotia (including on Cape Breton Island) under any of the treaties of

1725, 1752, and 1760 – 1761, or pursuant to their aboriginal rights as

recognized and affirmed by section 35 of the Constitution Act, 1982?⁴⁹

3-If the answer to the above-noted question is “yes”, did the Province infringe

the rights of the Class or the Subclasses under section 35 of the Constitution

Act 1982, in making and implementing the decision to accept only federal

Indian status cards linked to Nova Scotia Indian Act bands for the purpose of

harvesting renewable resources under provincial jurisdiction?

4-If the answer to the above-noted question is “yes”, should the court grant

other remedies including declaratory relief and an order that the Province

revert to recognizing ATRA Passport holders on the same basis as holders of

federally issued status cards linked to the Nova Scotia Indian Act bands for

the purpose of harvesting renewable resources under provincial jurisdiction

as was the case up to August 2017?

[134] The September 1990 Agreement noted in the recitals that “whereas

withstanding anything in, and irrespective of, this Agreement, the Province of

Nova Scotia recognizes and affirms that the Mi’Kmaw have an existing aboriginal

right to harvest outside of reserves wildlife for food and fur, subject only to the

needs of conservation or public safety…”.

[135] Article 1.01 read:

⁴⁹Historical evidence can become refined over time if new reliable information arises that is not consistent with

prevailing persuasive understanding of the relevant history, thus also giving way to new jurisprudence: The treaties

of 1725, 1752, and 1760 – 1761 are Exhibits to the affidavit of Odette Soriano sworn February 7, 2020. I attach the

transcription of each of those to this decision as Appendices “C”, “D”, and “E”. Regarding hunting and fishing

pursuant to their aboriginal rights, the court in R v Sappier and Gray, 2006 SCC 54, which involved two Maliseet

tribe Status Indians associated with an Indian Act band (para. 6), and present day New Brunswick territory(which

remained part of “Nova Scotia” until 1784) stated at paragraph 50: “4.4 The Site-Specific Requirement This Court

has imposed a site-specific requirement on the aboriginal hunting and fishing rights it recognized

in Adams, Côté, Mitchell, and Powley. Lamer C.J. explained in Adams at para. 30 that: ‘if an aboriginal people

demonstrates that hunting on a specific tract of land was an integral part of their distinctive culture then,

even if the right exists apart from title to that tract of land, the aboriginal right to hunt is nonetheless defined

as, and limited to, the right to hunt on the specific tract of land. A site-specific hunting or fishing right does not,

simply because it is independent of aboriginal title to the land on which it took place, become an abstract fishing or

hunting right exercisable anywhere; it continues to be a right to hunt or fish on the tract of land in question.’” [My

bolding added]

Page 81

“Without Prejudice

Except with respect to the recognition and affirmation by the Province of the existing

aboriginal right of the Mi’Kmaw to harvest wildlife, this Agreement does not prejudice the

rights or define the position of the parties with respect to the Treaty of 1752 or any other

matter to which this Agreement pertains.” [My italicization added]

[136] As noted earlier, the Agreement was terminated by the aboriginal parties,

effective midnight March 19, 1991.

[137] Nevertheless, there is some evidence, including the wording in the

Agreement, and the Province’s continued acceptance of ATRA Passports until

2017, that the parties intended that affirmation by the Province to continue after

any termination of the Agreement. This is also supported by the recitals’ reference

to the Denny case, which read: “[the Appeal Division of the Supreme Court of

Nova Scotia] recognized that the Mi’Kmaw have an existing aboriginal right to

fish for food outside of the boundaries of Indian Act reserves, subject to the needs

of conservation.”⁵⁰

[138] There is some evidence, consistent with the pleadings, that the Province

breached its ongoing acknowledged recognition “of the existing aboriginal right of

the Mi’Kmaw to harvest wildlife”, which recognition in relation to the Plaintiffs

had continued even after the March 19, 1991 termination of the September 1990

agreement until August 2017, and that these issues fall within the definition of

“common issues” in the CPA as interpreted in the jurisprudence, in relation to the

proposed Plaintiffs and the Class.⁵¹

⁵⁰In the Denny case, it is important to recall that each of the accuseds were Status Indians, and that the NSCA

found an aboriginal right to fish, and therefore did not decide the Treaty right issue (paras. 44 and 51).

Moreover, the entitlement found was to harvest resources within federal jurisdiction, more specifically (para. 57) for

Denny: “in the waters of the Indian Brook adjacent to the Eskasoni Reserve [in the Bras D’Or Lake of Cape Breton];

and for Sylliboy, “standing on the banks of the Afton River in Antigonish County” …which river “flows through the

[Afton Band’s Reserve]”.

⁵¹I keep in mind that the test for prima facie interference with an existing aboriginal right and for the

justification of such interference was specifically addressed in R v Sparrow, [1990] 1 SCR 1075 at paras. 67-72.

Therein the court stated: “the first question to be asked is whether the legislation in question has the effect of

interfering with an existing aboriginal right. If it does have such an effect, it represents a prima facie

infringement of section 35(1).… The inquiry with respect to interference begins with a reference to the

characteristics or incidents of the right at stake.… Fishing rights are not traditional property rights. They are rights

held by a collective and are in keeping with the culture and existence of that group… To determine whether the

fishing rights have been interfered with such as to constitute a prima facie infringement of section 35(1), certain

questions must be asked. First, is the limitation unreasonable? Second, does the regulation impose undue

hardship? Third, does the regulation deny to the holders of the right their preferred means of exercising that

Page 82

[139] Is there some evidence that the members of the Class have section 35 rights

to hunt and harvest within Nova Scotia, including Cape Breton, pursuant to either

treaty rights or aboriginal rights?⁵²

[140] While to date, only Status Indians associated with Indian Act bands have

been expressly found to have section 35 rights, no court decision in Nova Scotia

has expressly excluded the possibility that other members of the aboriginal

Mi’Kmaw community who are not Status Indians associated with bands, may also

have section 35 treaty or aboriginal rights.

[141] The question of whether the Plaintiffs are included in the group that

constitutes the “aboriginal peoples” of Nova Scotia presently entitled to exercise

section 35 rights has not been expressly answered by the courts of Nova Scotia, but

is an issue common to them all.

[142] Each of the proposed Plaintiffs on their own behalf and on behalf of the

Class have provided some evidence, consistent with the pleadings, that they may

have section 35 treaty or aboriginal rights to hunt and harvest in traditional

Mi’Kmaw hunting and fishing grounds throughout Nova Scotia, including Cape

Breton.

[143] Kenneth Langille states in his affidavit that:

“I am Mi’kmaq. I self identify as Mi’kmaq, I am of Mi’kmaq ancestry and I am accepted

by my community as Mi’kmaq… I am a direct descendent of the Mi’Kmaw community at

Wycomocagh, Cape Breton Island… I am a beneficiary of the 1760/61 treaty between the

right? The onus of proving a prima face infringement lies on the individual or group challenging the

legislation.… If a prima facie interference is found, the analysis moves to the issue of justification. This is the

test that addresses the question of what constitutes legitimate regulation of a constitutional aboriginal right. The

justification analysis would proceed as follows. First, is there a valid legislative objective? Here the court would

inquire into whether the objective of Parliament in authorizing the department to enact regulations regarding

fisheries is valid. The objective of the department and setting out the particular regulations would also be

scrutinized. An objective aimed at preserving section 35(1) rights by conserving and managing a natural

resource, for example, would be valid. Also valid are objectives purporting to prevent the exercise of section

35(1) rights that would cause harm to the general populace or to aboriginal people themselves, or other

objectives found to be compelling and substantial.” See also R v. Paul, 2018 NSCA 70 per Fichaud JA; leave to

appeal dismissed [2019] SCCA No. 484 on March 7, 2019. [My bolding added]

⁵²While not material to the issues facing this Court, but illustrative of the historical context relevant to such claims,

previous jurisprudence has found that the Mi’Kmaw population of mainland Nova Scotia (English after 1713) and

Cape Breton (English after 1758) in the 1700s plummeted. In relation to Cape Breton, it was thought that this was

“when moose stocks collapsed”, such that between 1765 –7 only 4 to 5 families resided there full-time – see for

example R v. Stephen Marshall, 2002 NSSC 57 at paras. 47-61.

Page 83

Mi’Kmaw and her Majesty… I participated in the annual moose hunt in Cape Breton

Island... normally harvested one moose per year”.

[144] Dianne Langley states in her affidavit that (including the same references to

being “Mi’kmaq as Mr. Langille did):

“I am a direct descendent of members of the Mi’Kmaw communities at Shubenacadie,

New Germany, and Sable River. I am a beneficiary of the 1760/61 treaty between the

Mi’Kmaw and her Majesty… Up until the Province of Nova Scotia’s decision in 2017 to

revoke recognition of ATRA Passports I exercised my right to hunt and harvest in Nova

Scotia using my ATRA passport…For many years I hunted with my father and then later

with my husband….”.

[145] Robert Cooper states in his affidavit that:

“I am Mi’Kmaw and a registered Indian under the Indian Act. However, I am not a

member of a registered band of Indians in Nova Scotia or Canada… I am a member of the

Atlantic General List of Indians… I am a direct descendent of members of the Mi’Kmaw

communities at Shubenacadie, Gold River and New Germany. I am a beneficiary of the

1760/61 treaty between the Mi’Kmaw and her Majesty. Up until the Province of Nova

Scotia’s decision in 2017 to revoke recognition of ATRA passports, I exercised my right to

hunt and harvest in Nova Scotia… participated in the annual moose hunt in Cape Breton

Island….normally harvested one moose per year.”

[146] Stephen Joyce states in his affidavit that (including the same references to

being Mi’kmaq as Mr. Langille did):

“I am a direct descendent of Jean Baptiste Cope, a Mi’Kmaw signatory to the 1752 Treaty

between her Majesty and the Tribe of Mi’Kmaw Indians of the Eastern Coast of Nova

Scotia. I am a member of the Tribe of the Mi’Kmaw Indians of Nova Scotia and a

descendent of the Tribe and a beneficiary of the 1752 Treaty… Up until the Province of

Nova Scotia’s decision in 2017 to revoke recognition of ATRA passports I exercised my

right to hunt and harvest in Nova Scotia… I participated in the annual moose hunt in Cape

Breton Island. I normally harvested one moose per year.”

[147] Notably, if the Treaty of 1752 remains extant, the wording thereof is

significant to Mr. Joyce in particular.⁵³

⁵³I say, “if the Treaty of 1752 remains extant” (legally effective) because at this stage of this proceeding there is no

conclusive evidentiary proof that it is extant. The Supreme Court of Canada had declared it so in R v Simon, [1985]

2 SCR 387, but only in relation to the lands of a Reserve, and included therewith, as “both parties agree, that the

highway on which [Mr. Simon] was stopped ‘is adjacent to the Shubenacadie Indian Reserve’ and ‘passes through

or by a forest, wood or other resource frequented by moose or deer’.” The court also stated: “[Nova Scotia] further

Page 84

[148] In R. v. Marshall, [1999] 3 SCR 456, (No. 1), Donald Marshall Jr. relied

exclusively on the Treaties of 1760 - 61 and placed no reliance on an aboriginal

right claim (para. 2) or on the Treaty of 1752, as the court set out:

“15

In 1749, following one of the continuing wars between Britain and

France, the British Governor at Halifax had issued what was apparently the first of the

Proclamations “authorizing the military and all British subjects to kill or capture any

Mi’kmaq found, and offering a reward”. This prompted what the Crown’s expert witness at

trial referred to as a “British-Mi’kmaq war”. By 1751 relations had eased to the point where

the 1749 Proclamation was revoked, and in November 1752 the Shubenacadie Mi’kmaq

entered into the 1752 Treaty which was the subject of this Court’s decision in Simon. This

treaty stated in Article 4 that:

It is agreed that the said Tribe of Indians shall not be hindered from, but have

free liberty of Hunting and Fishing as usual and that if they shall think a Truckhouse

needful at the River Chibenaccadie or any other place of their resort, they shall have

the same built and proper Merchandize lodged therein, to be exchanged for what the

Indians shall have to dispose of, and that in the mean time the said Indians shall have

free liberty to bring for Sale to Halifax or any other Settlement within this Province,

Skins, feathers, fowl, fish or any other thing they shall have to sell, where they shall

have liberty to dispose thereof to the best Advantage. [Emphasis added.]

