Court File No.: 35945
IN THE SUPREME COURT OF CANADA
(ON APPEAL FROM THE FEDERAL COURT OF APPEAL)
BETWEEN:
HARRY DANIELS, GABRIEL DANIELS, LEAH GARDNER,
TERRY JOUDREY and THE CONGRESS OF ABORIGINAL PEOPLES
Appellants
(Respondents by Cross-Appeal)
AND
HER MAJESTY THE QUEEN as represented by
THE MINISTER OF INDl~""l AFFAIRS AND NORTHERN DEVELOPMENT
and THE ATTORNEY GENERAL OF CANADA
Respondents
(Appellants by Cross-Appeal)
FACTUM OF THE 11'11ERVENER
ATTORNEY GENERAL FOR SASKATCHEWAN
SASKATCHEWAN JUSTICE
ABORIGINAL LAW
820-1874 Scarth Street
REGINA, SK S4P 4B3
Telephone: (306)787-7846
Facsimile: (306)787-9111
Email: Mitch.McAdam@gov.sk.ca
GOWLING LAFLEUR HENDERSON LLP
Barristers and Solicitors
2600, 160 Elgin Street
OTTAW'A,ON KlPIC3
Telephone: (613)786-8695
Facsimile: (613)788-3509
Email: lynne.watt@gowlings.com
P. Mitch McAdam, Q.C.
Counsel for the Intervener
Attorney General of Saskatchewan
D. Lynne Watt
Ottawa Agent for the Intervener
Attorney General of Saskatchewan
TABLE OF CONTE1''TS
Page
I. OVERVIEW OF POSITION AND STATEMENT OF FACTS
1
II. STATEMENT OF ISSUES
1
III.ARGUMENT
2
A. Not an "Either/Or Question"
2
B. Are the Metis of Western Canada Section 91(24) Indians?
3
C. Inter-Jurisdictional Immunity
7
D. Room for the Exercise of Provincial Jurisdiction
8
E. Blais is Still Good Law
8
F. Conclusion
9
IV. COSTS
10
V. DISPOSITION OF THE LEGAL ISSUES
10
VI. TABLE OF AUTHORITIES
11
PART I- OVERVIEW OF POSITION AND STATEMENT OF FACTS
1.
The Attorney General for Saskatchewan has intervened in this appeal in order to
address the issue concerning whether the Metis are "Indians" for the purposes of section
91(24) of the Constitution Act, 1867. 1 This is a significant issue for Saskatchewan because a
large nwnber of Metis people live in the Province today and have historically lived here. The
Attorney General intends to address only the situation of the Metis of Western Canada. He
does not intend to comment on whether there are other Metis people in Canada or whether
these people should be considered to be "Indians". Saskatchewan has consistently taken the
position that the Metis of Western Canada are "Indians" for the purposes of section 91 (24).
This issue has arisen in litigation in Saskatchewan and the Attorney General has conceded the
point.2 The Province has also enacted The Metis Act which specifically provides in its
preamble that nothing in the Act is to be construed as altering or affecting the Province's
position that legislative authority in relation to Metis people rests with the Government of
Canada under section 91(24).3
2.
The Attorney General's position with respect io this issue is unique. rne Attorney
General agrees with the submissions of Canada and Alberta that the Metis in Western Canada
were not considered to be "Indians" in 1870 when Rupert's Land and the North-Western
Territory joined Confederation. Nevertheless, it is the Attorney General's position that section
91 (24) should be interpreted broadly and that these Metis can, therefore, still be considered to
be "Indians".
PART II-STATEMENT OF ISSUES
3.
The Attorney General sought and was granted leave to intervene in this appeal in
order to address the issue concerning whether Metis are "Indians" for the purposes of section
91(24). He does not, therefore, intend to address any of the other issues raised by this appeal.
1
30 & 31 Viet., c. 3, reprinted in R.S.C. 1985, Appendix II, No. 5.
R. v. Laviolette, 2005 SKQB 61, 260 Sask. R. 121; R. v. Grumbo, [1998] 3 C.N.L.R. 172 (Sask. C.A.) at 18, 168
Sask. R. 78.
3
S.S. 2001, c. M-14.01.
