SUPREME
COURT OF CANADA
Citation: Daniels v. Canada (Indian Affairs and Northern
Development), 2016 SCC 12, [2016] 1 S.C.R. 99
|
Appeal
heard: October 8, 2015
Judgment
rendered: April 14, 2016
Docket: 35945
|
Between:
Harry
Daniels, Gabriel Daniels, Leah Gardner,
Terry
Joudrey and Congress of Aboriginal Peoples
Appellants/Respondents
on cross-appeal
and
Her
Majesty The Queen as represented by the
Minister
of Indian Affairs and Northern Development and
Attorney
General of Canada
Respondents/Appellants
on cross-appeal
- and -
Attorney
General for Saskatchewan, Attorney General of Alberta,
Native
Council of Nova Scotia, New Brunswick Aboriginal Peoples Council,
Native
Council of Prince Edward Island, Metis Settlements General Council,
Te’mexw
Treaty Association, Métis Federation of Canada,
Aseniwuche
Winewak Nation of Canada, Chiefs of Ontario,
Gift
Lake Métis Settlement, Native Alliance of Quebec,
Assembly
of First Nations and Métis National Council
Interveners
Coram: McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis,
Wagner, Gascon, Côté and Brown JJ.
Reasons
for Judgment:
(paras. 1 to 58)
|
Abella J. (McLachlin C.J. and Cromwell,
Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown JJ. concurring)
|
Daniels v. Canada (Indian Affairs and Northern Development), 2016 SCC 12,
Harry Daniels, Gabriel Daniels,
Leah Gardner, Terry Joudrey and
Congress of Aboriginal Peoples Appellants/Respondents
on cross‑appeal
v.
Her Majesty The Queen
as represented by the
Minister of Indian Affairs and
Northern Development and
Attorney General of Canada Respondents/Appellants
on cross‑appeal
and
Attorney General for Saskatchewan,
Attorney General of Alberta,
Native Council of Nova Scotia,
New Brunswick Aboriginal Peoples
Council,
Native Council of Prince Edward Island,
Metis Settlements General Council,
Te’mexw Treaty Association,
Métis Federation of Canada,
Aseniwuche Winewak Nation of Canada,
Chiefs of Ontario,
Gift Lake Métis Settlement,
Native Alliance of Quebec,
Assembly of First Nations and
Métis National Council Interveners
Indexed as: Daniels v.
Canada (Indian Affairs and Northern Development)
2016 SCC 12
File No.: 35945.
2015: October 8; 2016: April 14.
Present: McLachlin C.J. and Abella, Cromwell, Moldaver,
Karakatsanis, Wagner, Gascon, Côté and Brown JJ.
on appeal from the federal court of appeal
Constitutional
law — Aboriginal law — Métis — Non‑status Indians — Whether declaration
should be issued that Métis and non‑status Indians are “Indians” under
s. 91(24) of Constitution Act, 1867 — Whether declaration would have
practical utility — Whether, for purposes of s. 91(24) , Métis should be
restricted to definitional criteria set out in R. v. Powley, [2003] 2 S.C.R.
207 — Constitution Act, 1867, s. 91(24) — Constitution Act, 1982,
s. 35 .
Three
declarations are sought in this case: (1) that Métis and non‑status
Indians are “Indians” under s. 91(24) of the Constitution Act, 1867 ;
(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.
The
trial judge’s conclusion was that “Indians” under s. 91(24) is a broad
term referring to all Indigenous peoples in Canada. He declined, however, to
grant the second and third declarations. The Federal Court of Appeal accepted
that “Indians” in s. 91(24) included all Indigenous peoples generally. It
upheld 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. It also declined to grant the second and
third declarations. The appellants sought to restore the first declaration as
granted by the trial judge, and asked that the second and third declarations be
granted. The Crown cross‑appealed, arguing that none of the declarations
should be granted. It conceded that non‑status Indians are “Indians”
under s. 91(24) .
Held: The first declaration should be granted: Métis
and non‑status Indians are “Indians” under s. 91(24) . The appeal
should therefore be allowed in part. The Federal Court of Appeal’s conclusion
that the first declaration should exclude non‑status Indians or apply
only to those Métis who meet the Powley criteria, should be set aside,
and the trial judge’s decision restored. The trial judge’s and Federal Court of
Appeal’s decision not to grant the second and third declarations should be
upheld. The cross‑appeal should be dismissed.
A
declaration can only be granted if it will have practical utility, that is, if
it will settle a “live controversy” between the parties. The first declaration,
whether non‑status Indians and Métis are “Indians” under s. 91(24) ,
would have enormous practical utility for these two groups who have found
themselves having to rely more on noblesse oblige than on what is obliged by
the Constitution. A declaration would guarantee both certainty and
accountability. Both federal and provincial governments have, alternately,
denied having legislative authority over non‑status Indians and
Métis. This results in these Indigenous communities being in a
jurisdictional wasteland with significant and obvious disadvantaging
consequences. While finding Métis and non‑status Indians to be “Indians”
under s. 91(24) does not create a duty to legislate, it has the undeniably
salutary benefit of ending a jurisdictional tug‑of‑war.
