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Court File #:

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

Kawartha Nishnawbe First Nation


and Chief Kris Nahrgang, on his own behalf and on behalf of
Kawartha Nishnawbe First Nation
Plaintiffs
- and -

Attorney General of Canada


and
Her Majesty the Queen in Right of Ontario
Defendants

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 an Ontario lawyer acting for
you must prepare a statement of defence in Form 18A prescribed by the Rules of Civil
Procedure, serve it on the plaintiff’s lawyer or, where the plaintiff does not have a lawyer,
serve it on the plaintiff, and file it, with proof of service in this court office, WITHIN
TWENTY DAYS after this statement of claim is served on you, if you are served in Ontario.
If you are served in another province or territory of Canada or in the United States of
America, the period for serving and filing your statement of defence is forty days. If you are
served outside Canada and the United States of America, the period is sixty days.
Instead of serving and filing a statement of defence, you may serve and file a notice of
intent to defend in Form 18B prescribed by the Rules of Civil Procedure. This will entitle
you to ten more days within which to serve and file your statement of defence.

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IF YOU FAIL TO DEFEND THIS PROCEEDING, JUDGMENT MAY BE GIVEN AGAINST
YOU IN YOUR ABSENCE AND WITHOUT FURTHER NOTICE TO YOU. IF YOU WISH TO
DEFEND THIS PROCEEDING BUT ARE UNABLE TO PAY LEGAL FEES, LEGAL AID MAY
BE AVAILABLE TO YOU BY CONTACTING A LOCAL LEGAL AID OFFICE.

Date: December 12, 2018 Issued by ..................................................


Local registrar

Address of
court office: Ontario Superior Court of Justice
393 University Ave., 10th Floor,
Toronto, ON
M5G 1E6

TO: Ontario Crown Law Office Civil


720 Bay St., 8th Floor
Toronto, ON M7A 2S9
Tel: 416-326-4008
Fax: 416-326-4181

and to:

Ontario Regional Office


Department of Justice Canada
120 Adelaide Street West
Suite #400
Toronto, Ontario M5H 1T1
Tel: 416-973-0942
TDD: 416-973-2496

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Claim

1. The Plaintiffs claim against the Defendants the following relief:

(a) a declaration that the Crown has failed in its duty to act honourably

i) by removing the Plaintiffs’ ancestors from membership in their original


bands, forcing them off their reserve homelands, and then denying Kawartha
Nishnawbe a land base comparable to the reserves of the Indian Act bands;
ii) by attempting to extinguish the Plaintiffs’ Mississauga identity and culture
through involuntary enfranchisement, followed by ongoing refusal to
recognize the Plaintiffs as a First Nation community or allow them a secure
land base or provide them basic services;
iii) by denying and refusing to respect the Plaintiffs Treaty rights;
iv) by refusing to negotiate an agreement with the Plaintiffs similar to that which
the Defendants recently entered into with the “status” Williams Treaty bands;
v) in the case of Canada only, by excluding the Plaintiffs from access to the
Specific Claims Tribunal by means of narrowly defining eligible “First
Nations” in the Specific Claims Tribunal Act to exclude First Nation
communities which have never been “bands” under the Indian Act; and
vi) in the case of Canada, by excluding Kawartha Nishnawbe from the First
Nations Advisory Circle on the Trent-Severn Waterway;

(b) a declaration that Canada and Ontario have violated and continue to violate the
equality rights of the Plaintiffs, contrary to section 15 of the Canadian Charter of
Rights and Freedoms,

i) by denying them a land base or reserve;

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ii) by attempting to extinguish the Plaintiffs’ Mississauga identity and culture
by alienating them from their reserve homes, followed by ongoing refusal
to recognize the Plaintiffs as a First Nation community or allow them a
secure land base or provide community services;
iii) by denying their Treaty harvesting rights;
iv) by refusing to consult and negotiate with Kawartha Nishnawbe;
v) by refusing to recognize Kawartha Nishnawbe as a First Nation community
and denying them access to programs and services available to all “status”
band communities;
vi) by blocking the Plaintiffs’ community development opportunities on the
grounds that they are “squatters” with no rights to their lands;
vii) in the case of Canada only, by excluding the Plaintiffs from access to the
Specific Claims Tribunal by means of narrowly defining eligible “First
Nations” in the Specific Claims Tribunal Act to exclude First Nation
communities which have never been “bands” under the Indian Act; and
viii) in the case of Canada, by excluding Kawartha Nishnawbe from the First
Nations Advisory Circle on the Trent-Severn Waterway;

all on the prohibited ground that Kawartha Nishnawbe is not an Indian Act band;

(c) a declaration that the Defendants owe a fiduciary duty to Kawartha Nishnawbe to
protect their Treaty rights with respect to harvesting and their right to live on a
secure land base, and their right to preserve and protect their Mississauga identity
and culture, and that they have failed and continue to fail to discharge that duty;

(d) a declaration that the Defendants have breached the Treaty rights of the Plaintiffs,
contrary to section 35 of the Constitution Act, 1982, by denying their Treaty
harvesting rights and their right to live on a secure land base within their territory
and by attempting to exterminate their Mississauga identity and culture;

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(d) a declaration that the Defendants have a duty to negotiate with Kawartha
Nishnawbe to address the recognition of their rights and compensation for decades
of denying those rights;

(e) In the alternative, if this Honourable Court finds that any of the rights of the
Plaintiffs were validly extinguished, a declaration that the Crown failed in its duty
to act honourably and failed to adequately compensate the Plaintiffs;

(f) damages for the ongoing infringement of Treaty rights and equality rights and for
failing to consult with the Plaintiffs or compensate the Plaintiffs for the long
standing and ongoing denial of their rights;

(g) exemplary damages in an amount to be determined by the Court to express this


Honourable Court’s condemnation of the Defendants’ ongoing, deliberate and
callous denial of the Plaintiffs’ rights;

(h) an order that this Honourable Court will retain jurisdiction in order to supervise
compliance with its orders;

(i) interim relief, including an order for advance costs in any event of the cause;

(j) their costs of this action on a solicitor and client basis; and

(k) such further and other relief as to this Honourable Court may seem just.

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Introduction

2. Kawartha Nishnawbe is a community founded in the 1910s by several Mississauga families

who were unjustly exiled from their homes on Indian reserves, in a brutal and racist policy

called “enfranchisement” which aimed to exterminate Indigenous culture and identity and

force Indigenous people to assimilate into the “superior” white culture.

3. The “non-status Indians” established a new Indigenous community in the heart of their

traditional territory at Burleigh Falls, but both Canada and Ontario have consistently treated

them as nothing more than “squatters” with no land rights. For over 40 years, both

governments even refused to provide any elementary school education for the children of the

“Burleigh Falls Indians”, in an effort to impoverish them and drive them off their land.

4. In 2000, the Supreme Court of Canada recognized Kawartha Nishnawbe as a traditional

Mississauga community which has “experienced layer upon layer of exclusion and

discrimination”, yet both governments have ignored those findings and continue to callously

ignore the Plaintiffs, marginalizing them and refusing to recognize them as a community, or

even respect the Treaty rights which the Plaintiffs were promised in 1818, and which were

recognized and affirmed in an Ontario court in 2002.

5. The Plaintiffs state that the facts outlined in this claim, which will be proved at trial, establish

that the Defendants have grossly and intentionally violated their fiduciary duty to protect and

uphold the Plaintiffs’ Treaty rights, intentionally violated the equality rights of the Plaintiffs,

and egregiously failed to uphold the honour of the Crown.

