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	CAP 91(24) Statement of Claim

Court File No.: T-2172-99

IN THE FEDERAL COURT OF CANADA
TRIAL DIVISION

Between:

HARRY DANIELS, LEAH GARDNER and
THE CONGRESS OF ABORIGINAL PEOPLES

Plaintiffs

- and -

HER MAJESTY THE QUEEN, as represented by
THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT
and THE ATTORNEY GENERAL OF CANADA

Defendants

AMENDED
STATEMENT OF CLAIM

TO THE DEFENDANTS:

A LEGAL PROCEEDING HAS BEEN COMMENCED AGAINST YOU by the Plaintiffs. The Claim made against you is set out in the following pages.

IF YOU WISH TO DEFEND THIS PROCEEDING, you or a solicitor acting for you are required to prepare a statement of defence in Form 171B prescribed by the Federal Court Rules, 1998, serve it on the plaintiffs' solicitor or, where the plaintiff does not have a solicitor, serve it on the plaintiff, and file it, with proof of service, at a local office of this Court, WITHIN 30 DAYS after this statement of claim is served on you, if you are served within Canada.

If you are served in the United States of America, the period for serving and filing you statement of defence is forty days. If you are served outside Canada and the United States of America, the period for serving and filing your statement of defence is sixty days.

Copies of the Federal Court Rules, 1998, information concerning the local offices of the Court and other necessary information may be obtained on request to the Administrator of this Court at Ottawa (telephone 613-992-4238) or at any local office.

IF YOU FAIL TO DEFEND THIS PROCEEDING, judgment may be given against you in your absence and without further notice to you.

December ____, 1999

Issued by: _______________________
Registry Officer

Address of local office:Edmonton Local OfficeFederal Court of CanadaScotia Place Tower I10060 Jasper AvenueSuite 530, P.O. Box 51Edmonton, Alberta T5J 3R8Tel: (780) 495-4651Fax: (780) 495-2428TDD: (780) 495-4681 Address of Ottawa office:Ottawa Local OfficeFederal Court of Canada90 Elgin Street1st FloorOttawa, OntarioK1A 0H9Tel: (613) 992-4238Fax: (613) 952-3653TDD: (613) 947-4098

TO: THE REGISTRAR OF THE FEDERAL COURT OF CANADA

AND TO:

THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT
THE ATTORNEY GENERAL OF CANADA

CLAIM

The Parties

1. The Plaintiff Harry Daniels is a Metis person who resides at Regina, in the Province of Saskatchewan. He is the former President of the Plaintiff Congress of Aboriginal Peoples ("CAP"). He sues herein in his personal capacity .

2. The Plaintiff Leah Gardner is a non-status Indian person who resides at Wabigoon, in the province of Ontario. Both of her parents were of Indian descent. She is currently employed as a museum curator, and sues in her personal capacity.

3. The Plaintiff the Congress of Aboriginal Peoples ("CAP") is a body corporate, incorporated under the laws of Canada, which represents Metis and non-status Indian people throughout Canada. CAP sues herein as a public interest plaintiff. CAP was formerly the Native Council of Canada ("NCC"). The first object stated in the Letters Patent of the NCC from its inception in 1972 was as follows:

"(a) To advance on all occasions the interest of the Metis and Non-Status Indian people of Canada, and to co-ordinate their efforts for the purpose of promoting their common interest through collective action."

The Supplementary Letters Patent by which the name of the NCC was changed to the CAP in 1994 also amended the objects of the corporation to include the following:

"2(a) To advance on all occasions the Aboriginal, Constitutional and Treaty rights and interests of the Aboriginal people of Canada and to co-ordinate their efforts for the purpose of promoting their common interest through collective action, and further to participate in international activities in support and advancement of similar objectives of the Indigenous peoples of the world.

2(d) The discussion of, and recommendation to the Government of Canada, of legislation or amendments to Acts or Regulations affecting the interests of the Aboriginal people of Canada, and to co-operate with the respective governments, provincial, territorial and federal, for the welfare of Aboriginal people within the provinces and territories of Canada, and in Canada.