2
-2-
PART Ill-ARGUMENT
A.
4.
Not an "Either/Or" Question
At paragraph ten of the Court of Appeal judgment, Dawson J.A. indicates that the
Appellants are seeking resolution of the issue as to which of Canada or the Provinces have
jurisdiction over Metis and non-status Indian peoples. It is the position of the Attorney
General that this is not an "either/or" question. Even if the Court concludes that Metis are not
"Indians" for the purposes of section 91 (24 ), this does not mean that the provinces have
jurisdiction over the Metis in tenns similar to Parliament's jurisdiction over Indians.
5.
Federal jurisdiction over "Indians" under section 91(24) is a unique power. It
provides jurisdiction over a specific group of people. It authorizes Parliament to legislate with
respect to this group in an all-encompassing way. As this Court noted in Canard, section
91(24) authorizes Parliament to legislate for Indians with respect to matters that would
otherwise fall within provincialjurisdiction.4 Therefore, unlike most of the other heads of
power where there needs to be a line of demarcation between federal and provincial
jurisdiction, section 91(24) authorizes Parliament to legislate in a way that could largely
subsume provincial jurisdiction, if it wishes.
6.
The Appellants argue that the principle of exhaustiveness - that all legislative
power in Canada is divided between Parliament and the provincial legislatures5 - warrants the
conclusion that if Metis are not section 91(24) Indians, then they must fall within provincial
jurisdiction. The Attorney General submits that this would not be an appropriate application
of the principle. Taking the Appellants' argument to its logical end, the failure to mention
other groups in section 91, such as Mennonites, would give the provinces all-encompassing
jurisdiction over these people. Clearly, that would be an absurd result. It is submitted that the
4
Attorney General ofCanada v. Canard, [1976] 1 S.C.R. 170, 52 D.L.R. (3d) 548 [Canard]; Brown v. British
Columbia (1980), 107 D.L.R. (3d) 705, [1980) 3 W.W.R. 360 (B.C. C.A.); K.M. Lysyk, "The Unique Constitutional
Position of the Canadian Indian" (1967) 45 Can. Bar Rev. 513; Peter Hogg, Constitutional Law ofCanada, 5th ed.
Supplemented (Toronto: Carswell, 2007) at 28-4. 1-28.5.
5
Attorney General ofOntario v. Attorney General of Canada (References Case), [1912] A.C. 581; see also Hogg,
supra note 4 at 12-4 - 12-5.
-3-
power to enact legislation with respect to a specific group of people in an all~encompassing
fashion akin to section 91(24) must be set out explicitly in the Constitution and should not be
implied. Furthermore, the mischief that the exclusivity principle is aimed at is a jurisdictional
6
gap. Not applying the principle in this case does not lead to a gap.
B.
7.
Are the Metis of Western Canada Section 91(24) Indians?
The Attorney General submits that, as noted in R. v. Big M Drug Mart Ltd.,
constitutional provisions like section 91(24) should be interpreted purposively and in light of
their linguistic, philosophic and historical contexts. 7 This approach was recently described by
LeBel J. in CSN v. Canada with respect to the interpretation of section 91(2A) of the
Constitution Act, 1867 as follows:
"The power in question must be interpreted generously, but in a manner
consistent with its legal context, having regard to relevant historical
8
elements."
8.
9
The Court can also draw guidance from the decision in the Eskimo Reference. In
order to determine whether Eskimos are "Indians" for the purposes of section 91 (24), the
Court looked at how the term "Indian" was used in common parlance in 1867 and referred to
things like dictionary definitions, government reports, correspondence from missionaries and
other sources of information that were likely known to the Fathers of Confederation. It is
submitted that the similar evidence adduced in this case can cast some light on whether the
Fathers of Confederation intended the reference to "Indians" in section 91(24) to embrace the
Metis.
9.
However, the Attorney General submits that some caution is warranted in the use
of this material as an interpretive guide to a head of power in our Constitution. It must be kept
in mind, as the Court noted in Hunter v. Southam, th~t the task of expounding a Constitution is
6
Reference re: Same-Sex Marriage, 2004 SCC 79, [2004] 3 S.C.R. 698.