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The Parties

6. Kawartha Nishnawbe First Nation is a Mississauga community and part of the broader

Mississauga Nation. The Mississauga are a sub-group of the Ojibway Nation. The

Mississauga and Ojibway are part of a larger grouping of Aboriginal nations called

“Algonkian”. The Algonkians include the Ojibway, Cree, Chippewa and other First Nations

groups. The current population of Kawartha Nishnawbe is about 1,100.

7. Chief Kris Nahrgang lives in Burleigh Falls and has been Chief of Kawartha Nishnawbe

since 2000. His great-grandfather was Jack Jacobs, the first Chief of Kawartha Nishnawbe.

Chief Nahrgang is also an accomplished sculptor, inventor, archeologist and the co-host of

Future History on Aboriginal Peoples Television Network (APTN).

8. The Defendant, the Attorney General of Canada (“Canada”), is the representative of Her

Majesty the Queen in Right of Canada, pursuant to Section 23(1) of the Crown Liability and

Proceedings Act, R.S.C. 1985, c. C-50, as amended.

9. The Defendant, Her Majesty the Queen in Right of Ontario (the “Province”), claims

unencumbered Crown Title to Kawartha Nishnawbe territory, pursuant to Section 109 of the

Constitution Act, 1867.

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Background

10. Since time immemorial, or at least since well before the Royal Proclamation of 1763, the

people of Kawartha Nishnawbe, along with others of the Mississauga Nation, have occupied,

protected, used and governed the area of what is now central Ontario, including the area of

Burleigh Falls, Lovesick Lake, Stoney Lake and Mud Lake. They have always held a deep

spiritual connection to their lands and their identity and culture as a Mississauga community

is intimately tied to this connection.

The Royal Proclamation of 1763

11. On October 7, 1763, King George III issued a binding Royal Proclamation for the

administration of British territories in North America. The Proclamation is a foundational

document marking the beginning of Canada's historic link with Great Britain and British

parliamentary institutions. It was also important in establishing the core elements of the

relationship between First Nation people and the Crown, recognizing First Nation rights in

Canada and defining the treaty-making process that is still used.

12. The Proclamation forbids the taking of Indigenous lands and resources without their consent,

which can only be obtained through a formal treaty making process:

"And whereas it is just and reasonable, and essential to Our Interest and the
Security of Our Colonies, that the several Nations or Tribes of Indians, with whom
We are connected, and who live under Our Protection, should not be molested or
disturbed in the Possession of such Parts of Our Dominions and Territories as, not
having been ceded to, or purchased by Us, are reserved to them, or any of them, as
their Hunting Grounds. …”

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We do hereby strictly forbid, on Pain of Our Displeasure, all Our loving Subjects
from making any Purchases or Settlements whatever, or taking Possession of any
of the Lands above reserved, without Our especial Leave and Licence for that
Purpose first obtained.”

13. A Government of Canada webpage says: “Since its issuance in 1763, the Royal Proclamation

has served as the basis of the treaty-making process throughout Canada. The protocols and

procedures it established led to the orderly opening of the lands for settlement and the

establishment of an ongoing Treaty Relationship between First Nations and the Crown.”

14. The Proclamation remains legally binding in Canada and its status was formally reaffirmed

in s. 25 of the Canadian Charter of Rights and Freedoms.

The Rice Lake Treaty, aka Treaty No. 20

15. At the beginning of the eighteenth century, the Mississauga Nation was in firm control of

most of southern and central Ontario. The area provided a rich source of fish, plants, such as

wild rice, and wildlife upon which the people depended.

16. At the end of the War of 1812 southern Ontario was flooded with new settlers from the UK

and the US. The Imperial Crown and the new Province of Canada urgently needed to acquire

land for the settlers, and most land in Ontario was still owned by First Nations. The Crown

was also concerned about the possibility of the Mississauga Nation, which had previously

been allied with the French against the British, forming an alliance with the new American

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government to protect their lands against the British. For both reasons, a treaty with the

Mississauga was urgently needed by the Crown.

17. In 1818 the Mississauga ancestors of Kawartha Nishnawbe and representatives of the Crown

met near Port Hope and signed Treaty No. 20, also known as the Rice Lake Treaty. The

Treaty covers a huge area of 1,951,000 acres, or almost 7,900 square km.

18. The laws of the Mississauga did not, and still do not, permit the sale, alienation or destruction

of their land, but they could, and did, agree in Treaty 20 to share their land with the Crown

and settlers. In Treaty 20 the Mississauga agreed to allow settlers to live in their territory, but

they retained exclusive title to the islands in the territory for themselves and future

generations of Mississauga, and retained for themselves the right to harvest fish, plants and

wildlife throughout their traditional territory.

19. The english-only written version of Treaty 20 does not mention harvesting rights. However,

in 1981 the Ontario Court of Appeal held that oral history, confirmed by the minutes of the

Treaty negotiations and correspondence from the Treaty Commissioners, proved that the First

Nation signatories had been promised during the Treaty negotiations that the Treaty would

protect their harvesting traditions. The Court found that these promises constitute a part of

the Treaty, even though they were never added to the written text of the Treaty. (R. v. Taylor

and Williams, 34 OR (2d) 360).

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20. The written text of the Rice Lake Treaty also does not mention “reserves”, but it is clear that

the First Nations signatories were also assured by the Crown that they would continue to

have the right to live in security within their traditional territory. The Mississauga also

retained exclusive ownership of the islands within their territory.

21. In 1829 the Mud (Curve) Lake reserve was established for the members of the Mud (Curve)

Lake band, including the ancestors of the Plaintiffs. The settlement eventually became a

formal “reserve” under the Indian Act in 1889. The reserve was a Crown requirement for

fulfillment of the Rice Lake Treaty.

22. The Plaintiffs, together with other citizens of the Mississauga Nation, held a communal

interest in the lands they agreed to share with the Crown in 1818, and a communal interest in

the reserves which were established following the Mississauga Treaties with the Crown. This

interest gave rise to a fiduciary duty to the Plaintiffs and also engages the Honour of the

Crown, which arises in all matters where the Crown takes or permits actions which could

infringe on the Plaintiffs’ right to live on a reserve or exercise their Treaty rights.

23. The Rice Lake Treaty created clear and solemn obligations on the part of the Crown towards

the Plaintiffs as the Crown, through the Treaty, assumed discretionary control over the lands

and resources of the Mississauga people and undertook to protect their rights and interests.

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24. The Curve Lake Band and Kawartha Nishnawbe did not exist as separate bands in 1818.

Indeed, there was no Indian Act at that time and therefore no Indian Act “bands” or “status

Indians” or “non-status Indians”. Prior to the enactment of the first Indian Act in 1876, only

traditional “bands” existed, all comprised of families with a shared connection to their land.

The distinct Mississauga bands which now exist, whether Indian Act status bands such as

Curve Lake or non-status traditional bands such as Kawartha Nishnawbe, are all descendants

from the “clans and tribes” which entered into Treaty in 1818.

25. Until the early 1900s, most of the families which comprise the Kawartha Nishnawbe band

were part of the Curve Lake band, while the rest were members of one of the three other

Mississauga bands (Alderville, Hiawatha and Scugog) whose ancestors had collectively

participated in the 1818 Treaty.

26. Like other members of the Curve Lake band, the Plaintiffs’ ancestors lived on Island 31 at

Burleigh Falls during the summer months, between May and November, where they fished,

hunted, worked as fishing guides for tourists, and cut wood for settlers and farmers.

27. Most of the islands in Lovesick and Stoney Lakes belonged to the Curve Lake Band. Island

31, also known as Centre Island, was located at the juncture of these two lakes. The Island

was well located for the Mississauga men who worked as guides during the summer months,

and was rich in game and fish.