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. “Indians” has long
been used as a general term referring to all Indigenous peoples, including
mixed‑ancestry communities like the Métis. Before and after
Confederation, the government frequently classified Aboriginal peoples with
mixed European and Aboriginal heritage as Indians. Historically, the purpose of
s. 91(24) in relation to the broader goals of Confederation also indicates
that since 1867, “Indians” meant all Aboriginal peoples, including Métis.
As
well, the federal government has at times assumed that it could legislate over
Métis as “Indians”, and included them in other exercises of federal authority
over “Indians”, such as sending many Métis to Indian Residential Schools — a
historical wrong for which the federal government has since apologized.
Moreover, while it does not define the scope of s. 91(24) , s. 35 of
the Constitution Act, 1982 states that Indian, Inuit, and Métis peoples
are Aboriginal peoples for the purposes of the Constitution. This Court has
noted that ss. 35 and 91(24) should be read together. “Indians” in the
constitutional context, therefore, has two meanings: a broad meaning, as used
in s. 91(24) , that includes both Métis and Inuit and can be equated with
the term “aboriginal peoples of Canada” used in s. 35 , and a narrower
meaning that distinguishes Indian bands from other Aboriginal peoples. It would
be constitutionally anomalous for the Métis to be the only Aboriginal people to
be recognized and included in s. 35 yet excluded from the constitutional
scope of s. 91(24) .
The
jurisprudence also supports the conclusion that Métis are “Indians” under
s. 91(24). It demonstrates that intermarriage and mixed‑ancestry do
not preclude groups from inclusion under s. 91(24). The fact that a group
is a distinct people with a unique identity and history whose members self‑identify
as separate from Indians, is not a bar to inclusion within s. 91(24).
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.
As
to whether, for purposes of s. 91(24), Métis should be restricted to the
three definitional criteria set out in Powley in accordance with the
decision of the Federal Court of Appeal, or whether the membership base should
be broader, there is no principled reason for presumptively and arbitrarily
excluding certain Métis from Parliament’s protective authority on the basis of
the third criterion, a “community acceptance” test. The criteria in Powley
were developed specifically for purposes of applying s. 35 , which is about
protecting historic community‑held rights. Section 91(24) serves a
very different constitutional purpose.
The
constitutional changes, the apologies for historic wrongs, a growing
appreciation that Aboriginal and non‑Aboriginal people are partners in
Confederation, as well as the Report of the Royal Commission on Aboriginal
Peoples and the Final Report of the Truth and Reconciliation Commission
of Canada, all indicate that reconciliation with all of Canada’s
Aboriginal peoples is Parliament’s goal.
The
historical, philosophical, and linguistic contexts establish that “Indians” in
s. 91(24) includes all Aboriginal peoples, including non‑status
Indians and Métis. The first declaration should accordingly be granted.
Federal
jurisdiction over Métis and non‑status Indians does not mean that all
provincial legislation pertaining to Métis and non‑status Indians is
inherently ultra vires. As this Court has recognized, courts should
favour, where possible, the operation of statutes enacted by both levels of
government.
Cases Cited
Distinguished:
R. v. Powley, 2003 SCC 43, [2003] 2 S.C.R. 207; R. v. Blais, 2003
SCC 44, [2003] 2 S.C.R. 236; considered: Reference as to whether “Indians” in s. 91(24) of the B.N.A.
Act includes Eskimo inhabitants of the Province of Quebec, [1939] S.C.R. 104; Attorney General of Canada v. Canard,
[1976] 1 S.C.R. 170; referred to: Canada (Prime Minister) v.
Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44; Solosky v. The Queen, [1980]
1 S.C.R. 821; Borowski v. Canada (Attorney General), [1989] 1 S.C.R.
342; Lovelace v. Ontario, 2000 SCC 37, [2000] 1 S.C.R. 950; Beckman
v. Little Salmon/Carmacks First Nation, 2010 SCC 53, [2010] 3 S.C.R. 103; R.
v. Sparrow, [1990] 1 S.C.R. 1075; Manitoba Metis Federation Inc. v.
Canada (Attorney General), 2013 SCC 14, [2013] 1 S.C.R. 623; Mikisew
Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69,
[2005] 3 S.C.R. 388; Lax Kw’alaams Indian Band v. Canada (Attorney General),
2011 SCC 56, [2011] 3 S.C.R. 535; Alberta (Aboriginal Affairs and Northern
Development) v. Cunningham, 2011 SCC 37, [2011] 2 S.C.R. 670; Reference
re Same‑Sex Marriage, 2004 SCC 79, [2004] 3 S.C.R. 698; Canadian Western Bank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3; NIL/TU,O Child and Family Services Society v. B.C. Government and
Service Employees’ Union, 2010 SCC 45, [2010]
2 S.C.R. 696; Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010; Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511; Tsilhqot’in Nation v. British Columbia,
2014 SCC 44, [2014] 2 S.C.R. 257.
Statutes and Regulations Cited
Act further to amend “The Indian Act ”,
S.C. 1894, c. 32.