2(g) To enter into any agreement and arrangements with any Government or Authority that may seem conducive to the Council's objects of any of them and to obtain from such Government or Authority any rights, privileges and concessions which the Council may think it desirable to obtain and to carry out, exercise and comply with such arrangements and agreements, rights, privileges and concessions."

4. The Defendant Her Majesty the Queen ("Queen") is the person in whom the executive government and authority of and over Canada is vested pursuant to s. 9 of the Constitution Act, 1867. To the extent that she does so in right of the Government of Canada she will be referred to herein as the "Federal Government".

5. The Defendant Minister of Indian Affairs and Northern Development is the Minister of the Federal Government and the member of Her Majesty's Privy Council for Canada who now is, and whose predecessors in office previously were, responsible for administering the laws and policies of the Federal Government, and of the Parliament of Canada ("Parliament") relating to "Indians and lands reserved for the Indians" under s. 91(24) of the Constitution Act, 1867, and the Indian Act, R.S.C. 1985, c. I-5 ("Indian Act").

6. The Defendant Attorney General of Canada ("Attorney General") is the Minister of the Federal Government and member of Her Majesty's Privy Council for Canada who is now, and whose predecessors in office previously were, responsible for seeing that "the administration of public affairs are in accordance with the law" under s. 4(a) of the Department of Justice Act, R.S.C. 1985, c. J-12 ("Justice Act"); for examining Federal Government regulations and bills under s. 4.1(1) of the Justice Act to "ascertain whether any of the provisions thereof are inconsistent with the purpose or provisions of the Canadian Charter of Rights and Freedoms" ("Charter"); for the "settlement and approval of all instruments issued under the Great Seal" under s. 5(c) of the Justice Act; for examining every such regulation and bill proposed "to ascertain whether any of the provisions thereof are inconsistent with the purposes and provisions" of Part I of the Canadian Bill of Rights, 1960; and for having "the regulation and conduct of all litigation for or against the Crown or any department, in respect of any subject within the authority or jurisdiction of Canada" under s. 5(d) of the Justice Act.

The Metis

7. When Europeans came to the areas of North America that now comprise Canada in the 17th, 18th and early 19th centuries, chiefly to fish and to conduct the fur trade, many of them intermarried, either formally or de facto, with Indian, Innu and Inuit women. Many offspring of those marriages and, later, offspring of the offspring, were raised by their mothers, or by both parents, in locations and circumstances where Aboriginal and European cultures and languages co-mingled. Over time, distinct roles in the fishery and fur trade, and distinct cultures, languages, and lifestyles evolved for those offspring, and/or their descendants, and distinct communities were formed. Members of those distinct communities, and adherents of those distinct cultures, languages and lifestyles, came to be known as "Metis" and "half-breeds" in some areas, and as "livyers", or "settlers" in other areas.

8. When the Dominion of Canada was created in 1867, its Constitution, now known as the Constitution Act, 1867, stated in s. 91(24) that the Parliament of Canada may make laws relating to: "Indians and lands reserved for the Indians."

9. When the Hudson's Bay Company territory, having been surrendered to Great Britain, was transferred to Canada by the Rupert's Land and North-Western Territory Order, 1870 ("Transfer Order"), the Transfer Order included an acknowledgement of "the equitable principles which have uniformly governed the British Crown in its dealings with the aborigines." That condition was given constitutional status by reason of s. 146 of the Constitution Act, 1867, which authorized admission of the territory in question "on such terms and conditions ... as are in the Addresses expressed and as the Queen thinks fit to approve...."

10. In 1869-70, after the surrender to Great Britain of the said Hudson's Bay Company's territory, but before its transfer to Canada by the Transfer Order, the predominantly Metis population of the south-eastern portion of the territory, commonly known as the Red River Settlement, formed a Provisional Government under the leadership of Louis Riel.

11. The Provisional Government sent a delegation to Ottawa in early 1870 to negotiate the terms upon which the area subsequently called Manitoba (comprising the Red River Settlement and contiguous areas) should be admitted to Canadian Confederation. Canada conducted negotiations with the Provisional Government's delegation, and as a result of those negotiations, the Queen in right of Great Britain issued the Transfer Order, and the Parliament of Canada enacted the Manitoba Act, 1870 (subsequently given constitutional status by the Constitution Act, 1871), which created the Province of Manitoba.