[1985] 1S.C.R.295 at344, 18 D.L.R. (4th) 321.
8
Confederation des syndicates nationaux v. Canada (Attorney General), 2008 SCC 68 at para. 30; [2008] 3 S.C.R.
511. See also Ross River Dene Council v. Canada (Attorney General), 2012 YKSC 4 at paras. 15-23, [2012] 2
C.N.L.R. 276.
9
Reference re: Eskimos, [1939] S.C.R. 104, [1939] 2 D.L.R. 417.
7
-4-
"crucially different" than that of construing a statute. 10 A Constitution is drafted with an eye
to the future and must be sufficiently flexible to allow governments to address future policy
issues that were unimaginable to the framers.11 Accordingly, a broad, liberal and generous
interpretation of constitutional terms is always warranted.
10.
This caution manifests itself in this case in two ways. First, while obviously the
views of the Fathers of Confederation about the scope of a particular power are an important
consideration, they are not determinative. 12 In this case, the evidence established that
jurisdiction over Indians was not discussed during the debates leading up to Confederation.
Therefore, there is no direct evidence about what any of the Fathers of Confederation thought
concerning the scope of the term "Indian" in section 91 (24). In the absence of direct evidence,
speculation about what the Fathers of Confederation may or may not have thought about this
issue is, it is submitted, entitled to little weight. Second, it is submitted that it would be an
error to place too much weight on statutory sources and government reports from the time. 13
While these statutes and reports are no doubt relevant, it must be kept in mind that they were
all responses to particular policy issues of the day. Their relevance to defining a term in the
Constitution, intended to determine the bounds of federal jurisdiction for all time, must
necessarily be limited. 14
11.
Also, the Attorney General disagrees with the Court of Appeal and the Trial Judge
that defining the term "Indian" in section 91(24) is somehow tied to Confederation's goals of
westward expansion and building the transcontinental railway or that a particular definition of
"Indian" under section 91(24) is required to provide constitutional support for the Metis scrip
programs established under the Manitoba Act15 and the Dominion Lands Acts. 16 The Attorney
General agrees with Canada that the Dominion Government had ample legislative jurisdiction
Hunterv. Southam Inc., [1984] 2 S.C.R. 145 at 155, 11 D.L.R. (4th) 641.
Ibid.
12
Reference re: Employment Insurance Act (Can), ss. 22 and 23, 2005 SCC 56, [2005] 2 S.C.R. 669 at paras. 9 and 40
[Re Employment Insurance].
iJ Ibid at para. 39
IC
il
14
The Attorney General agrees with Canada that in pre and post-Confederation legislation, the term "Indian" was
almost never used as an omnibus term which included the Metis. Ifthe Metis were to be included in legislation they
were specifically referred to or another generic term such as "aborigine" or even "native" was used.
15
Manitoba Act, 1870, R.S.C. 1985, Appendix II, No. 8.
16
See for e.g. Dominion Lands Act, S.C. 1879, c. 31 , s. 125(e).
-5-
under other heads of federal power in order to facilitate settlement of the west, the construction
of the transcontinental railway and to issue Metis scrip. The bulk of Rupert' s Land and the
North-Western Territory entered Confederation as a territory. Therefore, Canada had plenary
jurisdiction in this part of the country. Canada also owned all of the ungranted land
throughout the west, including Manitoba, until 193 0. The combination of Canada's legislative
jurisdiction and proprietary rights gave it ample power to deal with these issues irrespective of
the definition of"Indian" in section 91(24). 17
12.
It is the Attorney General' s position that the words of the Constitution are the most
important consideration. In this case, the word "Indian" in section 91(24) can and should be
interpreted widely. There is no reason to believe that the Fathers of Confederation would not
have intended a broad definition of"Indian" to apply to section 91(24). The Fathers of
Confederation obviously were aware that Indians constituted a diverse group of people with
different languages, cultures and degrees of civilization. They would have been aware that
many Indian communities included significant numbers of mixed blood people. There is no
reason to believe that the Fathers of Confederation intended to exclude some of these people
from the potential reach of federa1 jurisdiction over "Tndjans". They would have intended the
constitutional power to be wide and flexible so as not to create unnecessary constitutional
barriers to the Indian policies that Parliament might wish to pursue in the future. They would
have intended "Indian" to mean what "Aboriginal peoples" means in today's parlance,
reflected by section 35(2) of the Constitution Act, 1982.
