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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
20 The 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”.