The lawsuit insists that all Aboriginal  peoples in Canada should be a Federal responsibility under Section 91(24) of the Constitution Act, 1982.  A similar suit  in 1939 found that Inuit (Eskimos at the time) were Indians within the meaning of Section 91(24) . The Statement of Claim released by CAP December 14, 1999 is presented below.

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

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 a follows:

"1(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 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 coordinate 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 arrangement with any Government or Authority that may seem conducive to the Councilís 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 ("Quee"î) 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 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 Majestyís 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 ("Parliamen"î) relating to"ìIndians and lands reserved for Indians" under s. 91(24) of the Constitution Act, 1867, and the Indian Act, R.S.C. 1985, c.I5 (Indian Actî).

6. The Defendant Attorney General of Canada ("Attorney Genera") is the Minister of the Federal Government and member of Her Majesty's Privy Council who is now, and whose predecessors in office 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 the Federal Government regulations and bills under s. 41(1) of the Justice Act to "ascertain whether any of the provisions thereof are inconsistent with the purpose or provision 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 ìthe regulations and conduct of litigation for or against the Crown or any department, in respect of any subject within the authority or jurisdiction of Canadaî under s.5(d) of the Justice Act.

7. When Europeans came to the areas of North America that now comprise Canada in the 17th, 18th, and 19th centuries, chiefly to conduct the fur trade, many of them intermarried, either formally or defacto, with Indian 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 Indian and European cultures and languages co-mingled. Over time, distinct roles in the fur trade, and distinct cultures, languages and lifestyles evolved from 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 "halfbreeds". Those Metis who inhabited the territory administered by the Hudson's Bay Company between 1670 and 1870 collectively constituted the "Metis Nation."

8. When the Dominion of Canada was created in 1867, the 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 Indians".

9. When the Hudsonís 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 acknowledgment of the "equitable principles which have uniformly governed the British Crown in 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 Addressees expressed and as the Queen sees 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. Although the Manitoba Act, 1870 did not satisfy all of the Provisional Governmentís demands, or even the matter agreed upon by its delegation and Canada's negotiators, it did embrace several agreed matters, including a promise by Canada that land would be provided for Metis. The latter promise was the basis for 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 haflbreed* 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 halfbreed* 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 "halfbreed" is "Metis")

13. After the 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 provision 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 the 1789 the Dominion Lands Act was amended S.C. 1879, c 31, to state in s. 125(e) that the Governor General was empowered to:

"... satisfy any claims existing in connection with the extinguishment of the Indian title, preferred by the 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 CAPís predecessor the NCC explains "aboriginal peoples of Canad"a as follows:

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

17. 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 the Indian Act does not apply.

18. The first Indian Act was 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 immovable 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 land or immovable property.

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

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

19. 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.

Rights and Duties

20. The Plaintiffs assert that Metis and Non-Status Indians are entitled to the following rights, and that the Defendants owe a duty to honour and respect such rights:

(a) Aboriginal rights as recognized and affirmed in s. 35 of the Constitution Act, 1982;

(b) the right, as Aboriginal people, to be owed a fiduciary duty by the Queen;

(c) the right to be considered and treated as ìIndiansî within the meaning, and for the purposes of s. 91(24 of the Constitution Act [sic], 1867:

(d) the right, in accordance with s. 15(1) of the Charter, and with foundational principles of the Constitution of Canada, to be treated equally and without discrimination vis-a-vis other Aboriginal people; and

(e) the right 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 on the rights outlined in sub-paragraphs (a) to (d) above, as well as upon the foundational principles of the Constitution of Canada, including ìdemocracyî and ìrespect for minorities."

Disagreement as to Rights

21. 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 rights, interest 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 the rights set out in the foregoing paragraph, or to all of them.

22. 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.

23. The Plaintiffs say that such denials and refusals are based on erroneous interpretation of the Federal Governmentís 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 20 above owed by the Federal Government to the Metis and non-Status Indians of Canada.

24. 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 reasons of their connection with Indian Reserves;

(c) criminal prosecution for seeking to exercise the same rights as status Indians to hunt, trap, fish, and gather on public lands; and

(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
 

25. The Plaintiffs therefore respectfully claim judicial declarations that:

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

(b) The Federal Government owes a fiduciary duty to Metis and non-status Indians, as Aboriginal people; and

(c) The Metis and non-status Indian people 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 people and to the extent the Federal Government refuses or otherwise fails to do so it violates:

(i) their Aboriginal rights as recognized and affirmed in s. 35 of the Constitution Act, 1982;

(ii) the fiduciary duty they are owed as Aboriginal peoples;

(iii) their equality rights under s. 15(1) of the Charter including their right thereunder not to be discriminated against on the basis of race or national origin; and

(iv) foundational principles of the Constitution of Canada, including "democray" and "respect for minorities".

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

Place of Trial

26. 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 Ottawa in the Province of Ontario this 14th of December, 1999.

DALE GIBSON ASSOCIATES
Barristers and Solicitors
 

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Dale Gibson
Counsel for the Plaintiffs