12. Those negotiations also resulted in a promise by Canada that land would be provided for Metis. The latter promise was the basis for, inter alia, s. 31 of the Manitoba Act, 1870:

"31. And whereas, it is expedient, towards the extinguishment of the Indian title to the lands in the Province, to appropriate a portion of such ungranted lands, to the extent of one million four hundred thousand acres thereof, for the benefit of the families of the half-breed* residents, it is hereby enacted, that, under regulations to be from time to time made by the Governor General in Council, the Lieutenant-Governor shall select such lots or tracts in such parts of the Province as he may deem expedient, to the extent aforesaid, and divide the same among the children of the half-breed* heads of families residing in the Province at the time of the said transfer to Canada, and the same shall be granted to the said children respectively, in such mode and on such conditions as to settlement and otherwise, as the Governor General in Council may from time to time determine."

(*In the French version the equivalent of "half-breed" is "Metis").

13. After passage of the Manitoba Act, 1870 many Metis and Indians moved west and north from the new province, which was much smaller than it now is, to settle in the Northwest Territories, as the remaining portion of the territory transferred by the Transfer Order was called. Other Metis and Indians had settled there prior to the creation of Manitoba.

14. In 1872, Parliament enacted the Dominion Lands Act, S.C. 1872, c. 23, to regulate the settlement of lands within the Northwest Territories. Section 42 of that Act stated:

"None of the provisions of this Act respecting the settlement of Agricultural lands, or the lease of Timber lands, or the purchase and sale of Mineral lands, shall be held to apply to territory the Indian title to which shall not at the time have been extinguished."

15. In 1879 the Dominion Lands Act was amended S.C. 1879, c. 31, to state in s. 125(e) that the Governor-in-Council was empowered to:

"...satisfy any claims existing in connection with the extinguishment of the Indian title, preferred by half-breeds resident in the North-West Territories outside the limits of Manitoba, on the fifteenth day of July [1870], by granting lands to such persons, to such extent and on such terms and conditions, as may be deemed expedient."

16. The Constitution Act, 1982 states in s. 35(1) that:

"The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed."

Section 35(2), which was agreed upon during negotiations with Aboriginal representatives at the insistence of Harry Daniels on behalf of CAP's predecessor the NCC, explains "aboriginal peoples of Canada" as follows:

"In this Act, 'aboriginal peoples of Canada' includes the Indian, Inuit and Metis peoples of Canada."

17. In this Statement of Claim the term "Metis" includes the following categories of persons:

(a) Any person having maternal and paternal Aboriginal ancestors, genetic or otherwise, who were recognized as Metis (or "Métis", "half breeds", "liviers", or "settlers");

(b) Any person having only paternal ancestors in category 17(a);

(d) Any person who identifies himself or herself as Metis (or as "Métis") and is accepted as such by the Metis community or a locally-organized community branch, chapter or council of a Metis association or organization with which the person wishes to be associated;

and the reference to "Metis" in the prayer for relief (para. 27) below extends to all or any of the foregoing categories of persons.

Non-Status Indians

18. Non-status Indians are Indians to whom, from time to time, the Indian Act does not apply, or with respect to whom the Federal Government or its agencies have decided that the Indian Act does not apply.

19. The first definition of "Indian" by the Parliament of Canada was in the Department of Secretary of State Act, enacted in 1868 (S.C. 1868, c. 42). Section 15 of that Act embodied the following statement concerning those to whom the Act applied:

"15. For the purpose of determining what persons are entitled to hold, use or enjoy the lands and other immoveable property belonging to or appropriated to the use of the various tribes, bands or bodies of Indians in Canada, the following persons and classes of persons, and none other, shall be considered as Indians belonging to the tribe, band or body of Indians interested in any such lands or immoveable property:

Firstly. All persons of Indian Blood, reputed to belong to the particular tribe, band or body of Indians interested in such lands or immoveable property, and their descendants;

Secondly. All persons residing among such Indians, whose parents were or are, or either of them was or is, descended on either side from Indians or an Indian reputed to belong to the particular tribe, band or body of Indians interested in such lands or immoveable property, and the descendants of all such persons; and

Thirdly. All women lawfully married to any of the persons included in the several classes hereinbefore designated; the children issue of such marriages, and their descendants."