16

It will be noted that unlike the March 10, 1760, document, the

earlier 1752 Treaty contains both a treaty right to hunt and fish “as usual” as well as a

more elaborate trade clause. The appellant here initially relied on the 1752 Treaty as

the source of his treaty entitlement. In Simon, Dickson C.J., at p. 404, concluded that

on the basis of the evidence adduced in that case, “[t]he Crown has failed to prove that

the Treaty of 1752 was terminated by subsequent hostilities” and left the termination

issue open (at pp. 406-7). The Crown led more detailed evidence of hostilities in this

case. It appears that while the British had hoped that by entering the 1752 Treaty other

Mi’kmaq communities would come forward to make peace, skirmishing commenced

again in 1753 with the Mi’kmaq. France and Britain themselves went to war in 1754

in North America. In 1756, as stated, another Proclamation was issued by the British

authorizing the killing and capturing of Mi’kmaq throughout Nova Scotia. According to the

trial judge, at para. 63, during the 1750s the “French were relying on Mi’kmaq assistance in

submits, based on Isaac, that the Crown, through occupancy by the white man under Crown grant or lease, has, in

effect, extinguished native rights in Nova Scotia in territory situated outside of Reserve lands… In my opinion, it is

not necessary to come to a final decision on the [Province’s] argument… In the present appeal [Mr. Simon] was

charged with the offence of possession of a rifle and ammunition on a road passing through or by a forest, wood or

other resort. The agreed statement of facts does not disclose whether or where [Mr. Simon] had hunted or was

intending to hunt. In particular, there is no evidence to sustain the conclusion that [he] had hunted, or intended to

hunt, on the highway which might well raise different considerations… “It seems clear that, at a minimum, the

Treaty recognizes some hunting rights in Nova Scotia on the Shubenacadie Reserve and that any Mi’kmaq

Indian who enjoys those rights has an incidental right to transport a gun and ammunition to places where he

could legally exercise them.” (at paras. 34-38; italics in the original). [My bolding added]

Page 85

almost every aspect of their military plans including scouting and reconnaissance and

guarding the Cape Breton coastline”. This evidence apparently persuaded the appellant

at trial to abandon his reliance on the 1752 Peace and Friendship Treaty. The Court

is thus not called upon to consider the 1752 Treaty in the present appeal.”

[My bolding added]

[149] In R v. (Stephen) Marshall and Bernard, 2005 SCC 43, 35 Mi’Kmaw

individuals were charged with cutting and removing timber from Crown lands

without authorization or with unlawful possession of Crown timber in present-day

New Brunswick and Nova Scotia. Notably, the NCNS was an intervener in that

case.

[150] The issue was whether the accused Mi’Kmaw held aboriginal title to the

Crown lands they logged or had treaty rights to do so. Importantly, the Mi’Kmaw

did not assert an aboriginal right to harvest forest resources, but aboriginal title

simpliciter. Moreover, although no claim was made pursuant to the Treaty of

1752, there was a claim based on the Treaties of 1760-61.

[151] In relation to aboriginal title the court stated:

70 In summary, exclusive possession in the sense of intention and capacity to control is

required to establish aboriginal title. Typically, this is established by showing regular

occupancy or use of definite tracts of land for hunting, fishing or exploiting

resources: Delgamuukw, at para. 149. Less intensive uses may give rise to different rights.

The requirement of physical occupation must be generously interpreted taking into account

both the aboriginal perspective and the perspective of the common law: Delgamuukw, at

para. 156. These principles apply to nomadic and semi-nomadic aboriginal groups; the

right in each case depends on what the evidence establishes. Continuity is required, in the

sense of showing the group's descent from the pre-sovereignty group whose practices are

relied on for the right. On all these matters, evidence of oral history is admissible, provided

it meets the requisite standards of usefulness and reasonable reliability. The ultimate goal

is to translate the pre-sovereignty aboriginal right to a modern common law right. This

must be approached with sensitivity to the aboriginal perspective as well as fidelity to the

common law concepts involved.

…

73

In Marshall, Curran Prov. Ct. J reviewed the authorities and concluded that the line

separating sufficient and insufficient occupancy for title is between irregular use of

undefined lands on the one hand and regular use of defined lands on the other.

"Settlements constitute regular use of defined lands, but they are only one instance of it"

(para. 141).

Page 86

74

In Bernard, Lordon Prov. Ct. J. likewise found that occasional visits to an area did

not establish title; there must be "evidence of capacity to retain exclusive control" (para.

110) over the land claimed.

75 These tests correctly reflect the jurisprudence as discussed above.

76 Holding otherwise, Cromwell J.A in Marshall held that this test was too strict

and that it was sufficient to prove occasional entry and acts from which an intention

to occupy the land could be inferred. Similarly, in Bernard, Daigle J.A. held that the trial

judge erred in requiring proof of specific acts of occupation and regular use in order to

ground aboriginal title. It was not in error to state, as Cromwell J.A. did, that acts from

which intention to occupy the land could be inferred may ground a claim to common

law title. However, as discussed above, this must be coupled with sufficiently regular

and exclusive use in order to establish title in the common law sense.

77 Cromwell J.A. found that this additional requirement is not consistent with the

semi-nomadic culture or lifestyle of the Mi'kmaq. With respect, this argument is

circular. It starts with the premise that it would be unfair to deny the Mi'kmaq title.

In order to avoid this result, it posits that the usual indicia of title at common law -

possession of the land in the sense of exclusive right to control - should be diminished

because the pre-sovereignty practices proved do not establish title on that test. As

discussed, the task of the court is to sensitively assess the evidence and then find the

equivalent modern common law right. The common law right to title is commensurate

with exclusionary rights of control. That is what it means and has always meant. If

the ancient aboriginal practices do not indicate that type of control, then title is not

the appropriate right. To confer title in the absence of evidence of sufficiently regular

and exclusive pre-sovereignty occupation, would transform the ancient right into a new and

different right. It would also obliterate the distinction that this Court has consistently made

between lesser aboriginal rights like the right to fish and the highest aboriginal right, the

right to title to the land: Adams, Côté.

78 The question remains whether the trial judges, having applied essentially the

right test, erred in their assessment of the evidence or application of the law to the

evidence. Absent this, there is no ground for appellate intervention. As discussed, the

evidence of aboriginal practices must be assessed from the aboriginal perspective. The

question is whether the practices on a broad sense correspond to the right claimed.

79 Curran Prov. Ct. J. in Marshall reviewed the facts extensively and summarized

his conclusions as follows:

a) The Mi'kmaq of 18th century Nova Scotia could be described as "moderately

nomadic" as were the Algonquins in Côté, supra. The Mi'kmaq, too, moved with

the seasons and circumstances to follow their resources. They did not necessarily

return to the same campsites each year. Nevertheless, for decades before and after

Page 87

1713 local communities on mainland Nova Scotia stayed generally in the areas

where they had been.

b) On the mainland the Mi'kmaq made intensive use of bays and rivers and at least

nearby hunting grounds. The evidence is just not clear about exactly where those

lands were or how extensive they were. It is most unlikely all the mainland was

included in those lands. There just weren't enough people for that.

c) As for Cape Breton, there simply is not enough evidence of where the Mi'kmaq

were and how long they were there to conclude that they occupied any land to the

extent required for aboriginal title.

d) In particular, there is no clear evidence that the Mi'kmaq of the time made any

use, let alone regular use, of the cutting sites where these charges arose, either

on the mainland or in Cape Breton. The [Respondents] have not satisfied me on

the balance of probability that their ancestors had aboriginal title to those

sites. (para. 142)

80 Applying the law to these facts, Curran Prov. Ct. J. "concluded that the Mi'kmaq

of the 18th century on mainland Nova Scotia probably had Aboriginal title to lands

around their local communities, but not to the cutting sites" (para. 143).

…

E. Extinguishment, Infringement, Justification and Membership

84 The Crown argued that even if common law aboriginal title is established, it was

extinguished by statutes passed between 1774 and 1862 relating to forestry on Crown

lands. Since aboriginal title is not established, it is unnecessary to consider this issue. Nor

is it necessary to consider whether the statutes under which the respondents were charged

infringe aboriginal title, or if so, whether that infringement is justified. Finally, it is

unnecessary to consider continuity issues relating to the sites claimed.

F. Aboriginal Title under the Royal Proclamation

85 The respondents argue that the Royal Proclamation of 1763 (Appendix) reserved

to the Mi'kmaq title in all unceded, unpurchased land in the former Nova Scotia, which

later was divided into Nova Scotia and New Brunswick. I agree with the courts below

that this argument must be rejected.

…

92 The respondents argue that the underlined phrase reserved to the Mi'kmaq all

unceded or unpurchased land within the colony of Nova Scotia. However, this phrase

Page 88

merely repeats the wording from the preamble. It does not create new rights in land. This is

confirmed by the fact that it does not use the direct and clear language used elsewhere to

reserve lands to the Indians and is reinforced by its relation to subsequent provisions. If

the Royal Proclamation had reserved virtually the entire province of Nova Scotia to the

Mi'kmaq, the subsequent requirement that settlers leave lands "still reserved to the ....

Indians", would have had the effect of ejecting all the settlers from the colony. Yet the

historical evidence suggests extensive settlement of Nova Scotia shortly after the Royal

Proclamation.

…

96 In summary, the text, the jurisprudence and historic policy, all support the

conclusion that the Royal Proclamation did not reserve the former colony of Nova Scotia

to the Mi'kmaq.

G. Aboriginal Title Through Belcher's Proclamation

97 Colonial governors, including those of the former colony of Nova Scotia, were

issued a Royal Instruction on December 9, 1761, forbidding them from granting lands

adjacent to or occupied by the Indians, including "any lands so reserved to or claimed by

the said Indians". Pursuant to the instruction, in 1762 the then governor of Nova Scotia,

Jonathan Belcher, issued a Proclamation directing settlers to remove themselves from lands

"reserved to or claimed by" the Indians. It further directed that "for the more special

purpose of hunting, fowling and fishing, I do hereby strictly injoin and caution all persons

to avoid all molestation of the said Indians in their said Claims, till His Majesty's pleasure

in this behalf shall be signified" (emphasis added).

98 Three issues arise in determining the applicability of Belcher's Proclamation: first

the geographical area it covers, second, the activities it covers and third, whether it was

concluded with the relevant authority.

…

105

In summary, the defence based on Belcher's Proclamation faces formidable

hurdles. Did Belcher have the authority to make it, or was it void ab initio, as claimed at

the time? If it was valid, was it temporary and conditional on further order of His Majesty?

If invalid, where is the evidence of Mi'kmaq reliance or dishonorable Crown conduct?

Finally, whatever the legal effect of Belcher's Proclamation, it seems that it was intended

to apply only to certain coastal areas and to "hunting, fowling and fishing". On the

evidence before us, it is impossible to conclude that Belcher's Proclamation could

provide a defence to the charges against the respondents.

Page 89

[152] The court found that the convictions should stand. Stephen Marshall and the

others did not establish aboriginal title or treaty rights to the lands they logged. The

court stated in conclusion:⁵⁴

IV. Conclusion

106 The trial judge in each case applied the correct legal tests and drew conclusions of

fact that are fully supported by the evidence. Their conclusions that the respondents

possessed neither a treaty right to trade in logs nor aboriginal title to the cutting sites must

therefore stand. Nor is there any basis for finding title in the Royal

Proclamation or Belcher's Proclamation.

107 The constitutional questions stated in Marshall, as follows:

1. Is the prohibition on cutting or removing timber from Crown lands without

authorization pursuant to s. 29 of the Crown Lands Act, R.S.N.S. 1989, c. 114,

inconsistent with the treaty rights of the respondents/appellants on cross-appeal

contained in the Mi'kmaq Treaties of 1760-61, and therefore of no force or

effect or application to them, by virtue of ss. 35(1) and 52 of the Constitution Act,

1982?

2. Is the prohibition on cutting or removing timber from Crown lands without

authorization pursuant to s. 29 of the Crown Lands Act, R.S.N.S. 1989, c. 114,

inconsistent with Mi'kmaq aboriginal title to the provincial Crown land from

which the timber was cut or removed, by virtue of (i) exclusive occupation by

the Mi'kmaq at the time the British acquired sovereignty over the area, or

(ii) the Royal Proclamation, 1763, and therefore of no force or effect or

application to the respondents/appellants on cross-appeal by virtue of ss.

35(1) and 52 of the Constitution Act, 1982?

should be answered in the negative.

108 The constitutional questions stated in Bernard, as follows:

1. Is the prohibition on unauthorized possession of Crown timber pursuant to s.

67(1)(c) of the Crown Lands and Forests Act, S.N.B. 1980, c. C-38.1 and

amendments, inconsistent with the treaty rights of the respondent contained in the

⁵⁴The Royal Proclamation of 1763 is attached as an Appendix to the Supreme Court of Canada decision. It arose as

a result of a peace treaty between the French and English on February 10, 1762, and referenced: “four distinct and

separate governments, styled and called by the names of Québec, East Florida, West Florida and Grenada, and

limited and bounded as follows… We have also with the advice of our Privy Council thought fit to annex the

islands of St. John’s and Cape Breton or Isle Royale, with the lesser islands adjacent thereto to our

Government of Nova Scotia.” [My bolding added]

Page 90

Miramichi Mi'kmaq Treaty of June 25, 1761, and therefore of no force or effect

or application to the respondent by virtue of ss. 35(1) and 52 of the Constitution

Act, 1982?

2. Is the prohibition on unauthorized possession of Crown timber pursuant to s.

67(1)(c) of the Crown Lands and Forests Act, S.N.B. 1980, c. C-38.1 and

amendments, inconsistent with Mi'kmaq aboriginal title to the provincial Crown

land from which the timber was cut, by virtue of (i) exclusive occupation by the

Mi'kmaq at the time the British acquired sovereignty over the area, or

(ii) Belcher's Proclamation, or (iii) the Royal Proclamation, 1763, and therefore

of no force or effect or application to the respondent by virtue of ss. 35(1) and 52

of the Constitution Act, 1982?

should be answered in the negative.

109

I would allow the appeals, dismiss the cross-appeal in Marshall and restore the

convictions. There is no order as to costs.

[My italicization and bolding added]

[153] More specifically, the Plaintiffs here rely upon the Treaty of 1752.