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28. In the late fall, the residents of Island 31 would return to their reserves at Curve Lake or

Scugog, where they could access essential community services and re-connect with the rest

of their community. The reserve was always an essential home base where the Mississauga

could practise and preserve their culture and enjoy a measure of security of tenure while non-

Indigenous settlers poured into their territory around them.

The 1856 Treaty and Island 31, aka Centre Island

29. n 1856, a Treaty, known as Surrender #78, was taken from the Mississauga of Rice Lake

(Hiawatha), Mud Lake and Scugog Lake. The islands within their territory were surrendered

for sale, with the important exception of the islands occupied by the Mississauga, which were

reserved for their exclusive use. The Plaintiffs are descendants of the signatories of this

Treaty. Island 31 was one of those islands which were occupied by the Mississauga,

specifically the ancestors of the Plaintiffs, and was reserved by them under the Treaty.

30. Despite the 1856 Treaty, Island 31, which had been reserved by the Department of Indian

Affairs for “an unspecified band”, was purchased by the Department of Railways and Canals

for $200 in 1878. The purchase was authorized by Order-in-Council and was described as an

“expropriation”.

31. Although it was purchased for $200, there is no record that a valuation of the Island had ever

been made, nor evidence that the sale proceeds were ever deposited to the Band’s account.

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The Indian Department recognized that it was an island “reserved for Indians” but considered

it “disposable.”

32. In 1888, the Mud (Curve) Lake Band petitioned the Department of Indian Affairs to stop

selling islands in the Kawartha Lakes area. They continued to use the area for hunting,

fishing and camping but were being denied access to their islands by non-Natives claiming

control. The Department agreed to reserve some islands for the Mississauga, although they

seemed to believe that all of the islands had somehow been previously surrendered to the

Crown. The Secretary of DIA informed the local Indian Agent that "The Department is,

however, anxious to meet the wishes of the Indians…".

33. Correspondence pertaining to the reservation of islands indicates the extent to which islands

in the area had been sold, squatted upon, or taken for canal purposes. The Department

acknowledged that “…some of the islands which were patented had been previously reserved

for the Indians…”.

Enfranchisement and Exclusion

34. Prior to the 1850s, First Nations communities exclusively controlled their own membership

without interference from Canada or colonial authorities.

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35. The concept of enfranchisement was first introduced in 1857 when the province of Canada

passed An Act to Encourage the Gradual Civilization of Indian Tribes in this Province, and to

Amend the Laws Relating to Indians:

WHEREAS it is desirable to encourage the progress of Civilization among


the Indian Tribes in this Province, and the gradual removal of all legal
distinctions between them and Her Majesty's other Canadian Subjects, and
to facilitate the acquisition of property and of the rights accompanying it, by
such Individual Members of the said Tribes as shall be found to desire such
encouragement and to have deserved it : Therefore, Her Majesty, by and
with the advice and consent of the Legislative Council and Assembly of
Canada, enacts as follows :….

36. The Act provided incentives for members of bands to renounce their band membership and

become full Canadian citizens.

37. The voluntary enfranchisement introduced in the Gradual Civilization Act of 1857 was based

on the assumption that Indigenous people would be eager to surrender their legal and

ancestral identities for the “privilege” of gaining full Canadian citizenship and assimilating

into Canadian society. Individuals or entire bands could enfranchise. If a man with a family

enfranchised, his wife and children would also automatically be enfranchised.

38. Voluntary enfranchisement was a complete failure as only one Indigenous person in all of

Canada applied to enfranchise between 1857 and 1876. Overwhelmingly, First Nations

rejected, protested and resisted assimilation, proving they were unwilling to abandon their

cultural and legal identities, as anticipated by the colonial authorities. Not a single

Mississauga person voluntarily enfranchised.

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39. In 1876, Canada passed the first Indian Act, and began imposing involuntary

enfranchisement on First Nation communities, in addition to other blatantly racist and

assimilationist polices aimed at exterminating Indigenous cultures. The Act contained a new

definition of “Indian” which was narrow, sexist and racist, and was aimed at pushing

Indigenous people away from their reserve based communities, which the Defendants viewed

as “primitive”, and compelling them to assimilate into the “superior” white, Christian society.

40. Federal officials acknowledged that the removal of Indigenous people from band

membership and from their reserve homes by re-classifying them as “non-Indian” was

largely intended to reduce the Crown’s financial obligations to First Nations, contrary to the

Crown’s Treaty obligations. The threat of involuntary enfranchisement was also used to

intimidate Indigenous activists who opposed enfranchisement and the theft of Native land.

41. Communities were suddenly and brutally divided as members of reserve-based bands were

classified by powerful federal Indian Agents (the Act gave them the authority of both police

and Justices of the Peace) as either registered “band members” or unregistered “non-status

Indians”. All non-status individuals were removed from band lists and only “status” band

members had the right to live on the reserve, vote in band council elections, and receive

benefits from the federal government, including medical services. “Non-status Indians” were

excluded and forced to leave their home communities.

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42. Under the involuntary enfranchisement policy, Mississauga and other Indigenous people

could be enfranchised for serving in the Canadian armed forces, gaining a college education,

or for leaving reserves for long periods – for instance, for employment. In addition. any

“status Indian” woman who married a “non-status Indian” man was automatically

enfranchised, along with her children. They could also be enfranchised if their status Indian

husbands died or abandoned them.

43. The explicitly racist policy was aimed at exterminating Indigenous culture while reducing

Crown expenditures by arbitrarily reducing the number of “Indians”. In 1920 the notorious

Duncan Campbell Scott, Deputy Superintendent General of Indian Affairs. appeared before a

House of Commons committee and left the members in no doubt about the intention behind

compulsory enfranchisement which was going stronger than ever in 1920:

“It has been stated that the franchise provided for under this Bill is a compulsory
franchise, and I have been asked the question whether that is so. I have been asked that
question in the hope, apparently, that I would endeavour to conceal that fact, but it is a
compulsory system, and I hope the committee will support it.”

44. In his statement to the committee, Scott also spoke of the general objectives of Indian policy

as he saw them:

"Our object is to continue until there is not a single Indian in Canada that has not been
absorbed into the body politic and there is no Indian question, and no Indian
Department, that is the whole object of this Bill.”

Canadian Indian Policy During the Inter-War Years, 1918-1939, by John Leonard Taylor,
published by DIAND, 1984

45. The threat of compulsory enfranchisement was also used to threaten and intimidate any

Indigenous activists who attempted to organize resistance to enfranchisement and the theft of

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Native lands. Scott wrote to Superintendent General Meighen in 1920: ”It would also check

the intrigues of smart Indians on the reserves, who are forming organizations to foster these

aboriginal feelings, and to thwart the efforts and policy of the Department.” He gave the

example of Fred Loft, a Mohawk WWI veteran. "Such a man should be enfranchised.” Loft

and his League of Indians of Canada opposed enfranchisement, as did all other Indigenous

groups and individuals who made their views known.

46. In 1981, the UN ruled that Canada’s enfranchisement policy violated Article 27 of the

International Covenant on Civil and Political Rights, which Canada had signed in 1976,

because the policy resulted in the forced removal of former band members from their

homelands with the intention of erasing their indigenous culture and identity. The decision

was made by the Human Rights Committee of the UN, which had been established by the

Covenant. Sandra Lovelace v. Canada, [1981] 2 H.R.L.J 158, 68 I.L.R. 17.