20. The foregoing description of those to whom the Indian Act applies was altered many times in subsequent amendments over the years, with the general effect that the description was gradually but severely narrowed, and consequently that the range of persons falling within the category of non-status Indians was proportionately enlarged.

21. In this Statement of Claim the term "non-status Indian" includes any person who is not now qualified to be registered under the terms of the current Indian Act, and who falls within any of the following categories of persons:

(a) any person whose maternal and paternal ancestors were "Indians" under:

(i) the common understanding of the term "Indian"; or

(ii) the terms of s. 15 of the Secretary of State Act, S.C. 1868, c. 42;

(b) any person whose paternal ancestors only were "Indians" in categories 21(a)(i) or 21(a)(ii);

(d) any person who identifies himself or herself as Indian and is accepted as such by the Indian community or a locally organized community branch or council of an Indian association or organization with which that person wishes to be associated ;

and the reference to "non-status Indians" in the prayer for relief (para. 27) below extends to all or any of the foregoing categories of persons.

Rights and Duties

22. The Plaintiffs assert that Metis and non-status Indians are:

(a) "Indians" within the meaning and for the purposes, of s. 91(24) of the Constitution Act, 1867;

(b) owed a fiduciary duty by the Queen; and

(c) entitled to be negotiated with in good faith by the Federal Government, on a collective basis through representatives of their own choice, with respect to their rights, interests and needs as Aboriginal people; such right of negotiation being based upon s. 35 of the Constitution Act, 1982 and of the fiduciary duty referred to in sub-paragraphs (b) above, as well as upon the foundational principles of the Constitution of Canada, including "democracy" and "respect for minorities."
Disagreement as to Rights

23. CAP, and NCC before it, has attempted in the past, and continues to attempt, to engage in negotiations with the Federal Government, and/or agencies of the Federal Government, concerning the rights, interests and needs, as Aboriginal people, of the Metis and non-status Indian people of Canada. Those negotiations have been, and continue to be, frequently frustrated and hampered by the denial of the Federal Government that Metis and non-status Indians are entitled to some or all of the rights set out in the foregoing paragraph.

Denials, Deprivations and Discrimination

24. In particular, the Federal Government, on numerous occasions, has denied its jurisdiction over or responsibility for Metis and non-status Indians, and has refused or failed to negotiate in good faith, or at all, with representatives of Metis and non-status Indian peoples on a collective basis through representatives of their own choice with respect to their rights, interests and needs as Aboriginal people.

25. The Plaintiffs say that such denials and refusals are based on an erroneous interpretation of the Federal Government's constitutional jurisdiction under s. 91(24) of the Constitution Act, 1867; and that they constitute violations of the fiduciary duty and other constitutional duties outlined in paragraph 23 above owed by the Federal Government to the Metis and non-status Indians of Canada.

26. As a result of such denials and refusals, Metis and non-status Indians have suffered deprivations and discrimination that include:

(a) lack of access to health care benefits, education benefits and other benefits made available by the Federal Government to status Indians;

(b) lack of access to the material and cultural benefits available to status Indians by reason of their connection with Indian Reserves;

(d) failure of the Federal Government to negotiate or enter treaties with respect to unextinguished Aboriginal rights, or agreements with respect to other Aboriginal matters or interests, analogous to those treaties and agreements which the Federal Government has negotiated and/or entered with status Indians.

Relief Sought

27. The Plaintiffs therefore respectfully claim judicial declarations that:

(a) Metis and non-status Indians are "Indians" within the meaning of the expression "Indians and lands reserved for the Indians" in s. 91(24) of the Constitution Act, 1867;

(b) The Queen owes a fiduciary duty to Metis and non-status Indians, as Aboriginal peoples and;

(c) The Metis and non-status Indian peoples of Canada have the right to be 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.

The Plaintiffs also seek costs, and such further relief as this Court considers appropriate and just.

Place of Trial

28. The Plaintiffs propose that the trial of this action be held at the City of Edmonton, in the Province of Alberta.
DATED at the City of Edmonton in the Province of Alberta this 14th day of December, 2000.

Joseph Eliot Magnet Andrew K. Lokan

_________________________

Counsel for the Plaintiffs