[154] The printed Proclamation of the Treaty of 1752 references the parties as:

Peregrine Thomas Hopson Esq. Capt. Gen. and Gov.in Chief in and over his Majesty’s

Province of Nova Scotia or Acadie…and Major Jean Baptiste Cope, Chief Sachem of

the Tribe of Mick Mack Indians inhabiting the Eastern Coast of the said Province,

and Andrew Hadley Martin, Gabriel Martin and Francis Jeremiah, Members and

Delegates of the said Tribe, for themselves and their said Tribe their Heirs, and the

Heirs of their Heirs forever,… it is agreed that the said Tribe of Indians shall not be

hindered from, but shall have free liberty of Hunting and Fishing as usual; and that if

they shall think a Truckhouse needful… and that in the mean time the said Indians shall

have free liberty to bring for sale to Halifax or any other Settlement within the Province,

Skins, feathers, fowl, fish or any other thing they shall have to sell, where they shall have

liberty to dispose thereof to the best Advantage.”

[My bolding added]

[155] In Daniels v. Canada, [2016] 1 SCR 99, the court was addressing the

decisions from the Federal Court of Appeal and the trial judge in the Federal Court

(2013 FC 6). In the latter decision, Justice Phelan put the issue as follows:

[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

Page 91

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.

[156] While distinguishable because that case dealt with section 91(24) of the

Constitution Act, 1982, rather than section 35 thereof, the Supreme Court of

Canada upheld Justice Phelan’s conclusion that the Métis and non-Status Indians

are ‘Indians’ under section 91(24) of the Act. The Supreme Court of Canada

specifically rejected the Court of Appeal’s conclusion that “Indians” under section

91(24) do not include non-Status Indians and should only apply to those Métis who

meet the three Powley [2003 SCC 43] criteria. As Justice Abella wrote for the

court:

“[35] The term ‘Indian’ or ‘Indians’ in the constitutional context therefore has two

meanings: a broad meaning, as used ins. 91(24), that includes both Métis and Inuit

and can be equated with the term ‘Aboriginal peoples of Canada’ used in s. 35, and a

narrower meaning that distinguishes Indian bands from other Aboriginal

peoples…[37] The constitutional changes, the apologies for historic wrongs, a growing

appreciation that Aboriginal and non-Aboriginal people are partners in

Confederation… all indicate that reconciliation with all of Canada’s Aboriginal

peoples is Parliament’s goal.”

[My bolding added]

[157] Notably the NCNS was an intervener in Daniels. This may have been

because one of the three applicants was from Nova Scotia:

“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.”

[158] To give context to the litigation proposed by the Plaintiffs herein, it can be

helpful to cite from Justice Phelan’s reasons, particularly as they relate to the

history of Nova Scotia, or reference matters that may arise in the present

litigation:⁵⁵

⁵⁵The Plaintiffs have suggested that they may retain William Wickens as an expert witness. The Province has

previously relied on Stephen Patterson, Alexander von Gernet and others in such cases.

Page 92

V.

NATURE OF THE PROBLEM

The circumstances which the Plaintiffs claim to have given rise to this litigation is

[84]

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

The Métis and non-status Indian people, lacking even the protection of the Department

of Indian Affairs and Northern Development, are far more exposed to discrimination

and other social disabilities. It is true to say that in the absence of Federal initiative in

this field they are the most disadvantaged of all Canadian citizens.

…

88

In an Interim Report from the Consultative Group on MNSI Socioeconomic

Development in 1979 (a federal government report developed to outline future consultation

strategies with provincial MNSI associations and the Native Council of Canada), federal

officials point out:

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

the root of the non-status Indian issue);

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

(under the Constitution) to status Indians and land reserved for Indians whereas

the provinces have recognized no special obligations to native people other than

those imposed by treaty or in the Prairie provinces, The Natural Resources

Transfer Act (1930). Neither level of government recognizes any special legal

obligation for people of Indian ancestry other than status Indians.

(c) while neither the federal nor provincial level of government officially recognizes

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

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

89

In addition to the discussion of federal provincial positions in respect of MNSI, the

paper gave a useful synopsis of some of the historical factors affecting MNSI; none of

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

90 The process of recording the history of native people in Canada is an activity that

will be ongoing well into the future. Although over-simplification of such a massive

subject is fraught with danger, a brief explanation of certain historical elements is

necessary as background to an understanding of present conditions concerning the legal

status, geographic location and current circumstances of native people.

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

August 1978 entitled "The Historical Development of the Indian Act" indicates that one of

the first legislative provisions to differentiate between "status" and "non-status" Indians

was an 1851 amendment (An Act to repeal in part and to amend an Act, intituled, An Act

Page 93

for the better protection of the Lands and property of the Indians in Lower Canada, 14 &

15 Vict, c 59) to the Upper Canada Indian Protection Act of 1850 (An Act for the

Protection of the Indians in Upper Canada from imposition, and the property occupied or

enjoyed by them from trespass or injury, 13 & 14 Vict, c 74). This amendment was made

to clarify the definition of an "Indian" in relation to the legislative purpose of securing

Indian Land from "white" encroachment. Through the definition of "Indian", the 1851

amendment indirectly excluded "whites" living among Indians and non-Indian males

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

definition of "Indian" included:

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

the several classes hereinbefore designated, the children issued of such marriages,

and their descendants.

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

carried throughout the evolution of the Indian Act to the present day. Those practices

have of course had a major influence on the composition of the group called non-

status Indians.

92 A few years later, on June 10, 1857, an "Act for the Gradual Civilization of the

Indian Tribes in the Canadas", 20 Vict, c 25-26, contained a preamble indicating that the

government favoured integration of Indians rather than additional legislative exclusions.

The preamble said this:

Whereas it is desirable to encourage the progress of Civilization among the Indian

Tribes in this Province, and the gradual removal of all legal distinctions between

them and her Majesty's other Canadian Subjects, and to facilitate the acquisition of

property and of the rights accompanying it, by such individual Members of the said

Tribes as shall be found to desire such encouragement and to have deserved it ...

This 1857 Act started the process of enfranchisement for "deserving Indians" —

another practice that was destined to be continued throughout the evolution of

the Indian Act and to contribute substantial numbers to the ranks of the non-status

Indians.

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

for the future division of status Indians and other people of native ancestry, which was later

extended to all provinces, events in the vast territory of the Hudson's Bay Company were

continuing to recognize another group referred to as "Métis". The term, originally restricted

to the offspring of French and Indian parents, later Scottish and Indian parents and

predominantly west of southern Ontario, has gradually been broadened in common usage

to include all people of mixed Indian and other ancestry who are not status Indians but who

claim a culture distinction. However, amongst the native people it still carries a

connotation somewhat different than the term non-status Indian, and relates principally to

Page 94

the mixed ancestry descendants of the fur trade era who did not become registered as

Indians during the treaty-making and registration processes.

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

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

Because of their community of interest as people of Indian ancestry, their grievances

against government, and their adverse social and economic circumstances, the group has

been able to maintain its identity and form national, provincial and regional associations

claiming a potential membership of approximately 1,000,000 people.

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

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

inter-relationships and integrative forces have been operative for a comparatively long

time, people of some native ancestry, other than status Indians living on reserves, are

generally distributed throughout the population. There are some communities, often near

reserves, where groups of inter-related families of native ancestry constitute a recognized

portion of the community. But throughout the Maritimes, and the southern portions of

Ontario and Quebec, there are few communities considered to be primarily Métis or non-

status Indian in character.

…

A. Non-status Indians

116 Non-status Indians as a group must have two essential qualities by definition; they

have no status under the Indian Act and they are Indians. The name itself suggests the

resolution of this point in this litigation.

117

In the modern era, the difficulty of definition in part has been addressed. As

indicated earlier, the government in 1980 defined the core group of MNSI as a group of

native people who maintained a strong affinity for their Indian heritage without possessing

Indian status. Their "Indianness" was based on self identification and group recognition.

That group was estimated at between 300,000 and 450,000.

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

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

119

It is clear that the non-status Indians description is based on substantial connection,

both subjectively and objectively, to Indian ancestry. Degrees of "blood purity" have

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

laws have a discordance in Canada reflective of other places and times when such blood

criterion lead to horrific events (Germany 1933-1945 and South Africa's apartheid as

examples). These are but two examples of why Canadian law does not emphasize this

blood/racial purity concept.

Page 95

120

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

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

121

In Powley, above, in identifying who is a "Métis", the Court did not set out a rigid

test or explore the outer limits of the definition but outlined a method of determining the

question on an individual basis. This Court will not try, in defining non-status Indians, to

do more than the Supreme Court did with Métis.

122 The group of people characterized as "non-status Indians" are those to whom status

could be granted by federal legislation. They would be people who had ancestral

connection not necessarily genetic to those considered as "Indians" either in law or fact or

any person who self-identifies as an Indian and is accepted as such by the Indian

community, or a locally organized community, branch or council of an Indian association

or organization which which that person wishes to be associated.

123

It may well be that there must be a determination on a case by case basis for each

individual but this general description sufficiently identifies a group of people for whom

the issues in this case have meaning.

B. Métis

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

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

Manitoba Métis Council, who would limit the definition to those in and around the Red

River Settlement and their descendants who are of European and Indian heritage and who

followed distinct customs and ways of living.

125

In the Manitoba Métis Federation Inc. v. Canada (Attorney General) case (2007

MBQB 293, 223 Man. R. (2d) 42 (Man. Q.B.), aff'd in 2010 MBCA 71, [2010] 3 C.N.L.R.

233 (Man. C.A.), leave to appeal to Supreme Court of Canada granted, (2011), 417 N.R.

400 (note), 2011 CarswellMan 27 (S.C.C.) (available on WLCan) [Manitoba Métis

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

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

were the subject of the litigation.

126 However, in Powley, above, the Supreme Court was dealing with a Métis from

Sault St. Marie. In the present case the geographic range of the question of whether Métis

are Indians under s 91(24) is country-wide. The evidence shows that the term Métis was

and is used well outside of Western Canada. Cases involving agreements or provincial

laws are not necessarily determinative of the issue.

127

In Powley, above, the Supreme Court did not attempt to define the outer limits of

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

from the sine qua non of mixed aboriginal and non-aboriginal ancestry, a Métis is a person

who

Page 96

(a) has some ancestral family connection (not necessarily genetic);

(b) identifies himself or herself as Métis; and

(c) is accepted by the Métis community or a locally organized community branch,

chapter or council of a Métis association or organization with which that person

wishes to be associated.

128 As Powley, above, was a question of collective right to hunt, the last point was

critical. However, there may be individual circumstances where there is no such

association, council or organization but where the individual participates in Métis cultural

events or activities which show objectively how that person identifies himself or herself

subjectively as a Métis.

129 As the further historical evidence will show, there was no "one size/description fits

all" when it comes to examining Métis on a national scale.

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

purposes of the declaration which the Plaintiffs seek.

…

VIII. Historical Expert Witnesses

A. William Wicken (Plaintiffs' Witness)

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

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

trials.

148

In this matter Wicken was qualified as an expert witness within an area of expertise

in government policies towards Canada's Aboriginal peoples based on historical records

with a focus on Eastern and Central Canada (Ontario/Quebec).

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

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

broader geographical area than the Defendants' comparable witness Stephen Patterson.

150

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

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

evidence (where it tended to be opposite to Patterson's) I generally accepted because it was

more relevant to the issue of interpretation before this Court.

151 The key points of his evidence:

Page 97

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

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

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

Confederation".):

(i)

to control Aboriginal people and communities where necessary to

facilitate economic expansion and development of the Dominion;

(ii)

to honour the obligations to Aboriginal people that the Dominion had

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

while extinguishing those interests that may impede development;

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

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

diversity within Aboriginal populations and communities with more to come with

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

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

needed to address the needs of a developing Dominion.

(c) In the post-Confederation period, the federal government exercised its power

over "Indians" broadly in order to meet the above objectives.

B. Stephen Patterson (Defendants' Witness)

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

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

the University of Wisconsin.

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

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

the Crown. This fact does not justify calling into question either Patterson's integrity or

objectivity.

154

It was evident that Patterson had in-depth knowledge of Maritime aboriginal

history. He was accepted as an expert historian able to give historical evidence on

aboriginal peoples of eastern North America after their contact with the Europeans; the

general history of North America; the history of French and British colonization and its

impact on Amerindians and especially the Mi'kmaq, Maliseet and Passamaquoddy; and the

history of government policy (colonial, provincial, imperial and federal) respecting natives

as it relates to natives of eastern Canada with a particular focus on the natives of Atlantic

Canada.

Page 98

155 Patterson was clearly well qualified to give his opinion evidence on aboriginal

history in Atlantic Canada. He was a credible, co-operative and well-prepared witness.

However, his Report was narrowly focused both in time (no post-Confederation history)

and geography (restricted to Atlantic Canada). It is in this area of its limitations that

Patterson's evidence is less helpful than that of Wicken.

156 The central point of Patterson's evidence is that, pre-Confederation, in Atlantic

Canada Europeans defined "Indians" as members of indigenous communities or collectives

distinguished by common languages and customs, internal governments sufficient for their

needs and specific territories that defined their subsistence patterns and their relationship to

the land and its resources.

157

It was his opinion that this identification of "Indians" with communities informed

the Maritime delegates to the BNA Act process and influenced their acceptance of federal

authority over the field of "Indians and Lands Reserved for Indians".

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

the period before the effective assertion of European control. Further, neither the French

nor the British governments recognized any such community as distinct from either Indian

or settler societies.

159 Patterson saw the adoption of the first Indian Act as reflecting the statutes and

policies of Atlantic Canada in managing Indian affairs particularly in relying on the native

people to define themselves, where they lived, how many they were and in making treaties

and allocating reserves in a manner that reflected their communities.