13.
18
as
19
There is no doubt that section 91(24) was originally conceived as primarily a race-
based power. It was intended to allow Parliament to make special laws for a group of people
in society defined primarily, although not exclusively, by their race.
20
As the evidence in this
case clearly shows, the question of"Indian identity" is a complex one and "one size fits all"
definitions are simply not possible. Indian identity can depend on many different factors such
17
For example, Canada.also granted scrip to North-West Mounted Police members and veterans of the Boer War; see
Kirk Lambrecht, The Administration ofDominion Lands' 1870-1930 (Canadian Plains Research Centre, 1991 ), at 2729.
18
The Attorney General is not, however, relying on the principle of"progressive" interpretation.
19
being Schedule B to the Canada Act 1982 (UK), 1982, c. 11
2
Canard, supra note 4 at 207.
°
-6-
as ancestry or descent, membership in a particular group ("community acceptance"), cultural
affiliation ("following an Indian mode of life"), self-identification or even residence in a
particular locale. It is the Attorney General's position that any of these factors provide a
sufficient basis for the exercise of Parliament's jurisdiction over "Indians" under section
91(24). There is no doubt an outer limit on Parliament's jurisdiction under section 91(24), but
it is submitted that it is not necessary to determine that limit in this case.
14.
What then of the Metis of Western Canada? As indicated, by 1870 the Metis of
Western Canada had, through a process of ethnogenesis, developed into a group of people that
was separate and distinct from Indians.21 These Metis did not see themselves as Indians. 22
The Canadian government did not treat them as Indians. 23 If the Metis were considered to be
Indians at this time, the very purpose of the Manitoba Act which saw Manitoba join
Confederation as a province with its own legislature would have been defeated. There would
simply have been no reason for section 31 land grants to Metis children, if they were going to
be dealt with as Indians. 24 The Canadian Government chose to treat the Metis as citizens in
1870. It chose not to treat them as Indians. These were political choices. 25 They were not
mandated hy the Constitution. Tt is submitted that the Canadian Government could have
treated the Metis as "Indians" falling under section 91(24) in 1870. Obviously, the Metis had
Indian ancestry. Many of the Metis also had family connections to Iqdians and shared cultural
similarities with Indians. Any of these grounds would have been sufficient to regard the Metis
as Indians in 1870. And are sufficient grounds to regard Metis as Indians today.
15.
The evidence in this case establishes that throughout the 1870's and later the
dividing line between Indians and Metis was always unclear and that individuals were allowed
21
See R. v. Powley, 2003 SCC 43 at para. 10, [2003] 2 S.C.R. 207 fPowleyl; R. v. Blais, 2003 SCC 44 at para. 9,
[2003] 2 S.C.R. 236 [Blais] ; Alberta (Aboriginal Affairs and Northern Development) v. Cunningham, 2011 SCC 37 at
paras. 54 and 75, [2011] 2 S.C.R. 670 [Cunningham]; Manitoba Metis Federation Inc. v. Canada (Attorney General),
2013 sec 14 at para. 2, [2013) l S.C.R. 623 [MMF].
22
The Trial Judge's conclusion at para. 392 that James Ross's assertion in 1870 that the Metis were not Indians
somehow proves that they were, was, with respect, a serious error.
23
Trial Judgment at paras. 391, 395, 396, 398 and 406.
24
See Alexander von Gemet, "Defining ' Indians' : The Historical Context ofs. 91(24) of the Constitution Act, 1867,"
(Report prepared for Department of Justice Canada, 2011) at 145-155 [Appellant's Record, Part IV, Vol. 69].
2
~ MMF, supra note 21 at paras. 28 -29.
-7-
to move back and forth between Indian status (Treaties) and Metis status (Scrip).
26
Some
Metis were clearly considered to be Indians. It is submitted that this simple fact proves that
Parliament had jurisdiction to treat all Metis as Indians, if it so chose.