47. The 1997 Report of the Royal Commission on Aboriginal Peoples said: “Enfranchisement is

a euphemism for one of the most oppressive policies ever adopted by the Canadian

government in its history of dealings with Aboriginal peoples.” The Supreme Court of

Canada has also condemned the enfranchisement provisions of the Indian Act as a brutal,

discriminatory tool used to divide and weaken First Nation communities and alienate the

“enfranchised” from their birthright.

Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 SCR 203,
1999 CanLII 687 (SCC)

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48. In a 2013 decision, the Canadian Human Rights Commission said: “…the enfranchisement

provisions of the Indian Act were based on colonial assumptions that Aboriginal peoples

would, over time, abandon their traditional cultures and ways of life, and be absorbed into

civilized Euro-Canadian society. These assumptions, and the government’s policy of

encouraging enfranchisement, were oppressive, assimilationist, and racially discriminatory.”

Andrews et al. v. Indian and Northern Affairs Canada, 2013 CHRT 21 (CanLII)

Enfranchisement and the “Burleigh Falls Indians”

49. The classification of First Nations people as “Indian” or “non-Indian” (aka “non-status”), and

the enfranchisement (removal from band lists and reserves), was arbitrary and had nothing to

do with whether or not a person was “full-blooded” Indian, or whether they lived according

to Indigenous customs. Any Indian woman who married a non-status Indian or non-Native

man was automatically enfranchised and removed from her community, along with her

children. Conversely, white women who married status Indian men became “status Indians”

with full rights and benefits. Countless people were classified as “status Indians” despite

having no Native blood whatsoever, while thousands of people of full Indigenous blood were

re-classified as “non-status” or “Halfbreed” and forced out of their communities.

50. Both parents of Jack Jacobs, the first Chief of Kawartha Nishnawbe, were Mississauga and

members of the Curve Lake band. His parents were married according to Mississauga

custom before Jack’s birth in 1877 or 1878, but they had not yet been married in a Christian

church, so Jack was labelled “illegitimate” by the all-powerful Indian Agent at Curve Lake.

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51. The Indian Agent refused to list Jack Jacobs as a band member on the grounds that he was

“illegitimate”. While his parents and siblings and their families remained band members and

remained on the Curve Lake reserve all their lives, Jack and his wife, who was also

Mississauga but lost her status when she married non-status Jack, and their children were

forced to leave the reserve around 1910.

52. Jack Jacobs was soon joined by Buster Brown, Horace Taylor, Elijah Taylor, Isaac Johnson,

Edith Marsden, Abraham Taylor, Josh Johnson, Norah Taylor, John Irons, Rose Irons, Scotty

Hoggarth, and others, along with all of their children. The current members of Kawartha

Nishnawbe are all descendants of these first year-round residents of Burleigh Falls who had

been banished from their reserve homes by the Indian Agent.

53. Losing the right to live on reserve was a devastating blow against the “Burleigh Falls

Indians”, as the Plaintiffs were then known. For Indigenous people, reserves represent the

last tangible evidence that they are the original people of Canada. Reserves nurture a sense

of history and culture where Indigenous languages, spiritual beliefs, and values are shared.

Although conditions of poverty, poor health, insufficient housing, and insufficient social and

health services still exist on many reserves, the reserve and the traditional values and the

kinship affiliation it nurtures contribute to the members’ sense of identity and sense of self.

The reserve is a spiritual - as well as physical - home, despite its privations.

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The New Community of “Burleigh Falls Indians”

54. Despite being fully Indigenous Mississauga, the “non-status Indians” who settled at Burleigh

Falls were often labelled “Half-Breeds” or Metis to demean them and distinguish them from

the “status Indians” who were members of reserve-based Indian Act bands.

55. Determined to preserve their identity as Mississauga people, despite enormous challenges

they now faced after being cruelly removed from their reserve communities, they settled on

Island 31 in the juncture of Stony Lake and Lovesick Lake, in Harvey Township.

56. On Island 31 the “Burleigh Falls Indians” worked hard to clear land and build houses, while

supporting their families by working as guides, fur trappers and loggers.

57. Only a few years after being exiled from their reserve homes, the people of Kawartha

Nishnawbe were again forcibly removed from their homes when the Trent Canal dam and

lock at Burleigh Falls were built, apparently between 1912 and 1915. Although they had

cleared the land and built houses on the Island, they were forced to relocate to their present

village site on Lots 4 and 5, Concession 1 of Harvey Township, in order to make room for a

canal construction workers’ camp on the lands that they had cleared. Their new village

became known as The Campground, comprised of tents and shacks.

58. Much of the land where Kawartha Nishnawbe first settled at Burleigh Falls is now

underwater as a result of the flooding brought by the dams. In addition to raising water

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levels and submerging much of the land around Burleigh Falls, the Defendants have

permitted, and continue to permit, industry, housing and cottages, and the use of toxic

chemicals in the Lakes, all of which have led to a dramatic deterioration in the ecological

health of the region which the Plaintiffs have relied upon for centuries to sustain themselves

and their distinctive Mississauga culture. The Plaintiffs were never consulted or

compensated in connection with this destruction.

59. From the beginning, the new Burleigh Falls / Kawartha Nishnawbe band had its own

leadership (Jack Jacobs was the acknowledged leader of the community) and a distinct

political, social and economic life from the Curve Lake reserve. The members of the new

band were almost all “non-status” First Nations people whose ancestors and close relatives

were members of the Curve Lake band, although some of their spouses came from one of the

other Mississauga communities, Alderville, Scugog or Hiawatha.

60. As they could no longer live on reserves, the people of Kawartha Nishnawbe built their

homes and their own First Nation community on lands which the Defendants regard as

Crown land. The people of Kawartha Nishnawbe continue to exist on these lands despite

being treated as squatters with no legal interest in the land.

61. For most of their history they have been simply called the “Burleigh Falls Indians” by their

non-Indigenous neighbours. However, since the early 1980s, the Burleigh Falls community

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has consistently used the name “Kawartha Nishnawbe First Nation” to reflect their

Mississauga heritage and culture.

62. Although the Defendants’ efforts to extinguish the Plaintiffs’ Mississauga culture and identity

have failed, they have caused enormous suffering and damage which is difficult to quantify.

After more than 100 years with no land to call home, Kawartha Nishnawbe’s people struggle

to maintain their traditions, their language and other aspects of their identity, and they

continue to suffer from collective anxiety as a result of having no secure homeland, and

living under constant threat of eviction.

The Williams Treaties

63. In the 1910s, the Crown investigated long standing claims by the Mississauga and Chippewa

Nations that they had never surrendered their title to huge swaths of land throughout much of

southern and central Ontario, and came to the conclusion that those claims were well

founded. This resulted in confusion and uncertainty regarding land titles.

64. Ontario and Canada then negotiated the Williams Treaties of 1923 with seven Indian Act

band communities, including the Curve Lake, Scugog, Alderville and Hiawatha Mississauga

communities. One of the Williams Treaties was signed with those four Mississauga

communities while the other identical Williams Treaty was signed with the Chippewa

communities of Rama, Christian Island and Beausoleil.

23
65. In the english-only written text of the Williams Treaties, the seven band signatories

purportedly agreed to surrender all of their rights and title outside of their reserves to the

Crown in exchange for $500,000 in total. The validity of the Treaties was upheld by the

Supreme Court of Canada in 1994, but in the past few years Canada and Ontario have

changed their positions regarding the Williams Treaties and now apparently accept the view

of the seven status bands that the Treaties did not extinguish their harvesting rights under the

Rice Lake Treaty. (R. v. Howard, [1994]CanLII 86, SCC)

66. Jack Jacobs attempted to participate in the 1923 Treaty discussions at Curve Lake to voice

his community’s opposition to the surrender of harvesting rights, but he was excluded

because he and his community were “non-status”. The Burleigh Falls Indians received none

of the cash benefits under the Williams Treaties.