160 To the extent that this Atlantic Canada experience influenced Atlantic Canada

delegates, its relevance to the issues before the Court is limited. As other witnesses

showed, the majority of Atlantic Canada delegates were more interested in the free trade

with central Canada aspect of Confederation than they were in the nation-building

envisioned by Sir John A Macdonald.

…

186 However, the evidence of the situation in each colony or area lends context to

determining the meaning and scope of s 91(24). The Indian power was an amalgam of

colonial power and British government power and responsibility for natives. It helps in

understanding who or what kinds of people fall under the rubric of "Indian" before and up

to Confederation and thereafter.

187 There had been 300 years of European-Indian contact in Atlantic Canada prior to

Confederation. At that time of contact the Mi'kmaq were located along the coasts of what

is now Nova Scotia and New Brunswick. In addition, the Maliseet and Passamaquoddy

were part of a larger aggregation known as the Etchemin whose homeland stretched from

the Kennebec River, now in Maine, to the Saint John River in New Brunswick.

Page 99

188 Natives of Atlantic Canada were generally organized into small self-governing

communities tied by cultural affinity rather than by a centralized leadership. As an

example, the Mi'kmaq were organized into at least 12 communities, ranging from 40 to 200

people. Each community had its own territory as a resource base.

189 Both the French and British tended to accept the natives' definitions of their

communities as they defined themselves. The two European powers also recognized the

existence of small government structures adequate for the needs of the particular native

group.

190 Both Patterson and Wicken focused on Atlantic Canada in their reports, looking at

how federal Indian policy shaped the lives of "Indians" in that area.

191 While Wicken focused on evidence relating to the pre-Confederation experience of

Indians themselves, Patterson focused on the post-Confederation observations and reports

of government officials. Not surprisingly they arrive at two different conclusions with

regards to what the situation in Atlantic Canada reveals about the Framers' broader

understanding of the term "Indian".

192 Patterson opined that the identity of Mi'kmaq, Maliseet and other aboriginal groups

in the area was connected to the communities where they lived. In this respect, the British

signed treaties with distinct communities of people in the 18^thcentury. In the 19^thcentury,

local colonial Maritime governments continued the tradition of dealing with natives as

distinct communities and sought to respect those communities' collective character.

Patterson's focus is on the community or tribal aspect in defining "Indian".

193 For the reasons already given, the Court generally preferred the evidence of Wicken

over Patterson where there was a conflict. Both experts' approaches are reasonable — one

seeing matters from the viewpoint of the native community; the other from the viewpoint

of the bureaucrats. However, in understanding what the situation was prior to 1867 and the

problems to be addressed by the Framers, Wicken's approach was more useful because it

identified behaviour which was of concern.

194 Wicken's opinion was that the situation of the Mi'kmaq and other native groups was

more complicated and reflected a long history of contact. In his view, the colonial

governments dealt with native people wherever they lived — on or off-reserve; in

communities of people or in smaller household units. Regardless of where they lived, how

they lived or their racial complexion, the local governments dealt with them as "Indians"

under the government's jurisdiction. When the federal government assumed responsibility

for "Indians" in 1867, they continued doing as the local governments had done before.

195 Patterson looked at the observations made by local and federal officials as recorded

in reports made in the late 19^thand 20^thcenturies to conclude that the reports showed a

remarkable continuity and confirmation of pre-Confederation community life. These

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reports discuss how, under federal jurisdiction, the Mi'kmaq and other native communities

engaged in a wide range of economic pursuits both on and off-reserve (which was a

departure from simply practising agriculture on reserves, which had been an old measure

of the success of native groups).

196 Patterson's point in making this comment is that whatever the impact of

government policy on the lives of Atlantic Canada natives, those natives maintained valued

aspects of culture and identity in their own way. This "continuity of community" indicates

that the federal policy was to protect deeply rooted societies and cultures.

197 Wicken, on the other hand, looked at the activities and movements of the Mi'kmaq

and Maliseet peoples themselves to illuminate the manner in which Indian policy was

applied at the local level. He points to evidence that demonstrates that these native people

were pushed inland, often on to reserves that were too small or of such poor quality that

families were unable to make their living through farming.

198 The English and the French established relationships with the natives and

developed Indian policies but in much different ways.

199 The French's relationship with the natives was primarily of military alliance, of

friendship and respectful co-existence of the respective communities. The relationship with

the natives was not formalized or reduced to writing. It consisted of more informal visits

by chiefs, the grant of military honours to the chiefs and gifts of guns, ammunition,

clothing and food stuffs.

200 Although the natives became dependant on French goods (i.e. metal pots, guns), the

Mi'kmaq, Maliseet and Passamaquoddy retained much of their autonomy and freedom of

action.

201 Because of this dependence on trade for European goods, the natives of the area

needed to maintain a relationship with a European power.

202 Unlike the French, the British established formal ties with the Mi'kmaq, Maliseet

and Passamaquoddy through treaties with the chiefs of tribes and through the policies of

colonial governors acting on directives from Britain. Although acting on general directives,

the method and implementation was left to the colony. The basic requirement was that any

colonial legislation regarding Indians had to be in conformity with the laws of Britain.

203 From 1725 to 1779 the colonial governors made treaties with the Mi'kmaq,

Maliseet and Passamaquoddy. These treaties were made between the chiefs of the various

Indian tribes and the governors including chiefs who were of mixed ancestry.

204 Reciprocal promises made in 1725 and 1726 were part of a scheme to regulate

relations between natives, soldiers and settlers and more importantly to bring natives under

British law.

Page 101

205 The British peace and friendship treaties were entered into in recognition of future

settlement and expansion as well as to break the strong ties that the tribes had with the

French.

206 After the Seven Years War, the British issued the Royal Proclamation of 1763

[1763 Proclamation]. It was a seminal document for all of British North America including

the natives of the continent.

207

In addition to establishing new colonies and dealing with colonial general

assemblies, the Proclamation set out Britain's plan in respect of unorganized and

unoccupied land putting a restriction on movement west of the Appalachian Mountains

into the North American interior where there were numerous natives and war or conflict

with the settlers would be inevitable.

208 The 1763 Proclamation affirmed British control and authority over the manner by

which Indian lands would be purchased and surrendered. There was a need to address the

frauds and other mischief perpetrated on natives. Britain recognized an obligation to

protect Indians and Indian lands.

And whereas it is just and reasonable, and essential to our Interest, and the Security of our

Colonies, that the several Nations or Tribes of Indians with whom We are connected, and

who live under our Protection, should not be molested or disturbed in the Possession of

such Parts of Our Dominions and Territories as, not having been ceded to or purchased by

Us, are reserved to them, or any of them, as their Hunting Grounds. We do therefore, with

the Advice of our Privy Council, declare it to be our Royal Will and Pleasure, that no

Governor or Commander in Chief in any of our Colonies of Quebec, East Florida, or West

Florida, do presume, upon any Pretence whatever, to grant Warrants of Survey, or pass any

Patents for Lands beyond the Bounds of their respective Governments, as described in their

Commissions; as also that no Governor or Commander in Chief in any of our other

Colonies or Plantations in America do presume for the present, and until our further

Pleasure be known, to grant Warrants of Survey, or pass Patents for any Lands beyond the

Heads or Sources of any of the Rivers which fall into the Atlantic Ocean from the West

and North West, or upon any lands whatever, which, not having been ceded to or

purchased by Us as aforesaid, are reserved to the said Indians, or any of them.

And We do further declare it to be Our Royal Will and Pleasure, for the present as

aforesaid, to reserve under our Sovereignty, Protection, and Dominion, for the use of the

said Indians, all the Lands and Territories not included within the Limits of Our said Three

new Governments, or within the Limits of the Territory granted to the Hudson's Bay

Company, as also all the Lands and Territories lying to the Westward of the Sources of the

Rivers which fall into the Sea from the West and North West as aforesaid.

. . .

Page 102

And whereas great Frauds and Abuses have been committed in purchasing Lands of the

Indians, to the great Prejudice of our Interests, and to the great Dissatisfaction of the said

Indians; In order, therefore, to prevent such Irregularities for the future, and to the end that

the Indians may be convinced of our Justice and determined Resolution to remove all

reasonable Cause of Discontent. We do, with the Advice of our Privy Council strictly

enjoin and require, that no private Person do presume to make any purchase from the said

Indians of any Lands reserved to the said Indians, within those parts of our Colonies where,

We have thought proper to allow Settlement; but that, if at any Time any of the Said

Indians should be inclined to dispose of the said Lands, the same shall be Purchased only

for Us, in our Name, at some public Meeting or Assembly of the said Indians, to be held

for that Purpose by the Governor or Commander in Chief of our Colony respectively

within which they shall lie; ...

209 For Nova Scotia, Britain instructed the governor to permit Euro-Canadian

settlement so long as natives were accommodated. Large tracts of land were given to

settlers so long as there was no claim or possession by natives.

210 The first reserves were created in Nova Scotia during the 1760s. This was done

usually by a licence of occupation which continued a form of trusteeship between

natives and government; a feature that has under various guises continued to the

present day.

(a) Nova Scotia

211 The situation of Nova Scotia and the Mi'kmaq in particular was used in

evidence as representative of the situation in Atlantic Canada and of the different

natives in each colony.

212 The Mi'kmaq were originally a fishing people. In the 1780s they moved away from

the coast. There is debate as to whether they were pushed inland by white settlers or moved

inland for their economic benefit to be able to better trade with the European settlers.

213

In cases where the land was fertile, non-native settlers encroached on the land and

governments sided with the Euro-Canadian (or predominantly Euro-Canadian) settlers over

the natives on the issue of encroachment. The end result was to marginalize Mi'kmaq

participation in the Nova Scotia economy causing families to live off-reserve or on

and off-reserve and scattering them across the province.

214 By 1864 there were about 28 reserves set aside for Mi'kmaq but many were

unoccupied. A number of Mi'kmaq left the reserve, camping in various areas within

what they considered to be their own territory to fish, trap (in winter) and to gather

wood for woodworking goods which they would sell to merchants and farmers.

215 Many of the Mi'kmaq wandered into Halifax or Sydney or Yarmouth which caused

problems with the Euro-Canadian urban population.

Page 103

216 Importantly, for this case, most of the Mi'kmaq population by at least 1864

was of mixed blood of varying degrees.

217 During this timeframe Indian agents compiled census data about natives living on

and off-reserve but they did not always distinguish those people who inter-

married. Sometimes they were identified as "half-breeds", sometimes not; sometimes half-

breeds were treated as "Indians", other times not. Even where a half-breed self-identified as

an "Indian", he/she might be included in the census as Indian but not necessarily so.

218 The evidence establishes the diversity of people and degree of aboriginal

connection which fell under the word "Indian".

219 The Court accepts the thrust of Wicken's evidence that Mi'kmaq were treated as

"Indians" at that time despite the mixed blood component, and the Mi'kmaq's preference to

"wander" (as it was then described) had an impact on the creation of the federal Indian

power.

220 In the 1840s, after authority over Indians transferred from the governor to the

legislative assembly, the policy was to assist the Mi'kmaq in becoming self-sufficient and

not to rely on government for food and supplies.

221 The Mi'kmaq who migrated into the cities could not provide for themselves and

they had to receive government aid. By the 1850s many of the Nova Scotia Mi'kmaq were

suffering from poverty which required the legislature to further allocate funds to purchase

supplies for these Mi'kmaq people.

222 The cost of supplying funds for Mi'kmaq needs was a serious political problem

with constant wrangling in the legislature. The potential cost of attempting to "civilize" the

Mi'kmaq (to make them more European in outlook, values and education) was significant.

Wicken's view was that Nova Scotia could not afford this process. The colony did not have

a taxing power and could only raise the money through customs tariffs and the sale of

surplus reserve land.

223 The elimination of this burden was one of the benefits flowing from the creation of

the federal power over Indians.

224 Prior to the Confederation process, Nova Scotia had control over Indians (the

Mi'kmaq) and their reserves. The Mi'kmaq included people of mixed ancestry who

were treated as Indians. The cost and administrative burden of the Indian population was

increasing while the revenue base of the colony (because of new British trade policy) was

about to decline.

[My bolding added]

Page 104

[159] I will briefly address the Treaty of 1725.

[160] This treaty was referenced in R v. Sappier and Gray, 2006 SCC 54, in an

appeal from the New Brunswick Court of Appeal.⁵⁶

[161] The court stated:

5. The Treaty Right Claim

62 As part of the agreed statement of facts put before the Court in the trial of

Messrs. Sappier and Polchies, the Crown admitted that the Treaty of 1725 and the

ratification thereof in 1726 are valid Treaties and that the defendants are

beneficiaries of those Treaties. The Crown's concession about the validity of the Treaty is

one of law. This Court has recognized that it is not bound by concessions of law: see M v.

H, [1999] 2 S.C.R. 3 (S.C.C.), at para. 45. Nonetheless, the fact that this concession

occurred in the context of a criminal prosecution raises fundamental fairness concerns.

63 The onus of proving that a treaty right has been extinguished rests with the Crown,

and not with the claimant: Badger, at para. 41; Sioui v. Quebec (Attorney General), [1990]

1 S.C.R. 1025 (S.C.C.), at p. 1061; R. v. Simon, [1985] 2 S.C.R. 387 (S.C.C.), at p.

406; Calder v. British Columbia (Attorney General), [1973] S.C.R. 313 (S.C.C.), at p. 404.