Act providing for the organisation of the Department of the
Secretary of State of Canada, and for the management of Indian and Ordnance
Lands, S.C. 1868, c. 42.
Act to amend the Indian Act, S.C. 1958,
c. 19.
Canadian
Bill of Rights, S.C. 1960, c. 44 .
Canadian Charter of Rights and Freedoms,
s. 15 .
Constitution Act, 1867, s. 91(24) .
Constitution Act, 1982, ss. 35 , 37 ,
37.1 .
Game
and Fish Act, R.S.O. 1990, c. G.1.
Indian
Act, R.S.C. 1970, c. I‑6, s. 43.
Indian Act, R.S.C. 1985, c. I‑5 .
Indian Act, 1876, S.C. 1876, c. 18.
Manitoba
Act, 1870, S.C. 1870, c. 3 (reprinted in R.S.C. 1985, App. II,
No. 8).
Metis
Settlements Act, R.S.A. 2000, c. M‑14.
Authors Cited
Bell, Catherine. “Who Are The Metis People in Section 35(2)?”
(1991), 29 Alta. L. Rev. 351.
Borrows, John. Canada’s Indigenous Constitution. Toronto:
University of Toronto Press, 2010.
Canada. Commission to Inquire into the Matters of Membership in the
Indian Bands in Lesser Slave Lake Agency. Report of Mr. Justice W.A.
Macdonald Following an Enquiry Directed Under Section 18 of the Indian Act,
August 7, 1944 (online:
http://epe.lac-bac.gc.ca/100/200/301/pco-bcp/commissions-ef/macdonald1947-eng/macdonald1947-eng.htm).
Canada. Department of Indian Affairs and Northern Development,
Intergovernmental Affairs, Corporate Policy. Natives and the Constitution —
Background and Discussion Paper. August 1980.
Canada. Royal Commission on Aboriginal Peoples. Report of the
Royal Commission on Aboriginal Peoples, vol. 2, Restructuring the
Relationship. Ottawa: The Commission, 1996.
Canada. Royal Commission on Aboriginal Peoples. Report of the
Royal Commission on Aboriginal Peoples, vol. 3, Gathering Strength.
Ottawa: The Commission, 1996.
Canada. Truth and Reconciliation Commission. Honouring the Truth,
Reconciling for the Future: Summary of the Final Report of the Truth and
Reconciliation Commission of Canada. Winnipeg: The Commission, 2015.
Canada. Truth and Reconciliation Commission. The Final Report of
the Truth and Reconciliation Commission of Canada, vol. 3, Canada’s
Residential Schools: The Métis Experience. Montréal: McGill‑Queen’s
University Press, 2015.
Chartier, Clem. “‘Indian’: An Analysis of the Term as Used in
Section 91(24) of the British North America Act, 1867” (1978‑79), 43 Sask.
L. Rev. 37.
Gaffney, R. E., G. P. Gould and A. J. Semple. Broken
Promises: The Aboriginal Constitutional Conferences. Fredericton: New
Brunswick Association of Metis and Non‑Status Indians, 1984.
Great Britain. House of Commons. Select Committee on the Hudson’s
Bay Company. Report from the Select Committee on the Hudson’s Bay Company;
Together with the Proceedings of the Committee, Minutes of Evidence, Appendix
and Index. London: HMSO, 1858.
Hogg, Peter W. Constitutional Law of Canada, 5th ed.
Supp. Toronto: Carswell, 2007 (updated 2015, release 1).
King,
Thomas. The Inconvenient Indian: A Curious Account of Native People in North
America. Toronto: Anchor Canada, 2013.
Lyon, Noel. “Constitutional Issues in Native Law”, in Bradford W.
Morse, ed., Aboriginal Peoples and the Law: Indian, Metis and Inuit Rights
in Canada, rev. 1st ed. Ottawa: Carleton University Press, 1989, 408.
Magnet, Joseph Eliot. “Who are the Aboriginal People of Canada?”, in
Dwight A. Dorey and Joseph Eliot Magnet, eds., Aboriginal Rights
Litigation. Markham, Ont.: LexisNexis Butterworths, 2003, 23.
Stevenson,
Mark. “Section 91(24) and Canada’s Legislative Jurisdiction with Respect
to the Métis” (2002), 1 Indigenous L.J. 237.
APPEAL
and CROSS‑APPEAL from a judgment of the Federal Court of Appeal (Noël,
Dawson and Trudel JJ.A.), 2014 FCA 101, [2014] 4 F.C.R. 97, 371 D.L.R.