67. Despite the fact that the Plaintiffs’ ancestors did not participate in the Williams Treaties, the

Defendants have consistently taken the position that the Plaintiffs have no Aboriginal or

Treaty rights. They have maintained that the Plaintiffs’ Treaty rights were somehow

implicitly extinguished when they were stripped of status and membership in the status bands

and forced to live off reserve, or alternatively that they were extinguished by the Williams

Treaties, despite the fact that they did not endorse those Treaties or receive any payments

under them.

24
Further Marginalization and Exclusion of the “Burleigh Falls Indians”

68. The Defendants have at all times been aware of the community known as the “Burleigh Falls

Indians”, and have been aware of the damage and suffering caused by their callous actions,

including stripping the Plaintiffs of Indian Act status and band membership and forcing them

to live off reserve with no harvesting rights and no recognition as a community.

69. During the early years of the Burleigh Falls community, the brilliant and hard working Jack

Jacobs managed to buy a large old building which the community converted into a Hotel.

Jacobs used the Somerset Hotel as a base for the men of his community who worked as

fishing guides for the tourists. Jack also employed the Burleigh Falls women as cooks and

maids and employed young men as “chore boys”. This was the only period of relative peace

and prosperity ever enjoyed by the people of Burleigh Falls.

70. The federal officials who were responsible for the Trent-Severn Waterway at that time made

it clear that they wanted the “squatters” off of “their” land, and expressed strong disapproval

of a hotel being owned and operated by the Burleigh Falls Indians. Non-Indigenous hotel

operators and tourist outfitters in the area also opposed the Native-owned and operated hotel

on the grounds that it allegedly brought “undesirable elements” into the area, but in fact they

simply wanted to exclude and squash a competitor. The non-Natives wanted the Mississauga

people to work as guides and low wage day workers in their businesses, but they did not want

them living year-round in the area or owning their own businesses.

25
71. In the early 1920s, the Somerset Hotel was lost in mysterious circumstances. The Burleigh

Falls community strongly suspected foul play, but police refused to investigate after being

advised by federal officials that “Burleigh Falls Indians” were mere “squatters” who Canada

intended to evict anyway.

72. The loss of the Hotel, which had been the community’s pride and joy, and main employer,

was a devastating blow to the community. They were again at the mercy of federal officials

and working as seasonal day labourers for non-Native employers.

73. Rather than recognizing them as a community with collective rights to their land, the

Defendants began in 1928 to issue the families at Burleigh Falls a patchwork of temporary

leases and licenses of occupation. In a 1932 report to Ottawa, the Indian Agent for Curve

Lake described the “Burleigh Falls Indians” as a very poor, but extremely hard working,

traditional Mississauga community whose members lived a “hand-to-mouth” existence in the

community they had built on the rocky shores of Lovesick Lake.

74. During the 1920s and 30s, the Burleigh Falls Indians gradually became aware that even their

traditional harvesting rights, guaranteed by the 1818 Treaty, were no longer recognized by

the Plaintiffs. They faced severe repression as game wardens particularly targeted them.

Evidence at trial will recall how the Burleigh Falls Indians frequently had to flee through the

forests as they were pursued and harassed for attempting to feed their families. Their

26
guiding businesses were also suppressed as the Defendants sought to crush every opportunity

for self-reliance and self-respect.

75. Throughout their existence as a distinct Mississauga community, the “Burleigh Falls Indians”

have been neglected and ignored by the provincial government and the local Townships

created by provincial legislation, on the grounds that “Indians” are a federal responsibility,

while the federal government has ignored and neglected them on the grounds that Canada

only accepts responsibility for Indian Act bands and “status Indians”.

76. During the 1930s, the community sank deeper into poverty as the traditional economy of

hunting, fishing, guiding, trapping and logging had collapsed with the suppression of their

Treaty rights, and pressure from local industry. They could no longer support themselves

through traditional harvesting as their Treaty rights were suppressed, on the discriminatory

grounds that they were no longer “Indians”, and they were forced to obey strictly limited

hunting seasons and bag limits. Meanwhile, both governments refused to provide any

support or services for the community.

The Defendants Refuse to Provide Any Education for the Children of Burleigh Falls

77. Canada and Ontario remained committed to a policy of forced assimilation by refusing to

recognize the “squatters” and even refusing to provide the children of Kawartha Nishnawbe

with elementary school education or medical services. Between 1910 and 1951, more than an

entire generation of “Burleigh Falls Indians” received virtually no education as the

27
Defendants appeared intent on deliberately impoverishing the community in order to drive

them off their land.

78. No local government or school board would accept responsibility for the “Indians”, who they

saw as a federal responsibility, and both Defendants refused to provide even elementary

school education in Burleigh Falls. The community had to rely on volunteers and a

missionary to provide occasional basic education and health services for their members in a

lean-to shack. The majority of this “lost generation” received essentially no education.

79. In 1940, a concerned school trustee from Harvey Township petitioned Queen’s Park for a

meeting to address the dire situation in Burleigh Falls, noting that at least 40 Indigenous

children had no school and no teacher, while the once proudly self-reliant Burleigh Falls

Indian community was sinking deeper and deeper into abject poverty.

80. Sandy Jacobs, Buster Brown and other community leaders eventually travelled to a meeting

in Toronto in 1940, only to be told by the Ministry of Education that they should look to the

churches or Ottawa. Ontario would not provide a school for “Indian” children.

81. Ontario’s position changed in 1946 and an OiC was was passed to fund a primary school for

“the children of Indian families” of Burleigh Falls in 1946. The school had an all-white

appointed board of trustees and opened in 1951. It operated for fourteen years.

28
82. In 1965, the province transferred the Burleigh Falls school to the Harvey Township school

board, and in 1968 the school board closed the school and sold the building. Kawartha

Nishnawbe children are now bussed to public schools in neighbouring towns. No bussing or

other transportation was available to the community between 1915 and 1951.

83. Canada provides full funding for the education of status Indians on reserves, but has never

provided any funding or support whatsoever to the Mississaugas of Burleigh Falls, despite

being aware at all times that the children of this impoverished First Nation community did

not have access to any provincially funded schools.

More Threats to Evict the “Burleigh Falls Indians”

84. In 1939, Harvey Township petitioned the federal government to evict the Burleigh Falls

Indians from their homes. On May 31, 1939, the General Superintendent of Canals for the

Department ofTransport, E. B. Joshua, wrote to A. L. Killaly, Superintending Engineer of the

Trent Canal in Peterborough to inform him of the cancellation of licenses to Mississauga

people at Burleigh Falls:

With reference to the cancellation of licenses to S. Jacobs, W.


Jacobs, I. Johnston, E. Brown, A. Taylor and G. Hoggarth who are
being evicted from the parcels of Trent Canal reserve land near
Burleigh Falls, care must be taken to ensure that none of these
persons is permitted to locate on other Trent Canal reserve lands.

85. The “squatters” managed to retain a lawyer who appeared in court on their behalf in

Peterborough. Although the “Burleigh Indians” were apparently not allowed to enter the

29
courthouse, their lawyer reported to them that the eviction attempt had been defeated or

withdrawn and told them they could return to their homes.

86. In the early 1970s, the Trent-Severn Waterway authority again informed the community that

they would be evicted “within a decade” to accommodate a park planned by the Canal. At

the same time, the Canal authorities dramatically increased the annual lease fees for the

residents. Many Kawartha Nishnawbe members refused to pay, despite the threat of eviction.