The Crown's concession in this regard is akin to it leading no evidence with respect to

extinguishment, insofar as it bears the burden of proof in this respect. The concession

was made at the beginning of trial, although the Crown's own witness, Dr. Stephen

Patterson, presented contradictory evidence with respect to the validity of the 1725

Treaty. The defendants, Messrs. Sappier and Polchies, have rightly relied on this

concession since trial. It is fundamental to their defence that they were not in unlawful

possession of Crown timber because they were exercising a valid treaty right to harvest

timber for personal use.

64 Although I would not discourage concessions regarding the applicable law in a

criminal prosecution, the Crown's concession in the present case has important

implications outside the Province of New Brunswick. The Treaty of 1725 was

negotiated in Boston by the Penobscots and ratified by Mi'kmaq representatives at

Annapolis Royal, Nova Scotia, in 1726 (see W. C. Wicken, Mi'kmaq Treaties on

Trial (2002), at pp. 28, 86 and 89; S. E. Patterson, "Anatomy of a Treaty: Nova Scotia's

First Native Treaty in Historical Context" (1999), 48 U.N.B.L.J. 41, at pp. 51 and 55). As

New Brunswick was not recognized as a separate colony until the partition of Nova

Scotia in 1784, it was Nova Scotia which negotiated on behalf of the British Crown

with the aboriginal peoples of the region: Patterson, at pp. 45-46. The precise

⁵⁶I bear in mind that in Sappier, the Court stated at para. 50: “This Court has imposed a site-specific requirement

on the aboriginal hunting and fishing rights … Lamer C.J. explained in Adams, at para. 30, that: ‘if an aboriginal

people demonstrates that hunting on a specific tract of land was an integral part of their distinctive culture … [the

right] is nonetheless defined as, and limited to, the right to hunt on the specific tract of land …’”.

Page 105

boundaries of British Nova Scotia following the 1713 Treaty of Utrecht, and the

intended geographic scope of the 1725 Treaty, are complex issues which have yet to be

historically or judicially resolved (see Wicken, at p. 101; Patterson, at pp. 42-46). These

issues, along with the validity of the 1725 Treaty, were recently the subject of judicial

consideration in the Province of Newfoundland and Labrador. In Newfoundland

(Minister of Government Services & Lands) v. Drew, 228 Nfld. & P.E.I.R. 1, 2003

NLSCTD 105 (N.L. T.D.), the trial judge concluded that the 1725-1726 Treaties have

no legal force insofar as they were terminated by subsequent hostilities between the

Mi'kmaq and the British. Alternatively, he held that the 1725 Treaty by its express terms

did not apply to Newfoundland, and that, in any event, the scope of the Treaty should be

interpreted as restricted to territory within the jurisdiction of the Governor of Nova Scotia.

An appeal from that judgment was dismissed by the Newfoundland and Labrador Court of

Appeal, 2006 NLCA 53 (N.L. C.A.). I raise this case only to illustrate the contentious

nature of the Crown's concession in the Sappier trial and its potential implications

outside the Province of New Brunswick. I do not wish to be taken as pronouncing on

the validity or geographical scope of the 1725 Treaty.

65 Given the Court's decision on the aboriginal rights issue, there is no need to

consider the treaty right claim in further detail.

[My bolding added]

[162] The Plaintiffs have provided some evidence consistent with the pleadings,

that they are the beneficiaries of section 35 treaty and aboriginal rights to hunt and

harvest within Nova Scotia, and that they had been recognized as such by the

Province’s acceptance of their ATRA Passports. They have differentiated in some

of their materials between what in the past had been referred to as “Nova Scotia”

and what had been referred to as “Cape Breton”, or “Ile-Royale” by the French.⁵⁷

⁵⁷As noted above, for present purposes it is important to recall that “Nova Scotia” has in the past included what is

present day New Brunswick until 1784; and the status of Cape Breton Island fluctuated over time: “Cape Breton,

annexation of to Nova Scotia – by the Treaty of Paris of 10 February 1763, the island of Cape Breton (which had

been invaded and taken by the British forces) was ceded by France to the King and Crown of Great Britain. By a

proclamation, issued by the King in October 1763, the islands of Cape Breton and St. John’s [Prince Edward Island]

were annexed to the government of Nova Scotia, and the Proclamation authorized the Governor to call General

Assemblies, in the said governments respectively, as soon as the circumstances of our colonies would admit. In the

year 1784, the Crown, by a commission to the Governor in Chief of Nova Scotia, and the islands of St. John’s and

Cape Breton, granted a constitution to the island of Cape Breton, to consist of a Lieutenant Governor, Council

and Assembly, distinct from that of Nova Scotia. The government of the Island continued, however, to be

regulated by Lieutenant Governor and Council, but no General Assembly was convened, as directed by the

commission of 1784. In the year 1820, the Crown, in the commission to the Governor in Chief of Nova Scotia,

annexed Cape Breton to Nova Scotia. The inhabitants of Cape Breton petitioned the Crown, complaining of

the illegality of the re-annexation by the Act of the Crown alone, without their consent, or by an Act of the

Imperial Parliament, as contrary to the Proclamation of 1763 in the commission of 1784. Held by the Judicial

Committee of the Privy Council, that such re-annexation was legal, and that the petitioners were not entitled

Page 106

[163] Given the evidence which is consistent with the pleadings, there is “some

evidence” of common issues that the Province infringed the section 35 rights of the

Class in making and implementing the decision to accept only federal Indian Act

status cards linked to Nova Scotia Indian Act bands for the purposes of harvesting

renewable resources under provincial jurisdiction.⁵⁸

[164] The Plaintiffs have put the associated common question as:

Whether the court should grant other remedies including declaratory relief, and an order

that the Province revert to recognizing ATRA Passport holders on the same basis as

holders of federally issued status cards linked to the Nova Scotia Indian Act bands for the

purpose of harvesting renewable resources under provincial jurisdiction as was the case up

to August 2017?

[165] There is some basis in the evidence, consistent with the pleadings, that the

Court may have a basis for granting relief to the Plaintiffs; such relief could

include declaratory relief and damages; it is premature to be more specific than this

other than that this is also a “common issue” across the Class.

to a separate Constitution under the commission of 1784: Cape Breton, in re-the Island of, 5 Moore, P.C. 259”–

from “A Digest of the Nova Scotia Common Law, Equity, Vice -Admiralty and Election Reports: (with notes) of

many unreported cases and of cases appealed to the Privy Council and Supreme Court of Canada from Nova

Scotia”, 1834 – 1888, volumes 1– 20; by Fred T. Congdon Barrister at Law, Toronto: Carswell and Company Law

Book Publishers, 1890. The preface reads: “This work contains a digest of all the reported cases before A.D. 1889,

decided in the Supreme, Equity, and Vice-Admiralty courts in this Province, and in the ad hoc Election Court…

under the head “Nova Scotia”, will be found the interesting case of the Petition of the Inhabitants of Cape Breton,

which determined the question of the legality of the re-annexation of that island to Nova Scotia… It was proposed to

insert in this preface a brief sketch of the development of a judicial system, from the time at which Governor

Cornwallis ‘set about… to establish the Courts of Judicature and the forms of proceeding in them’ following as his

model the courts of Virginia (see Nova Scotia archives, 605, and Order in Council of December 13, 1749) down to

the Judicature Act, but during the preparation of the Digest I have had no time to make the necessary investigations

for an accurate sketch, and deem it inadvisable to delay the work in order to do so now.” A further noteworthy

reading therein may be found under the heading “Statutes, Nova Scotia” at p. 1372, which sets out in more detail the

progression of legislation and governance for the new British colonies. A useful summary entitled “Historical

Review with Pre-Confederation Statutes and Documents” can be found in a bound volume at the Nova Scotia

Supreme Court Library in Halifax, 1815 Upper Water Street, Halifax, Nova Scotia, which itself is entitled: “British

North America Act and Amendments 1867-1948”, King’s Printer and Controller of Stationary, Ottawa, Canada,

1948. [My bolding added]

⁵⁸The Plaintiffs argue that if they establish the first two steps in the R v. Sparrow test [1990] 1 SCR 1075 at pp.

1111-1112, the third step requires the Province to justify its decision to infringe on the Plaintiffs’ section 35 rights.

The burden is on the Province to prove a valid legislative objective; and a legislative scheme or government action

which is consistent with the Crown’s fiduciary relationship toward aboriginal peoples (i.e. the SIMM Plaintiffs in

the case at Bar; albeit the Province suggests that the rights/interests of Status Indians associated with an Indian Act

Band may also be relevant in this respect).

Page 107

Common Issues 6, 7, 8, 9 and 10 - In deciding to accept only status Indian

cards linked to Nova Scotia Indian Act Band memberships did the Province

infringe the section 15 Charter of Rights rights of the Class, who are entitled

thereunder to ‘equal protection and equal benefit of the law without

discrimination’? And if so: are damages to the Class a ‘just and appropriate’

remedy under section 24 of the Charter (or by analogy for a breach of section

35 Constitution Act rights); and can the Court make an aggregate assessment

of the damages suffered by the Class?

[166] The Plaintiffs had initially claimed discrimination on the basis of race

(including the Province’s inaccurate and discriminatory perception that the

members of the Class are not “aboriginal” because they do not have status under

the Indian Act), aboriginality- residence and lack of status under the Indian Act.⁵⁹

[167] They argue a prima facie violation of s. 15 of the Charter:

i)

the Province’s decision to no longer recognize the ATRA passports created a

distinction and had a disproportionate effect on the Class as compared to Status

Indian Act Band members which distinction arose from the following ‘analogous

ground’ factors:

a) aboriginality-residence: the Province only recognizes Status Indians associated

with Indian Act Bands as being entitled to exercise section 35 rights; whereas

presuming they have section 35 rights, the Status Indians without a band

membership association who are on the Atlantic General List and Mi’kmaw who

are not Status Indians, are not entitled to exercise them because they do not live

on Reserve nor are they entitled to live on Reserve;

b) lack of status under the Indian Act: a similar argument to that made in relation to

“aboriginality-residence”.

[168] In Fraser v. Canada, 2020 SCC 28, the court recently considered section 15

of the Charter:

26 Section 15(1) of the Charter states:

⁵⁹At the hearing, the Plaintiffs did not pursue the allegation on the basis of race.

Page 108

(1) Every individual is equal before and under the law and has the right to the equal

protection and equal benefit of the law without discrimination and, in particular,

without discrimination based on race, national or ethnic origin, colour, religion, sex,

age or mental or physical disability.

27 Section 15(1) reflects a profound commitment to promote equality and prevent

discrimination against disadvantaged groups (Droit de la famille - 091768, (sub

nom. Quebec (Attorney General) v. A.) [2013] 1 S.C.R. 61(S.C.C.) [hereinafter Quebec v.

A], at para. 332; Kahkewistahaw First Nation v. Taypotat, [2015] 2 S.C.R. 548 (S.C.C.), at

paras. 19-20). To prove a prima facie violation of s. 15(1), a claimant must demonstrate

that the impugned law or state action:

• on its face or in its impact, creates a distinction based on enumerated or

analogous grounds;

And

• imposes burdens or denies a benefit in a manner that has the effect of

reinforcing, perpetuating, or exacerbating disadvantage.

(Québec (Procureure générale) c. Alliance du personnel professionnel et technique

de la santé et des services sociaux, [2018] 1 S.C.R. 464 (S.C.C.), at para.

25; Centrale des syndicats du Québec c. Québec (Procureure générale), [2018] 1

S.C.R. 522 (S.C.C.), at para. 22.)

…

30

It is helpful to start by defining the concept. Adverse impact discrimination occurs

when a seemingly neutral law has a disproportionate impact on members of groups

protected on the basis of an enumerated or analogous ground (see Watson Hamilton

and Koshan (2015), at p. 196; Sheppard (2001), at p. 549; see also Withler v. Canada

(Attorney General)[2011] 1 S.C.R. 396(S.C.C.), at para. 64; Taypotat, at para. 22). Instead

of explicitly singling out those who are in the protected groups for differential

treatment, the law indirectly places them at a disadvantage (Sophia Moreau, "What Is

Discrimination?" (2010), 38 Philosophy & Public Affairs 143, at p. 155).

46 The Court most recently addressed this issue in Taypotat. While concluding that

there was no discrimination demonstrated on the facts of the case, the Court acknowledged

that "facially neutral qualifications like education requirements" can be a breach of s.

15(1) because of their "disproportionate effect" on protected groups (paras. 15 and

22).

50 To prove discrimination under s. 15(1), claimants must show that a law or

policy creates a distinction based on a protected ground, and that the law perpetuates,

reinforces or exacerbates disadvantage. These requirements do not require revision in

Page 109

adverse effects cases. What is needed, however, is a clear account of how to identify

adverse effects discrimination, because the impugned law will not, on its face, include

any distinctions based on prohibited grounds (Withler, at para. 64). Any such distinctions

must be discerned by examining the impact of the law (Alliance du personnel

professionnel et technique de la santé et des services sociaux, at para. 25).

51 This inquiry has frequently been described as a search for a "disproportionate"

impact on members of protected groups (see Vriend, at para. 82; Withler, at para.

64; Taypotat, at paras. 21-23; Action Travail, at p. 1139; Egan v. Canada, [1995] 2 S.C.R.