It is moreover, submitted that this approach is consistent with how other heads of
16.
federal jurisdiction have been interpreted. For example, in Tenant v. Union Bank, the Privy
Council held that Parliament's power over "banking" under section 91(15) referred to banking
in its widest sense. 27 In Northwest Falling Contractors, the Court held that Parliament's
power over "fisheries" under section 91 ( 12) included jurisdiction over shellfish, crustaceans
and marine mammals. 28 And, more recently, in Reference re: Employment Insurance Act, the
Court held that Parliament's power over "unemployment insurance" under section 91(2A)
authorized the establishment of programs for maternity and paternity leave. 29
c.
17.
Inter-Jurisdictional Immunity
It is the position of the Attorney General that any determination by the Court that
Metis are " Indians" for the purposes of section 91 (24) does not result in any immunity from
provincial laws for Metis people. This Court's recent decisions in Tsilhqot 'in Nation v. British
Columbia 30 and Grassy Narrows First Nation v. Ontario (Natural Resources)31 have made it
clear that the doctrine of inter-jurisdictional immunity has only limited application. Interjurisdictional immunity has been confined to areas already covered by precedent. Given that
there is no precedent from this Court saying that Metis are "Indians" for the purposes of
section 91(24), it is submitted that inter-jurisdictional immunity will not apply to the Metis.
Provincial laws will remain applicable unless and until Canada exercises its legislative
authority in a way that brings the doctrine of paramountcy into play.
26
Trial Judgment at paras. 373, 374, 381, 513, 515, 520 and 524.
[1894) A.C. 31 at 46; see also Canadian Pioneer Management Ltd v. Labour Relations Board ofSaskatchewan,
(1980] 1 S.C.R. 433, [1980] 3 W.W.R. 214.
28
Northwest Fa/Jing Contractors v. The Queen, [1980] 2 S.C.R. 292 at 298-300, 113 D.L.R. (3d) 1.
29
Re: Employment Insurance, supra note 12.
.
30
Tsilhqot'in Nation v. British Columbia, 20l4 SCC 44, [2014] 2 S.C.R. 256.
31
Grassy Narrows First Nation v. Ontario (Natural Resources), 2014 SCC 48, [2014] 2 S.C.R. 447; see also, Bank of
Montrea/v. Marcotte, 2014 SCC 55, [2014) 2 S.C.R. 725.
27
D.
Room for the Exercise of Provincial Jurisdiction
18.
Even if Metis are considered to be "Indians" for the purposes of section 91 (24),
they, like all people in the Province, including status Indians, remain subject to provincial
jurisdiction under section 92 of the Constitution Act, 1867. It is submitted that this means that
provinces can enact laws that specifically address Metis issues in certain circumstances. In
order to be constitutionally valid, it is submitted that such laws must satisfy the following
criteria:
1. The law must relate to one of the heads of provincial power in section 92;
2. The Metis specific aspect of the law must be sufficiently integrated into an
otherwise valid provincial legislative scheme as per this Court's directive in
Kitkatla Band v. British Columbia (Minister ofSmall Business, Tourism and
Culture); 32
3. The law must qualify as an ameliorative measure under section 15(2) of the
Canadian Charter ofRights and Freedoms as per this Court's directives in Alberta
(Aboriginal Affairs and Northern Development) v. Cunningham, R. v. Kapp and
Lovelace v. Ontario. 33
4. If Metis Aboriginal rights are engaged, the law must either not infringe the right or
must be justified under the test laid down in R. v. Sparrow; 34 and
5. There must be no conflicting federal legislation dealing with the subject which
would engage the doctrine of federal paramountcy.
Accordingly, it is submitted that concluding that Metis are section 91(24) Indians does not
deny the Province a role to play in addressing Metis issues.
E.
19.
Blais is Still Good Law
In Blais, the Court held that Metis are not "Indians" for the purpose of exercising
the hunting, fishing and trapping rights set out in the Natural Resources Transfer Agreements
32
Kitkatla Band v. British Columbia (Minister ofSmall Business, Tourism and Culture), 2002 SCC 31 at para. 58,
F002] 2 S.C.R. 146.
.
J Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada
Act 1982 (UK), 1982, c. 11; Cunningham, supra note 21; R. v. Kapp, 2008 SCC 41, (2008] 2 S.C.R. 483; Lovelace v.