87. In a 1977 interview conducted by a Trent University student, then Chief Sandy Jacobs

described meeting with a group of MPs in Ottawa the previous year. Chief Jacobs described

the anxiety felt by his whole community as they lived in constant fear of having their homes

expropriated and demolished.

88. Jacobs was clearly astonished and disheartened to learn that the MPs knew nothing about

Kawartha Nishnawbe and were unaware of the fact that they had been impoverished and

made landless by the deliberate actions of the Defendants, and apparently were completely

unaware of the fact that thousands of “non-status” Indigenous people had seen their rights

suppressed by the Defendants in a deliberate effort to exterminate them as a distinct people:

I was to a meeting last year in February in Ottawa talking to four of the Member of
Parliament people.And they started asking me some questions which I answered about
fishing and so on. And they asked me, "Where were you born? What country were
you born in?"…

And I says, "We have no country, the government has taken our country. So at this
time when we were in Ottawa I asked those fellows -- they know everything,they
should -- I asked them what are they going to do with theIndians, if it's true what I

30
hear. That they're going to tear the houses down, and the shacks down, or bulldoze
them off.That it's going to be made into a park, park land on this site. And their prices
has been going up, their rent, their rent for the land, and their taxes and so on has been
going up and up.And it's pretty hard on some of those old people like myself to
manage, to get ends meet, to earn a decent living.

So they... I asked them down there, I says, "All I want to know at this time, while I
have a chance to speak to you," I says, "where are you going to put all the Indians if
you’re going to put them off the land where they were born, where they're living?" I
says, "Where are you going to put them?And that's all I'd like to know is your
ideas."So one fellow says, "That's something new to me. I've never heard such a
thing." So I quit just about there.

But anyway, they... the fishing and hunting, we obey the rules, the white rules, the
white man's rules. We don't fish or hunt whenever we want to.And those days as non-
status Indian. If we should get a chance to get our rights back, we certainly would
have a wonderful time to make ends meet, because we can eat pretty well everything
we wish at any time in the year, I would think. The status Indians, they've had a
wonderful go with the government.They don't pay taxes, they don't, they've got land
that was given to them once upon a time. That is just the statusIndians, and they're
getting along much better than we are.They go and buy a suit, or go and buy a car,
why they don't pay taxes and all that and that saves quite a bit of money. But us
people, us non-status Indians, we're Indians just as much as they are but we certainly
pay taxes, and no place more or less to call our own like the reserve.

Interview Transcript in Ontario Archives. (underling added)

89. Due to the uncertainty of land tenure and lack of available land for building, most Kawartha

Nishnawbe members have been forced to live outside of the community. Those who do live

in Burleigh Falls must live with the constant threat of eviction.

Bill C-31

90. In the wake of the Sandra Lovelace case at the UN, and the adoption of the Canadian

Charter of Rights and Freedoms, the Indian Act was amended by Bill C-31 in 1985 to

finally end enfranchisement and allow some “non-status” individuals to be registered as

“status” Indians. However, these measures had virtually no impact on the Plaintiffs because

their community was still not recognized as a community or band and they still have no land

31
base for their people to live on. For the Plaintiffs, the critical issue is not whether individual

members are “status” or “non-status”, but rather the recognition of their community and

their right to a land base for their community.

91. Following Bill C-31, the Plaintiffs imagined and hoped that Canada might want to correct the

injustices which had been inflicted on their community, and they again attempted to engage

the Defendants in negotiations towards establishing a reserve and band status, or any kind of

secure land base for their members. However, after several years of low level discussions

which raised the Plaintiffs’ hopes but never rose to the level of substantive negotiations, both

Defendants walked away from discussions with Kawartha Nishnawbe in 1992, informing

them that they would not negotiate either self-government or land tenure with them. Each

government claimed that the other was primarily responsible for addressing Kawartha

Nishnawbe’s claims while providing absurd, contradictory and racist reasons for once again

abandoning and neglecting the Plaintiffs.

92. The Curve Lake band council passed a resolution in 1987 which states that the Curve Lake

reserve cannot accommodate “new” members who regained status under Bill C-31

amendments, and declaring that the Curve Lake band supports the establishment and

recognition of a separate band and land base for Kawartha Nishnawbe.

32
Kawartha Nishnawbe is Recognized by the Supreme Court, but the Defendants Continue
to Ignore the Plaintiffs and their Rights

93. In 1994, the government of Ontario awarded a casino license to the “First Nations of

Ontario”, to be located on the Rama reserve, but then declared that only status bands would

be included in the profit sharing scheme. Kawartha Nishnawbe joined with four other

landless non-status communities to challenge their exclusion as a violation of their equality

rights, contrary to s. 15 of the Charter. The Supreme Court found that the plaintiffs have

suffered “layer upon layer of exclusion and discrimination” by both Ontario and Canada, but

nevertheless held that their exclusion from a share of the Casino profits was not

discriminatory in this case because the casino was characterized as essentially a business

arrangement between the province and the status bands, not a government program or

service. (Lovelace v. Ontario, [2000] 1 S.C.R. 950)

94. Despite holding that their exclusion from the casino project did not violate s. 15 of the

Charter, the Court strongly suggested that the exclusion of non-status First Nation

communities from programs and services ordinarily available to status bands will generally

be considered discriminatory.

95. The Court rejected the racist and demeaning description of Kawartha Nishnawbe by Canada

and Ontario as a mere “voluntary association” or “unrecognized group” rather than a First

Nation community. The Court found that Kawartha Nishnawbe is in fact “a First Nation

community with a traditional Mississauga form of government and deep ancestral roots in

33
the Mississauga Nation. Their ancestral, community, political and social structures are

family - or clan-based, where families have been linked together by shared use of lands and

common social interests.” (Lovelace, supra, p. 12) (underlining added).

96. The Court noted that Kawartha Nishnawbe is similar to reserve based communities insofar as

they both face high rates of unemployment, poverty, poor housing, and serious disadvantages

in the areas of health and eduction, in addition to facing the same stereotyping and prejudice

as other Aboriginal peoples. However the Court went on to find that, in addition to those

disadvantages, the people of Kawartha Nishnawbe have been “uniquely disadvantaged” as a

result of being landless and non-status:

70. Apart from this background, the two appellant groups face a unique set of
disadvantages. Although the two appellant groups emphasize their respective cultural and
historical distinctness as Métis and First Nations peoples, both appellant groups submit
that these particular disadvantages can be traced to their non-participation in, or exclusion
from, the Indian Act. These disadvantages include: (i) a vulnerability to cultural
assimilation, (ii) a compromised ability to protect their relationship with traditional
homelands; (iii) a lack of access to culturally-specific health, educational, and social
service programs, and (iv) a chronic pattern of being ignored by both federal and
provincial governments. These submissions were clearly supported in the findings of the
Report of the Royal Commission on Aboriginal Peoples, vol. 3, supra, at p. 204:

In addition to the gap in health and social outcomes that separates


Aboriginal and non-Aboriginal people, a number of speakers pointed to
inequalities between groups of Aboriginal people. Registered (or status)
Indians living on-reserve (sometimes also those living off-reserve) and
Inuit living in the Northwest Territories have access to federal health
and social programs that are unavailable to others. Since federal
programs and services, with all their faults, typically are the only ones
adapted to Aboriginal needs, they have long been a source of envy to
non-status and urban Indians, to Inuit outside their northern
communities, and to Métis people....

and at p. 225:
Equity, as we use the term, also means equity among Aboriginal
peoples. The arbitrary regulations and distinctions that have created
unequal health and social service provision depending on a person’s
status as Indian, Métis or Inuit (and among First Nations, depending on
residence on- or off-reserve) must be replaced with rules of access that

34
give an equal chance for physical and social health to all Aboriginal
peoples....