(4th) 725, 457 N.R. 347, [2014] 3 C.N.L.R. 139, 309 C.R.R. (2d) 200, [2014]
F.C.J. No. 383 (QL), 2014 CarswellNat 1076 (WL Can.), setting aside in
part a decision of Phelan J., 2013 FC 6, [2013] 2 F.C.R. 268, 357 D.L.R. (4th)
47, 426 F.T.R. 1, [2013] 2 C.N.L.R. 61, [2013] F.C.J. No. 4 (QL), 2013
CarswellNat 8 (WL Can.). Appeal allowed in part and cross‑appeal
dismissed.
Joseph Eliot Magnet, Andrew K. Lokan and Lindsay Scott, for the appellants/respondents
on cross‑appeal.
Mark R. Kindrachuk, Q.C., Christopher M.
Rupar and Shauna K. Bedingfield, for the respondents/appellants
on cross‑appeal.
P. Mitch McAdam, Q.C., for the intervener the Attorney General for Saskatchewan.
Angela Edgington and Neil Dobson, for the intervener the
Attorney General of Alberta.
Written submissions only by D. Bruce Clarke, Q.C., for the
interveners the Native Council of Nova Scotia, the New Brunswick Aboriginal
Peoples Council and the Native Council of Prince Edward Island.
Garry Appelt and Keltie Lambert, for the intervener the Metis
Settlements General Council.
Written submissions only by Robert J. M. Janes and Elin R. S. Sigurdson, for the intervener the Te’mexw
Treaty Association.
Christopher G. Devlin, John Gailus and Cynthia Westaway, for the intervener the Métis
Federation of Canada.
Karey M. Brooks and Claire Truesdale, for the intervener the
Aseniwuche Winewak Nation of Canada.
Scott Robertson, for the intervener the Chiefs
of Ontario.
Paul Seaman and Maxime Faille, for the intervener the Gift
Lake Métis Settlement.
Marc Watters and Lina Beaulieu, for the intervener the Native
Alliance of Quebec.
Guy Régimbald and Jaimie Lickers, for the intervener the
Assembly of First Nations.
Jason T. Madden, Clément Chartier, Q.C., Kathy
Hodgson‑Smith and Marc
Leclair, for the intervener the Métis National Council.
The
judgment of the Court was delivered by
[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.
Background
[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 . . .
. . .
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. As 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. While it was of the view that 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
[11]
This Court most recently restated the applicable
test for when a declaration should be granted in Canada (Prime Minister) v.
Khadr, [2010] 1 S.C.R. 44. The party seeking relief must establish that the
court has jurisdiction to hear the issue, that the question is real and not
theoretical, and that the party raising the issue has a genuine interest in its
resolution. A declaration can only be granted if it will have practical
utility, that is, if it will settle a “live controversy” between the parties:
see also Solosky v. The Queen, [1980] 1 S.C.R. 821; Borowski v.
Canada (Attorney General), [1989] 1 S.C.R. 342.
[12]
The first disputed issue in this case is whether
the declarations would have practical utility. There can be no doubt, in my
respectful view, that granting the first declaration meets this threshold.
Delineating and assigning constitutional authority between the federal and
provincial governments will have enormous practical utility for these two
groups who have, until now, found themselves having to rely more on noblesse
oblige than on what is obliged by the Constitution.
[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 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] 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.)
[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”.
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.
[22]
The prevailing view is that Métis are “Indians”
under s. 91(24) . Prof. Hogg, for example, sees the word “Indians” under s.
91(24) as having a wide compass, likely including the Métis:
The Métis people, who originated
in the west from intermarriage between French Canadian men and Indian women
during the fur trade period, received “half-breed” land grants in lieu of any
right to live on reserves, and were accordingly excluded from the charter group
from whom Indian status devolved. However, they are probably “Indians” within
the meaning of s. 91(24) .
(Peter W. Hogg, Constitutional
Law of Canada (5th ed. Supp.), at p. 28-4)
See also Joseph Eliot Magnet, “Who
are the Aboriginal People of Canada?”, in Dwight A. Dorey and Joseph Eliot Magnet,
eds., Aboriginal Rights Litigation (2003), 23, at p. 44; Clem Chartier,
“‘Indian’: An Analysis of the Term as Used in Section 91(24) of the British
North America Act, 1867” (1978-79), 43 Sask. L. Rev. 37; Mark
Stevenson, “Section 91(24) and Canada’s Legislative Jurisdiction with Respect
to the Métis” (2002), 1 Indigenous L.J. 237;
Noel Lyon, “Constitutional Issues in Native Law”, in Bradford
W. Morse, ed., Aboriginal Peoples and the Law: Indian, Metis and Inuit
Rights in Canada (rev. 1st ed. 1989), 408, at p. 430.