Ontario, 2000 SCC 37, [2000) 2 S.C.R. 950.
34
R. v. Sparrow, [1990] 1 S.C.R. 1075, 70 D.L.R. (4th) 385.
-9-
applicable in the prairie provinces.
35
These Agreements are confirmed by the Constitution Act,
1930.36 The Attorney General agrees with the Court of Appeal that Blais is distinguishable.
Blais dealt with a different issue in a different context. 37 The issue in Blais concerned the
interpretation of a term in an agreement between Canada and the three prairie provinces. The
Court concluded that the parties did not intend these rights to extend to the Metis, but rather
that they encompassed only Indians, whose Treaty rights were recognized at the time. The
Court in Blais correctly rejected any notion of continuity of language throughout the
Constitution.
38
It is, accordingly, submitted that holding that Metis are section 91(24) Indians
is completely reconcilable with Blais. For the past ten years, Metis hunting and fishing rights
9
in Saskatchewan have been determined under the section 35 and the Powley test, not under
the Transfer Agreements. It is submitted that there is no need to upset this regime in order to
reach the conclusion that Metis are "Indians" for the purposes of section 91 (24).
F.
20.
Conclusion
In conclusion, it is the Attorney General's position that Canada's cross-appeal
should be dismissed and the Court should affirm the decision of the Court of Appeal that Metis
are ''Indians" for the purposes of section 91(24). This view is consistent with a broad, liberal,
generous and purposive interpretation of the terms of the Constitution. It recognizes that
''Indians" in section 91(24) can be defined in many ways, that the Metis are descended from
Indians and that this alone is a sufficient constitutional anchor for jurisdiction under section
91(24). Furthermore, this conclusion is warranted by the Honour of the Crown and serves the
goal of reconciliation which is at the heart of Canadian Aboriginal law. By recognizing
federal jurisdiction over the Metis, along with a robust role for the provinces to play when
3
~
36
Blais, supra note 21.
R.S.C. 1985, Appendix II, No. 26.
37
Reference re: Same-Sex Marriage, supra note 6 at para. 30.
38
Blais, supra note 21 at para. 36.
39
Powley, supra note 21; see also R. v. Laviolette, 2005 SKPC 70, [2005} 3 C.N.L.R. 202; R. v. Belhumeur, 2007
SKPC 114, 301 Sask. R. 292; R. v. Langan, 2013 SKQB 256. The Attorney General agrees with the Appellants that
the definition ofMetis for the purposes of section 91(24) is wider than the definition ofMetis for the purpose of
exercising Aboriginal rights protected by section 35 because there is no need to establish membership in a particular
community under section 91(24).
-10-
their jurisdiction is engaged, the Court will allow the unfinished business of reconciliation
with the Metis, recognized in MMF, 40 to proceed.
IV. COSTS
21.
The Attorney General does not seek costs and submits that he should not be liable
for the costs of either the Appellants, the Respondents or any of the other Interveners.
V. DISPOSITION OF THE LEGAL ISSUES
22.
The Attorney General submits that Canada's cross-appeal should be dismissed.
The Attorney General takes no position with respect to the appeal. The Attorney General also
requests permission to present oral argument at the hearing of the appeal for not less than ten
minutes.
ALL OF WHICH IS RESPECTFULLY SUBMITTED
DATED AT Regina, Saskatchewan this
/O~day of July, 2015.
Macrina Badger
40
Agent for the Attorney General for
Agent for the Attorney General
Saskatchewan
Saskatchewan
MMF, supra note 21 at para. 140.
-11-
VI.
TABLE OF AUTHORITIES
LEGISLATION
PARAGRAPH
Ij Canadian Charter ofRights and Freedoms, Part I of the Constitution Act,
18
1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11
1
!