71. Furthermore, the appellants have emphasized that these disadvantages have been
exacerbated by continuing unfair treatment perpetuated by the stereotype that they are
“less aboriginal”, with the result that they are generally treated as being less worthy
of recognition, and viewed as being disorganized and less accountable than other
aboriginal peoples.

Lovelace, supra, paragraphs 70-71. (underlining added)

97. Despite these findings by the Supreme Court, both Canada and Ontario continue to ignore

Kawartha Nishnawbe, regarding them not as a community, but merely a group of squatters

with no right to live in their homes, and no funding or services of any kind. The Defendants

continue to periodically threaten to evict the Plaintiffs from their homes.

The Johnson Case and Treaty Harvesting Rights

98. Until 2002, both Canada and Ontario took the position that members of Kawartha Nishnawbe

had no harvesting rights or other Treaty rights, simply by virtue of having been stripped of

Indian Act “status”, despite the fact that the Indian Act never actually addressed Treaties or

Treaty rights. They further argued that, even if the Treaty harvesting rights of Kawartha

Nishnawbe members had survived their loss of Indian Act status, they were extinguished by

the Williams Treaty of 1923, despite the fact that Kawartha Nishnawbe had no part in the

Treaty and had received none of the benefits.

99. In the 2002 case of R. v. Joe Johnson, a member of Kawartha Nishnawbe was charged with

illegally fishing without a provincial license within his community’s traditional territory. He

relied on his harvesting rights under the 1818 Treaty, but Ontario argued that his family’s

35
rights had been extinguished when Canada stripped them of Indian Act status and

membership in a status band, or by the Williams Treaties.

100. The Ontario Court of Justice heard expert testimony from both the defence and the Crown

and ultimately rejected both of Ontario’s arguments. The Crown’s expert historical evidence

was found to be riddled with significant errors, and the report’s author acknowledged that he

had never visited Burleigh Falls or met any members of the community. The Court ruled that

the members of Kawartha Nishnawbe retain their harvesting rights under the Rice Lake

Treaty of 1818, and that the rights of Kawartha Nishnawbe members were not extinguished

by the Williams Treaty, or by their loss of Indian Act status.

101. Several months after the Court’s ruling in Johnson, Ontario notified Mr. Johnson that they

intended to appeal the decision, and asked Mr. Johnson to consent to an extension of time for

filing the appeal. Counsel for Mr. Johnson immediately agreed to the Crown’s request, but

the appeal was later abandoned by Ontario without explanation. In fact, no notice of appeal

was ever served.

102. Despite the result in the Johnson case, and the despite the clear admonition by the Supreme

Court of Canada in Lovelace that “non-status” First Nation communities have been wrongly

denied equality with “status” bands, both Canada and Ontario have continued to callously

ignore the Plaintiffs and their rights and refused to negotiate an agreement to clarify the

extent of their rights.

36
103. Despite the fact that the Court in Johnson clearly upheld the Plaintiffs’ Treaty right to

harvest within their traditional territory, the Defendants have failed to consult with the

Plaintiffs before undertaking or permitting activities which impact on their rights, or failed to

consult adequately. On those occasions where they do offer some consultation, it is almost

always practically impossible for Kawartha Nishnawbe to participate because the Defendants

have refused to provide the Plaintiffs with any resources.

Kawartha Nishnawbe Struggles to Survive as a Mississauga Community While Pleading


for Justice

104. Hunting, fishing, trapping and other traditional harvesting activities are vitally important to

the unique culture and identity of the Mississauga people, including Kawartha Nishnawbe, in

addition to being a vital source of food for a poor, marginalized Indigenous community.

105. In addition to economic losses, the Plaintiffs have suffered the loss of their language and

culture and enormous anguish and humiliation as a result of the Defendants denying their

Treaty rights and even denying their existence as a First Nation community.

106. Ironically, despite being completely self-reliant and receiving no benefits at all from the

Defendants, and even being denied the Treaty rights they were solemnly promised in 1818,

the Plaintiffs have had to endure generations of demeaning and racist stereotypes as “lazy

Indians, always with their hands out for government benefits.” The same false and

37
demeaning stereotypes have been applied to all Indigenous people in Canada, but they are

particularly destructive when the victims are members of landless “non-status” communities

who are also regarded as “less Aboriginal” than the “status” bands and their members.

107. In 1970, Sir Sanford Fleming College commissioned a study on “the aspirations and

experiences of some Southern Ontario Indians in relation to education”. The researcher was

shocked by the conditions of the “Burleigh Falls Indians” and described a community which

was largely shunned by both white society and the “status” First Nations. The researcher

found very low levels of education (most adults had less than grade 4) and extreme poverty

in the community, and noted that they often faced harsh and blatant racism from their non-

Indigenous neighbours, including local businesses, schools and government officials, and

even local churches, who held them up as “bad examples”. (“Red Hopes and White Reality”,

by Marlene Brant Castellano, 1970, Sir Sanford Fleming College).

108. The researcher described a community of people who, despite their poverty, were

extremely generous and hard working, and who were humiliated by offers of charity,

including donations of second hand clothes. The people of Kawartha Nishnawbe have

always wanted opportunities to succeed, not handouts or charity.

109. The researcher described a community which had struggled for decades to have their

children educated, only to be met by disinterest and outright racism from officials, as well as

from their non-Native neighbours. Many members of the community had lost all hope of

38
their community ever having access to education and employment opportunities and had

withdrawn into alcohol addiction to soothe their pain:

“Evaluating the responses of the Burleigh Falls Indians, one might draw the
conclusion that these people live in poverty and isolation frequently anesthetized
by alcohol, as a consequence of their own choice. This researcher is more inclined
to conclude that their non-participation is the only sane attitude to adopt toward a
society which has effectively denied them education, employment and a basis for
self-respect.”

110. On January 9, 1975, Elder Margaret Spencely wrote to both Defendants on behalf of the

Plaintiffs and asked them to meet with the community to hear their history and their humble,

modest plea for fairness and justice. The letter made it clear that the “Burleigh Falls

Indians”, asked for very, very little - they simply wanted a deed to 5 acres of land for their

homes. The letter pleads:

“In the interests of justice for a group that, through no fault of their own, is at the
mercy of the federal government; in the interest of compassion for families who
desperately want their own little place in the sun; in the interest of fairness to the
past native peoples who did not understand legal documents; in the interest of
Canadian families who want a home in Canada, we urge you to give us a hearing
and to grant this simple request for building lots, to the historical residents of
Burleigh Falls.”

The Plaintiffs’ Efforts to Improve their Lives and Preserve their History are Blocked by
Canada

111. In 2011, the Plaintiffs considered a project to generate electricity from the fast flowing

water in Perry’s Creek, which runs through Burleigh Falls. They partnered with a private

company which builds small hydro generating facilities to develop a proposal for a “run-of-

the-river” turbine which would have minimal environmental impact while generating

electricity which they could both use and sell to supply the grid. The project had the

potential to provide badly needed revenue to Kawartha Nishnawbe and the community

39
worked hard throughout 2011 and 2012 with their partners to develop the proposal and

submit it to Parks Canada in their capacity as custodians of the Trent-Severn Waterway.

112. Canada acknowledged that the project appeared to be an excellent use of the water and that

it fit within their plans and priorities for use of the water. However, Parks Canada also

informed Kawartha Nishnawbe that they would not approve the project unless the Curve

Lake band approved of it. Reluctantly, Kawartha Nishnawbe and their partners agreed to

approach Curve Lake with the proposal.