[23]
In fact, “Indians” has long been used as a
general term referring to all Indigenous peoples, including mixed-ancestry
communities like the Métis. The term was created by European settlers and
applied to Canada’s Aboriginal peoples without making any distinction between
them. As author Thomas King explains in The Inconvenient Indian:
No one really believed that there was
only one Indian. No one ever said there was only one Indian. But as North
America began to experiment with its “Indian programs,” it did so with a “one
size fits all” mindset. Rather than see tribes as an arrangement of separate
nation states in the style of the Old World, North America imagined that
Indians were basically the same. [p. 83]
[24]
Before and after Confederation, the government
frequently classified Aboriginal peoples with mixed European and Aboriginal
heritage as Indians. Métis were considered “Indians” for pre-Confederation
treaties such as the Robinson Treaties of 1850. Many post-Confederation
statutes considered Métis to be “Indians”, including the 1868 statute
entitled An Act providing for the organisation of the Department of the
Secretary of State of Canada, and for the management of Indian and Ordnance
Lands, S.C. 1868, c. 42.
[25]
Historically, the purpose of s. 91(24) in
relation to the broader goals of Confederation also indicates that since 1867,
“Indians” meant all Aboriginal peoples, including Métis. The trial judge found
that expanding British North America across Rupert’s Land and the North-West
Territories was a major goal of Confederation and that building a national
railway was a key component of this plan. At the time, that land was occupied
by a large and diverse Aboriginal population, including many Métis. A good
relationship with all Aboriginal groups was required to realize the goal of
building “the railway and other measures which the federal government would
have to take.” With jurisdiction over Aboriginal peoples, the new federal
government could “protect the railway from attack” and ensure that they did not
resist settlement or interfere with construction of the railway. Only by having
authority over all Aboriginal peoples could the westward expansion of
the Dominion be facilitated.
[26]
The work of Prof. John Borrows supports this
theory:
The Métis Nation was . . . crucial in
ushering western and northern Canada into Confederation and in increasing the
wealth of the Canadian nation by opening up the prairies to agriculture and
settlement. These developments could not have occurred without Métis intercession
and legal presence.
(Canada’s Indigenous
Constitution (2010), at pp. 87-88)
In his view, it would have been
impossible for Canada to accomplish its expansionist agenda if “Indians” under
s. 91(24) did not include Métis. The threat they posed to Canada’s expansion
was real. On many occasions Métis “blocked surveyors from doing their work” and
“prevented Canada’s expansion into the region” when they were unhappy with the
Canadian government: Borrows, at p. 88.
[27]
In fact, contrary to its position in this case,
the federal government has at times assumed that it could legislate over Métis
as “Indians”. The 1876 Indian Act
banned the sale of intoxicating liquor to “Indians”. In 1893 the North-West
Mounted Police wrote to the federal government, expressing their difficulty in
distinguishing between “Half-breeds and Indians in prosecutions for giving
liquor to the latter”. To clarify this issue, the federal government amended
the Indian Act
in 1894 to broaden the ban on the sale of intoxicating liquor to Indians or any
person “who follows the Indian mode of life”, which included Métis.
[28]
In October 1899, Indian Affairs Minister
Clifford Sifton wrote a memorandum that would become the basis of the federal
government’s policy regarding Métis and Indian Residential Schools for decades.
He wrote that “I am decidedly of the opinion that all children, even those of
mixed blood . . . should be eligible for admission to the schools”: The Final
Report of the Truth and Reconciliation Commission of Canada, vol. 3, The
Métis Experience (2015), at p. 16. This policy was applied haphazardly.
Provincial public school systems were reluctant to admit Métis students, as the
provinces saw them as a federal responsibility: p. 26. Many Métis attended
Residential Schools because they were the only educational option open to them.
[29]
In some cases, the federal government directly
financed these projects. In the 1890s, the federal government provided funding
for a reserve and industrial school at Saint-Paul-des-Métis in Alberta, run by
Oblate missionaries: The Final Report of the Truth and Reconciliation in
Canada, vol. 3, at p. 16. The reserve consisted of two townships, owned by
the Crown, and included a school for teaching trades to the Métis. As long as
the project lasted, it functioned equivalently to similar reserves for Indian
peoples.
[30]
Many Métis were also sent to Indian Residential
Schools, another exercise of federal authority over “Indians”, as The Final
Report of the Truth and Reconciliation Commission of Canada documents.
According to the Report, “[t]he central goal of the Canadian residential school
system was to ‘Christianize’ and ‘civilize’ Aboriginal people . . . . In the
government’s vision, there was no place for the Métis Nation”: vol. 3, at p. 3.
The Report notes that
[t]he
existing records make it impossible to say how many Métis children attended
residential school. But they did attend almost every residential school
discussed in this report at some point. They would have undergone the same
experiences — the high death rates, limited diets, crowded and unsanitary
housing, harsh discipline, heavy workloads, neglect, and abuse . . . . [p. 4]
The federal government
has since acknowledged and apologized for wrongs such as Indian Residential
Schools.
[31]
Moreover, throughout the early twentieth
century, many Métis whose ancestors had taken scrip continued to live on Indian
reserves and to participate in Indian treaties. In 1944, a Commission of
Inquiry in Alberta was launched to investigate this issue, headed by Justice
William Macdonald. He concluded that the federal government had the
constitutional authority to allow these Métis to participate in treaties and
recommended that the federal government take steps to clarify the status of
these Métis with respect to treaties and reserves: Report of Mr. Justice
W.A. Macdonald Following an Enquiry Directed Under Section 18 of the Indian Act,
August 7, 1944 (online).