I
1
Constitution Act, 1867, 30 & 31 Viet., c. 3, reprinted in R.S.C. 1985,
Appendix II, No. 5
I
t
19
Constitution Act, 1930, R.S.C. 1985, Appendix II, No. 26
12
Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK),
1982, c. 11
!Dominion Lands Act, S.C. 1879, c. 31, s. 125(e)
11
11
Manitoba Act, 1870, R.S.C. 1985, Appendix II, No. 8
1
The Metis Act, S.S. 2001, c. M-14.01
CASES
PARAGRAPH
14, 18
Alberta (Aboriginal Affairs and Northern Development) v. Cunningham,
2011 sec 37; [2011] 2 s.c.R. 670
5, 13
Attorney General ofCanada v. Canard, [ 1976] 1 S.C.R. 170, 52
D.L.R. (3d) 548
6
Attorney General ofOntario v. Attorney General ofCanada
(References Case), [19121 A.C. 581
17
Bank ofMontreal v. Marcotte, 2014 SCC 55, [2014] 2 S.C.R. 725
5
Brown v. British Columbia (1980), 107 D.L.R. (3d) 705, [1980] 3 W.W .R.
360 (B.C. C.A.)
16
Canadian Pioneer Management Ltd v. Lahnur Relations Board of
Saskatchewan, f1980] 1 S.C.R. 433, [1980] 3 W.W.R. 214
7
Confederation des syndicates nationaux v. Canada (Attorney General),
2008 sec 68, r2oosJ 3 s .c .R. 511
17
Grassy Narrows First Nation v. Ontario (Natural Resources), 2014 SCC 4
[201412 S.C.R. 447
I
-12-
9
Hunter v. Southam Inc., [198412 S.C.R. 145, 11 D.L.R. (4th) 641
18
IKitkat/a
Band v. British Columbia (Minister ofSmall Business, Tourism
and Culture),
2002 SCC 31, [200212 S.C.R. 146
18
Lovelace v. Ontario, 2000 SCC 37, f2000l 2 S.C.R. 950
I Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013
sec 14, [2013] 1 s.c.R. 623
I
14,20
I
16
Northwest Falling Contractors v. The Queen, [1980] 2 S.C.R. 292, 113
D.L.R. (3d) 1
19
R. v. Belhumeur, 2007 SKPC 114, 301 Sask. R. 292
R. v. BiK M DruK Mart Ltd., [198511 S.C.R. 295, 18 D.L.R. (4th) 321
!'
7
14, 19
R. v. Blais, 2003 sec 44, [20031 2 s.c.R. 236
R. v. Grumbo, [1998] 3 C.N.L.R. 172, 168 Sask. R. 78
;
1
18
R. v. KaDD, 2008 sec 41, f2008] 2 S.C.R. 483
19
R. v. LanKan, 2013 SKQB 256
1
R. v. Laviolette, 2005 SKQB 61, 260 Sask. R. 121
19
R. v. Laviolette, 2005 SKPC 70, [2005] 3 C.N.L.R. 202
14, 19
R. v. Powley, 2003 SCC 43, [2003] 2 S.C.R. 207
18
R. v. Sparrow, [199011S.C.R.1075, 70 D.L.R. (4th) 385
10, 16
Reference re: Employment Insurance Act (Can), 2005 SCC 56, [2005] 2
S.C.R. 669.
8
Reference re: Eskimos, [1939] S.C.R. 104, [1939] 2 D.L.R. 417
I
6, 19
Reference re: Same-Sex Marriage, 2004 SCC 79, [2004]
3 S.C.R. 698
Ross River Dene Council v. Canada (Attorney General), 2012 YKSC 4,
j
.
7
[2012) 2 C.N.L.R. 276
16
Tenantv. Union Bank, f1894] A.C. 31
I
-13-
I Tsilhqot 'in Nation v. British Columbia, 2014 sec 44, [2014] 2 S.C.R. 256[
SECONDARY SOURCES
17
PARAGRAPH
14
Alexander von Gemet, "Defining 'Indians'; The Historical Context of s. i
91 (24) of the Constitution Act, 1867" (Report prepared for Department of
Justice Canada, 2011)
5,6
Peter Hogg, Constitutional Law of Canada, 5th ed. Supplemented
(Toronto: Carswell, 2007)
11
Kirk Lambrecht, The Administration ofDominon Lands '1870-1930
(Canadian Plains Research Centre, 1991)
I
!
I
5
K. M. Lysyk, "The Unique Constitutional Position of the Canadian
Indian" (1967) 45 Can. Bar. Rev. 513