513(S.C.C.), at para. 138, per Cory and Iacobucci JJ. dissenting; Moreau (2010), at p. 154;

Braun, at pp. 124-25; Vizkelety, at p. 176; Watson Hamilton and Koshan (2015), at p. 196;

Collins and Khaitan, at pp. 3-4; Dianne Pothier, "M'Aider, Mayday: Section 15 of the

Charter in Distress” (1996), 6 N.J.C.L. 295 at p. 322).

…

55 Disproportionate impact can be proven in different ways…

56 Two types of evidence will be especially helpful in proving that a law has a

disproportionate impact on members of a protected group. The first is evidence about

the situation of the claimant group. The second is evidence about the results of the

law.

57 Courts will benefit from evidence about the physical, social, cultural or other

barriers which provide the "full context of the claimant group's situation" …

58 Courts will also benefit from evidence about the outcomes that the impugned

law or policy (or a substantially similar one) has produced in practice. …

…

68 Some further observations.

69 First, whether the legislature intended to create a disparate impact is irrelevant

…

70 Second, if claimants successfully demonstrate that a law has a disproportionate

impact on members of a protected group, they need not independently prove that the

protected characteristic "caused" the disproportionate impact …

71 It is also unnecessary to inquire into whether the law itself was responsible for

creating the background social or physical barriers which made a particular rule,

requirement or criterion disadvantageous for the claimant group. …

Page 110

72 Third, claimants need not show that the criteria, characteristics or other factors

used in the impugned law affect all members of a protected group in the same way. …

…

76 This brings us to the second step of the s. 15 test: whether the law has the effect

of reinforcing, perpetuating, or exacerbating disadvantage (Alliance du personnel

professionnel et technique de la santé et des services sociaux, at para. 25). This inquiry

will usually proceed similarly in cases of disparate impact and explicit discrimination.

There is no "rigid template" of factors relevant to this inquiry (Quebec v. A, at para. 331,

quoting Withler, at para. 66). The goal is to examine the impact of the harm caused to

the affected group. The harm may include "[e]conomic exclusion or disadvantage,

[s]ocial exclusion ... [p]sychological harms ... [p]hysical harms ... [or] [p]olitical

exclusion", and must be viewed in light of any systemic or historical disadvantages

faced by the claimant group (Sheppard (2010), at pp. 62-63 (emphasis deleted)).

77 The purpose of the inquiry is to keep s. 15(1) focussed on the protection of groups

that have experienced exclusionary disadvantage based on group characteristics, as well as

the protection of those "who are members of more than one socially disadvantaged group

in society" (Colleen Sheppard, "Grounds of Discrimination: Towards an Inclusive and

Contextual Approach" (2001), 80 Can. Bar Rev. 893, at p. 896; see also Withler, at para.

58). As the Court noted in Quebec v. A when discussing the second stage of the s.

15 test:

The root of s. 15 is our awareness that certain groups have been historically

discriminated against, and that the perpetuation of such discrimination should

be curtailed. [para. 332]

(See also Taypotat, at para. 20.)

78 Notably, the presence of social prejudices or stereotyping are not necessary

factors in the s. 15(1) inquiry. They may assist in showing that a law has negative effects

on a particular group, but they "are neither separate elements of the Andrews test, nor

categories into which a claim of discrimination must fit" (Quebec v. A, at para. 329), since

[w]e must be careful not to treat Kapp and Withler as establishing an additional

requirement on s. 15 claimants to prove that a distinction will perpetuate prejudicial

or stereotypical attitudes towards them. Such an approach improperly focuses attention

on whether a discriminatory attitude exists, not a discriminatory impact, contrary

to Andrews, Kapp and Withler. [Emphasis in original; para. 327.]

(See also paras. 329-31.)

79 The perpetuation of disadvantage, moreover, does not become less serious

under s. 15(1) simply because it was relevant to a legitimate state objective. …

Page 111

80 Similarly, there is no burden on a claimant to prove that the distinction is

arbitrary to prove a prima facie breach of s. 15(1). It is for the government to

demonstrate that the law is not arbitrary in its justificatory submissions under s. 1 …

81 In sum, then, the first stage of the s. 15 test is about establishing that the law

imposes differential treatment based on protected grounds, either explicitly or

through adverse impact. At the second stage, the Court asks whether it has the effect

of reinforcing, perpetuating, or exacerbating disadvantage (Alliance du personnel

professionnel et technique de la santé et des services sociaux, at para. 25).

82 Where possible, the two inquiries should be kept distinct, but there is clearly

potential for overlap in adverse effects cases based on "the impossibility of rigid

categorizations" (Sheppard (2010), at p. 21). What matters in the end is that a court asks

and answers the necessary questions relevant to the s. 15(1) inquiry, not whether it keeps

the two steps of the inquiry in two impermeable silos.

[My bolding added]

[169] The Plaintiffs argue that the Province’s decision to discontinue recognition

of ATRA passports created a distinction between Status Indians who were also

band members and Class members based on analogous grounds to “race, national

or ethnic origin”, namely: aboriginality - residence and lack of status under the

Indian Act.

[170] They argue that the Province’s decision necessarily infringed their section

35 rights, while maintaining its position that Status Indians associated with Indian

Act bands in Nova Scotia remain recognized as having section 35 rights. In effect,

this created a distinction between Status Indians associated with Indian Act bands

and Class members, based on the analogous grounds of aboriginality-residence

(only Status Indians associated with a band can reside on Reserve) and a lack of

status under the Indian Act (only Status Indians associated with a band are

recognized as having section 35 rights).⁶⁰

[171] The Class members go on to argue that the distinction in their circumstances

is based on an analogous ground and creates a disadvantage for them by

perpetuating prejudice or stereotyping by continuing to be considered as “less

aboriginal - see e.g. Corbiere at para. 39 and Lovelace v. Ontario, 2000 SCC 37,

which involved substantive discrimination. In Daniels, 2016 SCC 12 at para. 14

⁶⁰The Supreme Court of Canada accepted in Corbiere v. Canada, [1999] 2 SCR 203, that the exclusion of off-

reserve members of an Indian band from the right to vote in band elections is inconsistent with section 15 of the

Charter of Rights. The court agreed that aboriginality - residence (off-reserve band members status) constituted a

ground of discrimination analogous to the enumerated grounds (at para. 6).

Page 112

the Court recognized that because the federal and provincial governments have

both alternatively denied legislative authority over non- Status Indians and Métis,

that resulted in them in being in “a jurisdictional wasteland with significant and

obvious disadvantaging consequences” which also has deprived them of programs,

services and intangible benefits recognized by all governments as needed. In a

judicial review of a federal Canadian Human Rights Tribunal decision, (the Merit

Decision) 2016 CHRT 2 and others, regarding off-Reserve First Nations children

who do not have Indian Act status, and who are not eligible for Indian Act status

but have a parent/guardian with, or who is eligible for, Indian Act status and have

actual needs for services that go beyond normative standards of care and are rooted

in the kinds of historical and contemporary disadvantages that breathes life into the

substantive equality analysis - such as the legacies of stereotyping, prejudice,

colonialism, displacement, and intergenerational trauma relating to Residential

Schools or the “Sixties Scoop” – the Court agreed they were eligible for “Jordan’s

Principle” services, and that there was discrimination as against them – see Justice

Favel’s September 2021 reasons in First Nations Child and Family Caring Society

of Canada v. Canada, 2021 FC 969. The federal government had provisionally

(using a so-called “protective appeal”) filed its objections to that decision -

however media reports on January 5, 2022 confirm that the federal government has

agreed to a “global resolution” between the parties.

[172] In Lovelace, a case relied upon by the Plaintiffs, Justice Iacobucci set out a

thumbnail sketch of that appeal:

1

In 1993, the Province of Ontario and representatives from Ontario's First

Nations entered into a process of negotiations with the goal of partnering in the

development of the province's first reserve-based commercial casino, which was to

become Casino Rama. Profits from the casino were to be shared among Ontario's

First Nations. Ultimately, the reserve site of the Chippewas of Mnjikaning First Nation

(formerly known as Rama First Nation) was selected and a development and operations

agreement was reached between Ontario, Carnival Hotels and Casinos Canada Ltd.

(Ontario's operations agent), and Mnjikaning First Nation. Subsequently, Casino Rama

opened its doors to the public in the summer of 1996. Meanwhile, the province and

representatives of the Chiefs of Ontario had begun a process of negotiating the terms for

distributing the casino's proceeds ("First Nations Fund") to the First Nations communities.

In the spring of 1996, the province informed the appellant aboriginal communities

that the First Nations Fund was to be distributed only to Ontario First Nations

communities registered as bands under the Indian Act, R.S.C., 1985, c. I-5.

2

The following is a brief summary of what this appeal decides and what it does not

decide.

Page 113

3

In basic terms, this appeal requires a determination of the constitutionality of the

exclusion of non-band aboriginal communities from sharing in the proceeds, and from

negotiating the distribution terms for the First Nations Fund. Specifically, the question is

whether the First Nations Fund's underinclusiveness violates the appellants' equality

rights as guaranteed by s. 15 of the Canadian Charter of Rights and Freedoms. We

must also determine whether the province's decision to exclude the appellants on the basis

that they are not bands under the Indian Act was ultra vires its jurisdiction under

the Constitution Act, 1867.

4

At the outset, I wish to note that this appeal has raised collateral issues which are

of great importance; among them are the constitutionality of the Indian Act and the

scope of the federal jurisdiction with respect to Métis and non-registered First Nation

peoples pursuant to s. 91(24) of the Constitution Act, 1867. Although the substantive

equality analysis obliges the Court to consider the circumstances of these appellant

aboriginal communities, including the social realities relating to their exclusion from, or

non-participation in, the Indian Act regime, these important collateral issues are not

properly raised in this appeal and, therefore, cannot be decided herein. Similarly, it is

neither necessary nor appropriate for this Court to decide or comment upon the

responsibilities of provincial governments with respect to these matters.

5

This appeal also raises the question of the proper interpretation of s. 15(2) of

the Charter. Indeed, the decision of the Ontario Court of Appeal below was based on the

application of s. 15(2). However, the Court of Appeal's interpretation of s. 15(2) was

decided without the benefit of this Court's decision in Law v. Canada (Minister of

Employment & Immigration), [1999] 1 S.C.R. 497 (S.C.C.), which synthesized a number

of approaches in the equality jurisprudence of the Court and provided a set of guidelines

for the analysis of a discrimination claim under the Charter. After a brief review of

the Law analytical framework and a consideration of s. 15(2), I conclude that this appeal is

properly decided on the basis of the existing s. 15(1) substantive equality framework.

6

With respect to s. 15(1), in my view the exclusion of the non-band aboriginal

communities from the First Nations Fund does not violate s. 15 of the Charter. I reach

this conclusion despite a recognition that, regrettably, the appellant and respondent

aboriginal communities have overlapping and largely shared histories of

discrimination, poverty, and systemic disadvantage that cry out for improvement.

7

In my opinion, a contextual analysis reveals an almost precise correspondence

between the casino project and the needs and circumstances of the First Nations bands. The

casino project was undertaken by the province of Ontario in order to further develop a

partnership or a "government-to-government" relationship with Ontario's First Nations

band communities. It is a project that is aimed at supporting the journey of these

aboriginal groups towards empowerment, dignity, and self-reliance. It is not,

however, designed to meet similar needs in the appellant aboriginal communities, but

its failure to do so does not amount to discrimination under s. 15.

Page 114

8

Finally, I conclude that the province did not act ultra vires in partnering the casino

initiative with Indian Act registered aboriginal communities. The exclusion of non-

registered aboriginal communities did not act to define or impair the "Indianness" of the

appellants since the province simply exercised its constitutional spending power in making

the casino arrangements.

…

9

There is no dispute as to the appellants' aboriginality or their self-identification

as either Métis or First Nations. None of the appellants has claimed an aboriginal

right to the First Nations Fund or access to the negotiation process pursuant to s.

35(1) of the Constitution Act, 1982. The seven appellant groups are divided into two

groups: (1) the Lovelace non-band First Nations appellants and (ii) the Be-Wab-Bon

Métis appellants. The Lovelace appellants comprise five non-band First Nations

communities: the Ardoch Algonquin First Nation and Allies ("Ardoch First Nation"), the

Kawartha Nishnawbe First Nation ("Kawartha"), the Beaverhouse First Nation, the Poplar

Point Ojibway First Nation ("Poplar Point"), and the Bonnechere Métis Association. The

two Be-Wab-Bon Métis appellants are: the Ontario Métis Aboriginal Association

("OMAA"), and the Be-Wab-Bon Métis and Non-Status Indian Association ("Be-Wab-

Bon"). Essentially, this appellant sub-group identifies itself as rural Métis peoples

even though their membership includes non-status or off-reserve First Nations

members.

10 Although the two appellant groups are primarily distinguished as being either

First Nations or Métis, each of the seven appellant groups has its own unique history,

culture, political goals, and relations with government. Indeed, this is a case which

immediately invokes a deep appreciation for the diversity of Canada's aboriginal

population (see R. v. Vanderpeet, [1996] 2 S.C.R. 507 (S.C.C.), at para. 67). Given this

complexity, it is neither possible nor desirable to draw bright lines between or among

any of the aboriginal communities involved in these proceedings, especially given the

limits of the litigation record in the appeal. With those qualifications in mind, the

following represents my attempt to describe the appellants and respondents for purposes of

deciding the issues arising in this appeal.