[32]
Justice Macdonald noted that the federal
government had been willing to recognize Métis as Indians whenever it was convenient
to do so:
It
would appear that whenever it became necessary or expedient to extinguish
Indian rights in any specific territory, the fact that Halfbreeds also had
rights by virtue of their Indian blood was invariably recognized. . . .
. . .
. . . mixed blood did not
necessarily establish white status, nor did it bar an individual from admission
into treaty. The welfare of the individual and his own desires in the matter
were given due weight, no cast-iron rule was adopted. [pp. 557-58]
In 1958, the federal government
amended the Indian Act ,
enacting Justice Macdonald’s recommendation that Métis who had been allotted
scrip but were already registered as Indians (and their descendants), remain
registered under the Indian Act , thereby clarifying their status with
respect to treaties and reserves. In so legislating, the federal government
appeared to assume that it had authority over Métis under s. 91(24).
[33]
Not only has the federal government legislated
over Métis as “Indians”, but it appears to have done so in the belief it was
acting within its constitutional authority. In 1980, the Department of Indian
Affairs and Northern Development wrote a document for Cabinet entitled Natives
and the Constitution. This document clearly expressed the federal government’s
confidence that it had constitutional authority to legislate over Métis under
s. 91(24) :
Métis
people . . . are presently in the same legal position as other Indians who
signed land cession treaties. Those Métis who have received scrip or lands are
excluded from the provisions of the Indian Act , but are still “Indians”
within the meaning of the BNA Act. . . .
. . .
Should a person possess
“sufficient” racial and social characteristics to be considered a “native
person”, that individual will be regarded as an “Indian” . . . within the
legislative jurisdiction of the federal government, regardless of the fact that
he or she may be excluded from the coverage of the Indian Act . [p. 43]
[34]
Moreover, while it does not define the scope of
s. 91(24) , it is worth noting that s. 35
of the Constitution Act, 1982 states that Indian, Inuit, and
Métis peoples are Aboriginal peoples for the purposes of the Constitution. This
Court recently explained that the “grand purpose” of s. 35 is “[t]he
reconciliation of Aboriginal and non-Aboriginal Canadians in a mutually
respectful long-term relationship”: Beckman v. Little Salmon/Carmacks First
Nation, [2010] 3 S.C.R. 103, at para. 10. And in R. v. Sparrow,
[1990] 1 S.C.R. 1075, this Court noted that ss. 35 and 91(24) should be read
together: p. 1109, cited in Manitoba Metis Federation Inc. v. Canada
(Attorney General), [2013] 1 S.C.R. 623, at para. 69.
[35]
The term “Indian” or “Indians” in the
constitutional context, therefore, has two meanings: a broad meaning, as used
in s. 91(24) , that includes both Métis and Inuit and can be equated with the
term “aboriginal peoples of Canada” used in s. 35 , and a narrower meaning that
distinguishes Indian bands from other Aboriginal peoples. As will be noted
later in these reasons, this Court in Reference as to whether “Indians” in
s. 91(24) of the B.N.A. Act includes Eskimo inhabitants of the Province of
Quebec, [1939] S.C.R. 104 (“Re Eskimo”), held that s. 91(24) includes
the Inuit. Since the federal government concedes that s. 91(24) includes
non-status Indians, it would be constitutionally anomalous, as the Crown also
conceded, for the Métis to be the only Aboriginal people to be recognized and
included in s. 35 yet excluded from the constitutional scope of s. 91(24) .
[36]
The Report of the Royal Commission on
Aboriginal Peoples, released in 1996, stressed the importance of rebuilding
the Crown’s relationship with Aboriginal peoples in Canada, including the
Métis: see vol. 3, Gathering Strength. The Report called on the federal
government to “recognize that Métis people . . . are included in the federal
responsibilities set out in section 91(24) of the Constitution Act, 1867 ”:
vol. 2, Restructuring the Relationship, at p. 66. The importance of this
reconstruction was also recognized in the final report of the Truth and
Reconciliation Commission of Canada: Honouring the Truth, Reconciling
for the Future: Summary of the Final Report of the Truth and Reconciliation
Commission of Canada (2015), at p. 183; see also Mikisew Cree First Nation v. Canada
(Minister of Canadian Heritage), [2005] 3 S.C.R.
388, at para. 1, and Lax Kw’alaams Indian Band v. Canada (Attorney General),
[2011] 3 S.C.R. 535, at para. 12.
[37]
The constitutional changes, the apologies for
historic wrongs, a growing appreciation that Aboriginal and non-Aboriginal
people are partners in Confederation, the Report of the Royal Commission on
Aboriginal Peoples, and the Final Report of the Truth and Reconciliation
Commission of Canada, all indicate that reconciliation with all of
Canada’s Aboriginal peoples is Parliament’s goal.
