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