…

V. Issues

50 By order of Lamer C.J. dated November 25, 1998, the following constitutional

questions were stated for this Court's consideration:

1. Does the exclusion of the appellant aboriginal groups from the First Nations

Fund, and from the negotiations on the establishment and operation of the

Fund, set up pursuant to s. 15(1) of the Ontario Casino Corporation Act, 1993,

Page 115

S.O. 1993 c. 25, on the grounds that they are not aboriginal groups

registered as Indian Act bands under the Indian Act, R.S.C., 1985, c. I-5,

violate s. 15 of the Canadian Charter of Rights and Freedoms?

2. If the answer to question No. 1 is yes, is the violation demonstrably justified

under s. 1 of the Canadian Charter of Rights and Freedoms?

3. Is the exclusion of the appellant aboriginal groups from the First Nations

Fund of the Casino Rama Project, and from the negotiations on the

establishment and operation of the Fund on the grounds that they are not

aboriginal groups registered as Indian Act bands under the Indian Act, R.S.C.,

1985, c. I-5, ultra vires the power of the province under the Constitution Act,

1867?

…

64… Accordingly, having considered the submissions of the parties, and finding that the

whole context of the circumstances warrants a refinement in the identification of the

comparator group, I find that the s.15(1) inquiry must proceed on the basis of

comparing band and non-band aboriginal communities.

…

85… In other words, we are dealing here with a targeted ameliorative program which

is alleged to be underinclusive, rather than a more comprehensive ameliorative

program alleged to be underinclusive.

…

108

In summary, at this stage of the jurisprudence I see s. 15(2) as confirmatory of s.

15(1) and, in that respect, claimants arguing equality claims in the future should first

be directed to s. 15(1) since that subsection can embrace ameliorative programs of the

kind that are contemplated by s. 15(2). By doing that one can ensure that the program is

subject to the full scrutiny of the discrimination analysis, as well as the possibility of a s.

1 review. However, as already stated, we may well wish to reconsider this matter at a

future time in the context of another case.

…

113

I would answer the constitutional questions as follows:

Question 1: Does the exclusion of the appellant aboriginal groups from the First

Nations Fund, and from the negotiations on the establishment and operation of the

Fund, set up pursuant to s. 15(1) of the Ontario Casino Corporation Act, 1993, S.O.

1993, c. 25, on the grounds that they are not aboriginal groups registered as Indian

Page 116

Act bands under the Indian Act, R.S.C., 1985, c. I-5, violate s. 15 of the Canadian

Charter of Rights and Freedoms?

Answer: No.

Question 2: If the answer to question No. 1 is yes, is the violation demonstrably justified

under s. 1 of the Canadian Charter of Rights and Freedoms?

Answer: In view of the answer to Question 1, it is not necessary to answer this question.

Question 3: Is the exclusion of the appellant aboriginal groups from the First Nations Fund

of the Casino Rama Project, and from the negotiations on the establishment and operation

of the Fund on the grounds that they are not aboriginal groups registered as Indian

Act bands under the Indian Act, R.S.C., 1985, c. I-5, ultra vires the power of the province

under the Constitution Act, 1867?

Answer: No.

[My bolding added]

[173] I conclude that consistent with the pleadings, there is some evidence that the

proposed common section 15 Charter issues presented are true common issues

under the relevant legal principles.⁶¹

[174] There is also some evidence that the court has a basis for granting the

proposed relief to the Plaintiffs and this is a true common issue. Such relief could

include declaratory relief and damages. It is premature to be more specific than

this.

3-Is a class proceeding the preferable procedure?

[175] Section 7(1)(d) of the CPA requires the court to be satisfied that a “class

proceeding would be the preferable procedure for the fair and efficient resolution

of the dispute” and requires the court to consider:

(2) In determining whether a class proceeding would be the preferable procedure for the

fair and efficient resolution of the dispute, the court shall consider

⁶¹It should be recalled that section 15 of the Charter of Rights only became effective on April 17, 1985, three years

after the Canadian Charter of Rights and Freedoms itself became effective. Thus, the jurisprudence is still

developing in this intersecting area of the law – aboriginal rights in the context of section 15 of the Charter of

Rights.

Page 117

(a) whether questions of fact or law common to the class members predominate over

any questions affecting only individual members;

(b) whether a significant number of the class members have a valid interest in

individually controlling the prosecution of separate proceedings;

(c) whether the class proceeding would involve claims or defences that are or have

been the subject of any other proceedings;

(d) whether other means of resolving the claims are less practical or less efficient;

(e) whether the administration of the class proceeding would create greater

difficulties than those likely to be experienced if relief were sought by other

means; and

(f) any other matter the court considers relevant.

[176] In Nasogaluak v. Canada (Attorney General), 2021 FC 656, Justice

McVeigh was asked to certify a class action which asserted that aboriginal

members of the Class were discriminated against by Canada (i.e. the RCMP)

contrary to section 15 Charter. Therein, she stated:

114

Importantly, Rule 334.18(a) states that "A judge shall not refuse to certify a

proceeding as a class proceeding solely on one or more of the following grounds: (a) the

relief claimed includes a claim for damages that would require an individual assessment

after a determination of the common questions of law or fact". In this case, the Plaintiff is

not asking for individual assessments before the common questions are answered, but only

after the fact, to determine if individual class members satisfy the criteria for damages.

115 Canada declares that individual actions would be more appropriate; however,

in my opinion, that would negate the benefit of the three overarching purposes of the

class action: judicial economy, access to justice, and behaviour modification, if access to

justice of the litigants was frustrated. There is little doubt that Indigenous people in

Canada's Territories qualify as a vulnerable group. A class action is likely the only

way that these three principles will actually be realized.

116 Canada had relied on Dennis for the proposition that individual determination

will render a class action inappropriate. But a further review of that case shows the

Court finding that:

...[t]he determination of significant elements of the claims of individual class members

can be decided on a class-wide basis, and individual issues relating to issues such as

causation and damages can be dealt with later on an individual basis, especially when

the assessment of damages can be accomplished by application of a simple formula.

Page 118

(Dennis at para 53)

117 In the instant case, the determination being asked for by the Plaintiff could be

decided on a class-wide basis, and the individual situation of each class member could be

decided after.⁶²

[ My italicization added]

[177] While her comments were made based on a Rule of the Federal Court, the

underlying substance thereof remains persuasive. In Dennis that court was

speaking of the Ontario Class Proceedings Act, and therein they addressed the

problem identified by Ontario Lottery as follows:

20 The CPA governs class proceedings in Ontario. The provisions relevant to this

appeal are:

(1) The court shall certify a class proceeding on a motion under section 2, 3 or 4 if,

(a) the pleadings or the notice of application discloses a cause of action;

(b) there is an identifiable class of two or more persons that would be

represented by the representative plaintiff or defendant;

(c) the claims or defences of the class members raise common issues;

(d) a class proceeding would be the preferable procedure for the resolution of

the common issues; and

(e) there is a representative plaintiff or defendant who,

(i)

would fairly and adequately represent the interests of the class,

(ii)

has produced a plan for the proceeding that sets out a workable

method of advancing the proceeding on behalf of the class and of

notifying class members of the proceeding, and

(iii)

does not have on the common issues for the class, an interest in

conflict with the interests of other class members.

21 The motion judge concluded that the proposed class action did disclose a cause of

action but failed to satisfy all other criteria required for certification. The central and fatal

problem identified by the motion judge was that, at their core, all the claims rested on the

proposition that each Class A Member is a vulnerable, pathological problem gambler.

That is something that can only be determined on an individual, case-by-case basis and it

follows that the claim was not one that could be certified.

⁶²Dennis v. Ontario Lottery and Gaming Corp., 2013 ONCA 501 leave denied: February 13, 2014 [2013] S.C.C.A.

No. 373.

Page 119

…

27 The motion judge found that, in respect of the Class A Members, the proposed class

definition employs objective criteria but fails to meet the requirements of s.

5(1)(b) because it is over-inclusive as it cannot be assumed that everyone who signed the

form is a vulnerable pathological gambler.

28 The motion judge also found that there is an absence of a rational connection

between the class definition and the proposed common issues. The motion judge

concluded, at para. 189, that:

1. the claims advanced on behalf of the class members are predicated, and

dependent, on their vulnerability;

2. vulnerability is not a condition of class membership. As defined, and, in

consequence, causes of action that are addressed by the proposed common issues

are not confined to compulsive gamblers;

3. the problem of over-inclusiveness of the class definition, and the consequential

individualistic nature of the proposed common issues, cannot be resolved by the

use of statistical evidence to characterize a percentage of the class members as

pathological problem gamblers; and

4. in consequence, the requirement of a class in section 5(1)(b) and of common

issues in section 5(1)(c) of the CPA are not satisfied and certification must be

denied.

(iv)

Common Issues — s. 5(1)(c)

29 The vulnerability of each individual Class A Member is essential to the validity of

their claims. While it can be presumed that most self-excluded patrons were at least

apprehensive about their vulnerability, the degree of their addiction, if any, and the

significance to be attributed to the concept of personal autonomy could only be determined

on an individual basis.

30 The motion judge rejected the contention that the problem of the heterogeneity of the

proposed class could be overcome by statistical evidence indicating that approximately 87

per cent of self-excluded individuals would likely be pathological gamblers. The motion

judge explained, at paras. 211-12, that OLG's liability could not "be determined on the

basis of statistical probability" as the CPA is a procedural statute that "does not abrogate

the requirement that a defendant can be found liable only to those persons who can prove

their claims."

31 In the motion judge's view, liability could only be established by an inquiry into the

personal circumstances of each class member at particular times, their gambling history,

the extent of their addiction or compulsion to gamble, and their likely behaviour if OLG

had exercised its best efforts or reasonable care.

Page 120

…

34 The motion judge summarized his discussion of the common issues

requirement, at paras. 192 and 231:

If Mr. Dennis, or any of the other class members, had advanced the same claims in

individual actions, [OLG] would have been entitled to raise issues relating to

personal autonomy and degrees of vulnerability in connection with elements of

liability such as reasonable foresight of harm; proximity; unconscionability; a willing

assumption of risk for the purposes of section 4(1) of the OLA; causation of proven

losses; contributory negligence; and punitive damages. The right of [OLG] to pursue

such issues on an individual basis is not, in my opinion, excluded by pursuing the

claims under the procedure of the CPA and defining the class, and the common

issues, without reference to the vulnerability of the class members. Nor, for the

reasons I will give, can the issues be resolved by reference to statistical probabilities.

. . . . .

For the reasons given, I am of the opinion that the attempt to define the common

issues in a manner that would avoid an inquiry into the status of each class member

as a "problem gambler" has not been successful. I am satisfied that a proceeding

that requires a consideration of the nature, degree and consequences of each

class member's gambling propensities is individualistic to an extent that it is not

amenable to resolution under the procedure of the CPA. The common issues

would have to be so truncated that their resolution would not sufficiently advance the

claims of the class members. They would, for the most part, be limited to the

interpretation of the forms and the adequacy of [OLG]'s efforts to enforce self-

exclusion.

…

(3) Divisional Court

…

43 The dissenting judge rejected the proposition that vulnerability as a problem gambler

had to be proved on an individual basis. OLG was well aware of the issue of problem

gambling and the self-exclusion program was designed to address that issue. By signing

the self-exclusion form, Dennis and class members provided "some basis in fact" to meet

the test of commonality. The statistical evidence was admissible and simply bolstered the

other available evidence establishing some basis in fact for the common issues.

…

49 Before turning to an item-by-item consideration of the specific requirements for

certification under s. 5 of the CPA, I will set out what I consider to be the central issue

that arises on this appeal: is this a case in which the need for individualized inquiry is

Page 121

so pervasive that it overwhelms the appellants' attempt to treat it as a case of systemic

wrong?

…

53 There are certainly cases in which a class action will be an appropriate

procedure to deal with a "systemic wrong", a wrong that is said to have caused

widespread harm to a large number of individuals. When a systemic wrong causes

harm to an undifferentiated class of individuals, it can be entirely proper to use a

class proceeding that focuses on the alleged wrong. The determination of significant

elements of the claims of individual class members can be decided on a class-wide

basis, and individual issues relating to issues such as causation and damages can be

dealt with later on an individual basis, especially when the assessment of damages can

be accomplished by application of a simple formula.

54 The case law offers many examples in which a class action has provided an

appropriate procedural tool to resolve claims when all class members are exposed to

the same risk on account of the defendant's conduct. These include claims arising from:

• overtime policies that impose more restrictive conditions for overtime

compensation than permitted by statute (Fulawka v. Bank of Nova Scotia, 2012

ONCA 443, 111 O.R. (3d) 346 (Ont. C.A.); Fresco v. Canadian Imperial Bank of

Commerce, 2012 ONCA 444, 111 O.R. (3d) 501 (Ont. C.A.));

• defective products (Lambert v. Guidant Corp. (2009), 72 C.P.C. (6th) 120 (Ont.

S.C.J.);

• illegal or unauthorized charges to credit card customers (Markson v. MBNA Canada

Bank, 2007 ONCA 334, 85 O.R. (3d) 321 (Ont. C.A.); Cassano v. Toronto Dominion

Bank, 2007 ONCA 781, 87 O.R. (3d) 401 (Ont. C.A.));

or

• the operation of a school designed to create an atmosphere of fear, intimidation and

brutality (Cloud v. Canada (Attorney General) (2004), 73 O.R. (3d) 401 (Ont. C.A.)).

In these cases, liability essentially turns on the unilateral actions of the defendant, is

not dependent to any significant degree on the individual circumstances of class

members, and the only remaining issues requiring individualized determination are

whether and to what degree that conduct harmed the class members.