[38]
The jurisprudence also supports the conclusion that Métis are “Indians” under s. 91(24) . There is no case
directly on point, but by identifying which groups have already been recognized
as “Indians” under this head of power and by establishing principles governing
who can be considered “Indians”, the existing cases provide guidance.
[39]
In Re Eskimo, this Court had to determine
whether the Inuit were “Indians” under s. 91(24) of the Constitution Act,
1867 . Relying on historical evidence to determine the meaning of “Indians”
in 1867, the Court drew heavily from the 1858 Report from the Select
Committee on the Hudson’s Bay Company. Acting on behalf of the federal
government, the Hudson’s Bay Company had conducted a survey of Rupert’s Land
and the North-Western Territories in which the Inuit were classified as
Indians. The Court found that while the Inuit had their own language, culture,
and identities separate from that of the “Indian tribes” in other parts of the
country, they were “Indians” under s. 91(24) on the basis of this survey. It
follows from this case that a unique culture and history, and
self-identification as a distinct group, are not bars to being included as
“Indians” under s. 91(24) .
[40]
In Attorney General of Canada v. Canard, [1976] 1 S.C.R. 170, this Court traced the outer
limits of the “Indian” power under s. 91(24) . An Indian couple lived on a
reserve most of the year except for a few weeks each summer during which they
lived off the reserve and the husband worked on a farm. The husband died during
one of the weeks he was away from the reserve. This resulted in the
superintendent in charge of the Indian district (which included their reserve)
being appointed as administrator of his estate, pursuant to s. 43 of the Indian
Act .
His wife challenged s. 43 on the grounds that it violated the Canadian Bill
of Rights, S.C.
1960, c. 44 . While the Court held that s. 43 of the Indian Act did
not violate the Bill of Rights, Beetz J. concluded that in determining
who are “Indians” under s. 91(24) , “it would not appear
unreasonable to count marriage and filiation and, unavoidably, intermarriages”:
p. 207.
[41]
These two cases left jurisprudential imprints that assist in
deciding whether Métis are part of what is included in
s. 91(24) . As stated above, Canard shows that intermarriage and
mixed-ancestry do not preclude groups from inclusion under s. 91(24) . And Re Eskimo establishes that the fact that
a group is a distinct people with a unique identity and history whose
members self-identify as separate from Indians, is not a bar
to inclusion within s. 91(24) .
[42]
There is no doubt that the Métis are a distinct
people. Their distinctiveness was recognized in two recent cases from
this Court — Alberta (Aboriginal Affairs and Northern
Development) v. Cunningham, [2011] 2 S.C.R.
670, and Manitoba Metis Federation. The issue in Cunningham
was whether Alberta’s Metis Settlements Act, R.S.A. 2000, c.
M-14, violated s. 15 of the Canadian Charter of Rights and Freedoms
by terminating the membership of Métis who voluntarily
registered as Indians under the Indian Act . The Court concluded that the
Metis Settlements Act was justified as an ameliorative program. In
commenting on the unique history of the Métis, the
Court noted that they are “widely recognized as a culturally distinct
Aboriginal people living in culturally distinct communities”: para. 7.
[43]
And in Manitoba Metis Federation, this
Court granted declaratory relief to the descendants of Manitoba’s Red River
Métis Settlement. The federal Manitoba Act, 1870, S.C. 1870, c.
3, promised land to the children of the Métis. Errors
and delays resulted in many of them receiving inadequate scrip rather than
land. The Court held that Canada had a fiduciary relationship with the Métis, and that the Crown’s promise to implement the land
grant engaged the honour of the Crown. This created a duty of diligent
implementation. In so deciding, the Court stated that the
Métis of the Red River Settlement are a “distinct community”: para. 91.
[44]
The Crown, however, submits that including Métis
as “Indians” under s. 91(24) is contrary to this Court’s decision in R. v.
Blais, [2003] 2 S.C.R. 236. With respect, I think Blais can be
easily distinguished. The issue in Blais was whether a provision
of Manitoba’s Natural Resources Transfer Agreement, which allowed
“Indians” to hunt out of season, included Métis. It is
true that the Court concluded that “Indians” in the Natural Resources
Transfer Agreement did not include Métis, but what
was at issue was a constitutional agreement, not the Constitution. This, as
this Court noted in Reference re Same-Sex Marriage, [2004] 3 S.C.R. 698,
is a completely different interpretive exercise:
. . . it is submitted that the intention of the
framers should be determinative in interpreting the scope of the heads of power
enumerated in ss. 91 and 92 given the decision in R. v. Blais, [2003] 2
S.C.R. 236, 2003 SCC 44. That case considered the interpretive question in
relation to a particular constitutional agreement, as opposed to a head of
power which must continually adapt to cover new realities. It is therefore
distinguishable and does not apply here. [para. 30]
[45]
While there was some overlapping evidence between Blais
and this case, the interpretation of a different record in Blais
directed at different issues cannot trump the extensive and significantly
broader expert testimony and the findings of Phelan J. Of most significance,
however, is the fact that this Court itself expressly stated in Blais
that it was not deciding whether s. 91(24) included the Métis. Far from
seeing Blais as dispositive of the constitutional scope of s. 91(24) ,
the Court emphasized that it left “open for another day the question of whether
the term ‘Indians’ in s. 91(24) of the Constitution Act, 1867 includes
the Métis — an issue not before us in this appeal”: para. 36.
[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.
[50]
The first declaration should, accordingly, be
granted as requested. Non-status Indians and Métis are “Indians” under s.
91(24) and it is the federal government to whom they can turn.
[51]
But federal jurisdiction over Métis and
non-status Indians does not mean that all provincial legislation pertaining to
Métis and non-status Indians is inherently ultra vires. This Court has
recognized that courts “should
favour, where possible, the ordinary operation of statutes enacted by both
levels of government”: Canadian Western Bank v. Alberta, [2007] 2 S.C.R.
3, at para. 37 (emphasis in original). Moreover, this Court has been clear that
federal authority under s. 91(24) does not bar valid
provincial schemes that do not impair the core of the “Indian” power: NIL/TU,O
Child and Family Services Society v. B.C. Government and Service Employees’
Union, [2010] 2 S.C.R. 696, at para. 3.
[52]
I agree, however, with both the trial judge and
the Federal Court of Appeal that neither the second nor third declaration
should be granted.
[53]
The second declaration sought is to recognize
that the Crown owes a fiduciary duty to Métis and non-status Indians. Delgamuukw
v. British Columbia, [1997] 3 S.C.R. 1010, accepted that Canada’s
Aboriginal peoples have a fiduciary relationship with the Crown and Manitoba
Metis Federation accepted that such a relationship exists between the Crown
and Métis. As a result, the declaration lacks practical utility because it is
restating settled law.
[54]
The third declaration sought is 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.
[55]
The claim is that the First Ministers’
conferences anticipated by ss. 37 and 37.1 of the Constitution Act, 1982 did not yield the
hoped-for results in identifying and defining Aboriginal rights. The subsequent
lack of progress implies that the federal government has not fulfilled its
constitutional obligations.
[56]
However, Haida Nation v.
British Columbia (Minister of Forests), [2004] 3 S.C.R. 511, Tsilhqot’in Nation
v. British Columbia, [2014] 2 S.C.R. 257, and Powley
already recognize a context-specific duty to negotiate when Aboriginal rights
are engaged. Because it would be a restatement of the existing law, the third
declaration too lacks practical utility.
[57]
For the foregoing reasons, while I agree with
the Federal Court of Appeal and the trial judge that the second and third
declarations should not be granted, I would restore the trial judge’s decision
that the word “Indians” in s. 91(24) includes Métis and non-status Indians.
[58]
The appeal is therefore allowed in part and the
Federal Court of Appeal’s conclusion that the first declaration should exclude
non-status Indians or apply only to those Métis who meet the Powley criteria,
is set aside. It follows that the cross-appeal is dismissed. The appellants are
entitled to their costs.
Appeal allowed in part and cross‑appeal dismissed, with costs.
Solicitors for the
appellants/respondents on cross‑appeal: University of Ottawa,
Ottawa; Paliare Roland Rosenberg Rothstein, Toronto.
Solicitor for the
respondents/appellants on cross‑appeal: Attorney General of Canada,
Saskatoon, Ottawa and Edmonton.
Solicitor for the
intervener the Attorney General for Saskatchewan: Attorney General for
Saskatchewan, Regina.
Solicitor for the
intervener the Attorney General of Alberta: Attorney General of Alberta,
Edmonton.
Solicitors for the
interveners the Native Council of Nova Scotia, the New Brunswick Aboriginal
Peoples Council and the Native Council of Prince Edward Island: Burchells,
Halifax.
Solicitors for the
intervener the Metis Settlements General Council: Witten, Edmonton.
Solicitors for the
intervener the Te’mexw Treaty Association: JFK Law Corporation, Vancouver.
Solicitors for the
intervener the Métis Federation of Canada: Devlin Gailus Westaway,
Victoria.
Solicitors for the
intervener the Aseniwuche Winewak Nation of Canada: JFK Law Corporation,
Vancouver and Victoria.
Solicitors for the
intervener the Chiefs of Ontario: Nahwegahbow, Corbiere Genoodmagejig, Rama,
Ontario.
Solicitors for the
intervener the Gift Lake Métis Settlement: Gowling WLG (Canada) Inc.,
Ottawa.
Solicitors for the
intervener the Native Alliance of Quebec: Gagné Letarte, Québec.
Solicitors for the
intervener the Assembly of First Nations: Gowling WLG (Canada) Inc.,
Ottawa.
Solicitor for the
intervener the Métis National Council: Métis National Council, Ottawa.