55 The claim at issue here does not fit that category.

[My bolding and italicization added]

Page 122

[178] The Province suggests it is preferable to deal with these issues as a

representative action, or even by way of a test case, where one of the Plaintiffs

hunts without authorization, and relies upon the claimed section 35 right to do so,

with a consequent summary conviction provincial offence trial to determine the

matter.

[179] Regarding the latter approach, I note what Justices Lebel and Fish stated in

Marshall, 2005 SCC 43 at paras. 142 – 144:

IV. Summary Conviction Proceedings

142 Although many of the aboriginal rights cases that have made their way to this Court

began by way of summary conviction proceedings, it is clear to me that we should re-think

the appropriateness of litigating aboriginal treaty, rights and title issues in the context of

criminal trials. The issues that are determined in the context of these cases have little to do

with the criminality of the accused's conduct; rather, the claims would properly be the

subject of civil actions for declarations. Procedural and evidentiary difficulties inherent in

adjudicating aboriginal claims arise not only out of the rules of evidence, the interpretation

of evidence and the impact of the relevant evidentiary burdens, but also out of the scope of

appellate review of the trial judge's findings of fact. These claims may also impact on the

competing rights and interests of a number of parties who may have a right to be heard at

all stages of the process. In addition, special difficulties come up when dealing with broad

title and treaty rights claims that involve geographic areas extending beyond the specific

sites relating to the criminal charges.

143 There is little doubt that the legal issues to be determined in the context of

aboriginal rights claims are much larger than the criminal charge itself and that the

criminal process is inadequate and inappropriate for dealing with such claims. I note that in

the New Brunswick Court of Appeal, Robertson J.A. raised a number of concerns to

support his view that summary conviction proceedings are not conducive to adjudicating

fairly on claims of aboriginal title: R. v. Bernard (2003), 262 N.B.R. (2d) 1, 2003 NBCA

55 (N.B. C.A.), at paras. 450-60. See also Daigle J.A.'s reasons, at para. 210.

144 The question of aboriginal title and access to resources in New Brunswick and

Nova Scotia is a complex issue that is of great importance to all the residents and

communities of the provinces. The determination of these issues deserves careful

consideration, and all interested parties should have the opportunity to participate in any

litigation or negotiations. Accordingly, when issues of aboriginal title or other aboriginal

rights claims arise in the context of summary conviction proceedings, it may be most

beneficial to all concerned to seek a temporary stay of the charges so that the aboriginal

claim can be properly litigated in the civil courts. Once the aboriginal rights claim to the

area in question is settled, the Crown could decide whether or not to proceed with the

criminal charges.

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[180] Regarding the notion of a “representative action” instead, CPR 68.08 reads:

68.08 Simple representative proceeding

(1) A judge who is satisfied on all of the following may appoint a member of an

organization to start a proceeding as plaintiff or applicant on behalf of all members of the

organization:

(a) the organization is not incorporated and cannot otherwise assert a right in court;

(b) the members of the organization are identified;

(c) all members agree with the appointment, or the appointment is in the interest of

the members as a whole;

(d) members have been given sufficient notice of the application for the appointment;

(e) the claim to be made is not appropriate to the expense or complexity of

procedures under the Class Proceedings Act;

(f) it would not be in the interests of justice to require members to proceed

individually.

(2) A party, an interested person who is not a party, the prothonotary, or a judge on the

judge’s own motion, may make a motion to appoint a representative in an action or

application that meets the criteria in Rule 68.08(1) but was started without an appointment.

(3) An order made in a representative proceeding binds all members who are given notice

of the application, or of the motion, for the appointment of a representative.

[181] Section 2(m) of the CPA defines a “representative plaintiff” as:

means a person who is appointed under this Act as the representative plaintiff for a class or

subclass in respect of a class proceeding and, where the context requires, includes a person

who is seeking to be appointed as a representative plaintiff;

[182] Section 4(3) of the CPA states:

“The person who commences a proceeding under subsection (1) shall make an application

to the court for an order certifying the proceeding as a class proceeding and, subject to

subsection (5), appointing the person as representative plaintiff for the class.”

[183] As I understand the Province’s argument, it suggests that a class proceeding

is not the preferable procedure because the process is too unmanageable. There are

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numerous treaties invoked, and each named Plaintiff separately represents the sub-

Class relying upon those treaties.

[184] Similarly, as in the case of treaties, in relation to the Plaintiffs’ aboriginal

right-based claim to hunt and harvest the sustainable resources of the Province, the

jurisprudence suggests such rights accrue only to a community, not individuals per

se. The only community representative put forward by the Plaintiffs is the Native

Council of Nova Scotia. But how can the Province consult with the NCNS, which

is a voluntary association with differing degrees of membership, (full and associate

memberships, only the former of which would make one eligible for an ATRA

Passport)? Arguably, the Province did just that, before and during the 30 years

between 1989 and 2018.

[185] The Province also points out that the mandatory section 19(1)(a) CPA opt-

out provision’s inclusion in a certification order creates a risk that individuals or

other groups of individuals may litigate these matters separately, resulting in

different and inconsistent outcomes.⁶³

[186] Therefore, the Province suggests that a “test case” may be a better approach

(where no opting-out provision prevails): see for example Horse Lake Nation v. R,

2015 FC 1149 at paras. 75-82.

[187] However, notably in the Horse Lake Nation case, the representative plaintiff

was well situated to represent all the members – he was the Chief of the Horse

Lake First Nation, which is a successor to the Beaver Indians of Dunvegan, one of

the signatories to Treaty 8, and he himself was entitled to receive an annuity

payment under the terms of that Treaty.

[188] The case at Bar presents a complex factual scenario that does not easily fit

into the existing jurisprudence.

[189] The nominal Class consists of approximately 387 persons (less those of the

131 Indians who are Status Indians associated with Indian Act bands, who are

therefore not on the “Atlantic General List”).

⁶³I bear in mind that leave of the court is required to opt out if such individuals do not adhere to the parameters that

permit opting out after notice is given to the class members.

Page 125

[190] I am satisfied it is highly unlikely that individuals from the Class would

press these arguments using other legal avenues on their own behalf.⁶⁴

[191] Although some might conceivably consider proceeding to hunt/harvest

without authorization and then run the risk of being subjected to a summary

conviction prosecution under provincial legislation, those proceedings have been

discouraged by the Supreme Court of Canada as a means of asserting aboriginal

rights.

[192] Even if one member of a sub-Class was successful on their specific facts

(after appeals), that potentially still leaves the members of the other sub-Classes at

risk of not having clear answers to their claims.

[193] The issues here are also systemic in nature, including the section 15 Charter

claim. These are pleaded as affecting all members of the Class similarly.

[194] I have considered carefully the factors listed in s. 7(2)(a) to (e) of the CPA. I

find that under section 7(2)(f) of the CPA [i.e. “any other matter the court

considers relevant”] a significant factor is that a class action is uniquely consistent

with the purpose and principles of “reconciliation”. As the Commissioners of the

Truth and Reconciliation Commission of Canada put it in Volume 1(Introduction)

of their Final Report [James Lorimer and Co. Ltd., Toronto, Ontario, Canada,

2015]:

Reconciliation is about establishing and maintaining a mutually respectful relationship

between Aboriginal and non-Aboriginal peoples”.

[195] There is no ideal procedure available.

[196] A healthy measure of flexibility, to the extent that it can be justified as

consistent with the spirit and purpose of the CPA, is necessary to permit the

Plaintiffs to have the opportunity to put forward their case.

[197] It makes the most sense to consolidate in one proceeding these various

Plaintiffs’ bases underlying their section 35 rights entitlement and section 15

Charter arguments.⁶⁵

⁶⁴See Roger Hunka’s affidavit at para.18; and Justice Cromwell statements on “access to justice” in Fischer v. IG

Investment Management Ltd., 2013 SCC 69 at paras. 24 - 34.

⁶⁵I also rely on s. 10 of the CPA – “certain matters not bar to certification”, in coming to the conclusion that

certification is appropriate.

Page 126

[198] Historical analysis of the claimed treaty rights in the case at Bar will likely

require a canvas of the time intervals from before the Treaty of 1725 up until at

least after the Treaty of 1760 – 61. Careful examination and considered findings

across these time intervals will permit a more comprehensive factual record and

legal conclusions regarding these many important issues.

[199] The Cape Breton sub-Class, while distinct in some respects, shares sufficient

similarities with the other Classes. As a result of the building-block aspect that

must be considered in a historical retrospective, all the treaty claims should be

heard by the same court, inter alia, to avoid inconsistent outcomes.

[200] I am keenly aware that only the class action proceeding is expressly

designed and intended to promote access to justice, judicial economy, and

behaviour modification.

[201] The Plaintiffs have satisfied me that a class proceeding is the preferable

procedure in this matter.⁶⁶

4-s. 7(1)(e ) CPA - Is there a suitable representative party?

i)

Would the proposed representative parties fairly and adequately represent

the interests of the Class(es)?

[202] I have reviewed their sworn affidavits - they were not cross-examined

thereon. I accept their testimony. There is some evidence that it is appropriate to

have these four proposed Plaintiffs’ representatives for the corresponding sub-

Classes, bearing in mind the purposes and relevant law regarding our Class

Proceedings Act.

ii)

Have the proposed representative parties produced a plan for the Class

proceeding that sets out a workable method of advancing the Class

⁶⁶The Province argued alternatively that the Plaintiffs could avail themselves of the (“This is Who We Are”)

initiative suggested to have been recently developed by the Assembly of First Nations and Grand Council and

associated Indian Act bands in Nova Scotia, as described in the February 18, 2021, Silliker affidavit at Exhibit “C”

and referenced at paragraphs 171 - 72 and 189 of the Attorney General’s brief. In relation to this suggested process,

with all due respect, it is for the Plaintiffs to propose their preferred process. Moreover, I am not satisfied I have

sufficient evidence to confidently come to any conclusion about the suggested validity, reliability and

appropriateness of its application to individuals within the proposed Class and sub-Classes. The Plaintiffs’ counsel

voiced their clients’ resolute opposition thereto on bona fide grounds.

Page 127

proceeding on behalf of the Class(es) and of notifying Class members of

the Class proceeding?

[203] Attached as Schedule “B” to the Notice of Motion is the Plaintiffs’

Litigation Plan.⁶⁷

[204] Notably, at paragraph 26, the Plaintiffs have provided for an ongoing review

of the Litigation Plan:

“This Litigation Plan may be reconsidered and revised under the continuing case-

management authority of this Court after the determination of the common issues or

application by the Parties.”

[205] I am satisfied that this is a workable method of advancing the class

proceeding on behalf of the Class and notifying the Class members of the class

proceeding. I am also satisfied that Plaintiffs’ Counsels are able and prepared to

represent the interests of the Plaintiffs/Class herein.

iii)

Have the proposed representative parties, with respect to the common

issues, an interest that is in conflict with the interests of other Class

members?

[206] I am not satisfied that there is a basis to conclude that the Plaintiffs’

membership in the NCNS is a source of a conflict of interest which should

preclude any of the proposed representative Plaintiffs from carrying out their

responsibilities under the CPA.

[207] Moreover, I am satisfied that each of the proposed representative parties are

not in conflict with the interests of the remaining members of the Class with

respect to the common issues.

CONCLUSION

[208] I am satisfied that: the pleadings disclose reasonable causes of action in

relation to each of the causes of action pleaded; and that there is some evidence in

relation to the satisfaction of each of the other prerequisites in section 7 of the

CPA.

⁶⁷Attached hereto as Appendix “F”.

Page 128

[209] Therefore, I am required to certify the proceeding as a class proceeding. I am

satisfied to do so as it is presently constituted, subject to my reasons herein to the

contrary.⁶⁸

[210] I will sign the necessary order to certify the class proceedings.

[211] I direct the Plaintiff’s counsel to prepare the Order, and forward it to the

counsel for the Attorney General for consent as to form. I also direct the Plaintiffs’

counsel, within 15 calendar days of the issuance of the Order, to forward a certified

copy of the Order to counsel for the Attorney General of Canada.

Rosinski, J.

⁶⁸As amended by the Motion filed July 2, 2021; and based on the March 22, 2021 filed amended Notice of Action,

but excluding from the Class any persons who are Status Indians and also Indian Act Band members (see para. 60 of

the Amended Statement of Claim), and any reference regarding a section 15 Charter breach to the extent that it

purports to rely on “race” as the basis therefor.

Page 129

SUPREME COURT OF NOVA SCOTIA

Citation: Joyce et al v. Nova Scotia (Attorney General), 2022 NSSC 22

Date: 20220127

Docket: Hfx No. 490119

Registry: Halifax

Between:

Stephen Joyce, Robert Cooper, E. Dianne Langley, Kenneth Langille

Plaintiffs

v.

The Attorney General of Nova Scotia, representing Her Majesty the Queen, in

right of the Province of Nova Scotia

Defendant

ERRATUM dated March 15, 2022

The Honourable Justice Peter Rosinski

Judge:

Heard:

June 4, 22 and 23, 2021, in Halifax, Nova Scotia

Andrew Lokan, Glynnis Hawe, and Robert Pineo, for the

Plaintiffs

Counsel:

Sean Foreman, Q.C. and Jeremy Smith, for the Defendant

Erratum

In paragraph 107, the name of the case Sundown v. Canada has been changed to

Southwind v. Canada.