113. In May, 2013, the Plaintiffs learned that the Curve Lake band had endorsed the project and

entered into a partnership to develop it. However, Parks Canada and Curve Lake had decided

that the project would proceed without the Plaintiffs. Canada had assured the Curve Lake

band and their private sector partners that there was no need to even consult with Kawartha

Nishnawbe, let alone include the Plaintiffs as partners in the project. In fact, Canada strongly

preferred to exclude the Plaintiffs, in keeping with their long standing policy of intentionally

impoverishing the “Burleigh Falls Indians” in order to induce them to leave their land.

114. When the Plaintiffs learned that they would be excluded from the project which they had

initiated, and which would be built in the heart of their community, they informed Parks

Canada that they regard this incident as yet another example of Canada discriminating

against them on the grounds that they are not an Indian Act band. The Plaintiffs also

informed the project proponents that any attempt to build this project in Burleigh Falls

40
without their involvement would be met by non-violent resistance from Kawartha Nishawbe.

It appears that the project has been abandoned.

115. In an effort to preserve his people’s history, Chief Kris Nahrgang became a self-taught

underwater (scuba) archaeologist in the 1990s. He has recovered numerous artifacts from the

lakes around Burleigh Falls where the Plaintiffs’ ancestors lived and worked before the area

was flooded, including pottery, arrowheads, fishing equipment and human remains.

116. However, because they have no reserve and no recognition as a community, the Plaintiffs

have faced huge challenges to keep their historic artifacts within their community, as both

Defendants have complex laws governing archeology and the handling of artifacts. Bands

with reserves have fully funded cultural centres and museums to legally house and display

their historic artifacts, but Kawartha Nishnawbe has nothing comparable.

117. When one of his early finds was reported by local news media, the ancient ceramics were

seized by Parks Canada, which manages the Trent-Severn Waterway, on .the grounds that all

artifacts found in the water are the property of Canada. Parks Canada also insisted that such

artifacts must be housed in a secure museum or cultural centre.

41
Further Examples of Discrimination by Canada Against Kawartha Nishnawbe

118. In addition to being denied a reserve and the benefits associated with having a secure land

base, Kawartha Nishnawbe members are denied the benefits of numerous programs and

services which Canada provides only to “status” bands with reserves, including:

a) First Nation communities which are recognized as Indian Act bands all receive
core funding from Canada under a program called Band Support Funding. The BSF
program provides basic support to allow bands to maintain a band office and small staff.
This in turn allows bands to more efficiently manage programs and services for their
members. BSF also supports the political representation function of band councils.
Kawartha Nishnawbe has never received BSF or any other core funding. The community
struggles to act as a community government, with an all-volunteer Chief and Council. It is
virtually impossible for Kawartha Nishnawbe to engage in consultations with industry and
other governments regarding projects which impact on their lands and resources.

b) The status bands all receive funding from Canada for the construction and
renovation of homes for band members through the First Nation On-Reserve Housing
Program, without having to apply. Kawartha Nishnawbe is excluded because they have
no reserve and are labeled “non-status”. Kawartha Nishnawbe’s housing needs are
extremely dire, with most of their members being forced to find housing in Peterborough
or other towns because they have no homes and no land for them in Burleigh Falls.

c) Status bands also receive assistance through theFirst Nations Infrastructure


Investment Plan (FNIIP) which “…helps Indigenous and Northern Affairs Canada
(INAC) assess infrastructure needs and strategically plan infrastructure investments in
First Nation communities across Canada. It supports healthy and safe First Nation
communities, and the economic success of First Nations.” Kawartha Nishnawbe is also
excluded from this program because they are not a “status” band.

d) Status bands all receive funding from Canada under the Capital Facilities and
Maintenance (CFM) program which Aboriginal Affairs and Northern Development
Canada (AANDC) describes as “the main pillar of the Government of Canada's effort to
support community infrastructure for First Nations on reserve. The program funding,
which totals over $1 billion per year, is invested in four main areas: housing, education,
water and wastewater systems, and other infrastructure (roads and bridges, fire protection,
electrification, community facilities, etc..). The main objectives of the CFM program are
to make investments that:

* maximize the life cycle of physical assets;


* mitigate health and safety risks;
* ensure assets meet applicable codes and standards; and
* ensure assets are managed in a cost-effective and efficient manner.”

e) Status bands have access to the Community Opportunities Readiness Program


from AANDC. Canada describes the Program as follows: “To take advantage of economic
opportunities, an Aboriginal community must be ready in a number of ways. They may

42
need start-up funds to undertake pre-development activities. They may need a partner or
business leader who understands the involved industry. Or, they may need in-house
expertise and management skills. The Community Opportunity Readiness Program
addresses the financial needs of Aboriginal communities when they are in pursuit of, and
wish to participate in, an economic opportunity. The program is a consolidation of the
former community economic opportunities program, the major projects investment fund,
and the community-based components of the Aboriginal business development program.
By helping communities become equipped to participate in an economic opportunity,
AANDC can increase the participation of Aboriginal people in Canada's economy overall
and improve the prosperity of Aboriginal communities and individuals.”Kawartha
Nishnawbe’s members suffer from high rates of unemployment and have a dire need for
economic development in their community, but they are excluded because they are not a
“status” band.

f) Canada also maintains the Lands and Economic Development Services


Program, which “provides targeted funding for lands and economic development support
services to help communities achieve the objectives of the Program. This includes services
that prevent the contamination of reserve lands and other lands under AANDC's custodial
responsibility.” Eligible activities under the Lands and Economic Development Services
Program include “initiatives that support the development of land and resources under
community control as well as access to opportunities from lands and resources not under
community control; and initiatives that support compliance with the statutory provisions
of the Indian Act and the processing of land management instruments under the Indian
Act.”Only status bands can access the Lands and Economic Development Services
Program. Despite the dire needs of the Plaintiff community for similar assistance, the
program is also only available to “status” bands and Kawartha Nishnawbe is excluded.

g) Bands are also eligible to apply for funding through the Professional and
Institutional Development Program which “funds projects that develop the capacity of
First Nations and Inuit communities to perform core functions of government such as
planning and risk management, leadership, basic administration and financial
management.” Needless to say, the all-volunteer band council of Kawartha Nishnawbe is
not eligible to apply because they are a “non-status” community.

h) Bands also have access to the Capital Facilities and Maintenance Program
(CFMP). “Contributions to eligible recipients under the Capital Facilities and
Maintenance Program (CFMP) provide financial assistance to plan, construct and/or
acquire and operate and maintain community capital facilities and services (infrastructure,
including schools) and housing (residential) consistent with approved policies and
standards. This assistance is provided to First Nations on reserves, as well as First Nations
and other eligible recipients on Crown land or recognized Indian land.” Kawartha
Nishnawbe is not eligible because they are “non-status”.

i) Bands also receive support from Canada through the Employee Benefits
program which “provides funding to eligible First Nation and Inuit employers to support
the employer's share of contributions to eligible employees' pension plans. These may
include the costs of employer sponsored pension plans, the Canada/Quebec Pension Plan
(CPP/QPP) and any additional employee benefits.” This program also “supports eligible
First Nation and Inuit employers in attracting and keeping the qualified staff needed to
manage and deliver programs and services taken over from the federal government. The
program enables eligible employers to establish competitive employee benefit packages
comparable to other employers (such as federal, provincial and municipal governments,
school boards, etc.). This also supports Indigenous and Northern Affairs Canada (INAC)’s
goal of transferring control of program management and program delivery to band

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communities.”Kawartha Nishnawbe could benefit enormously from the Employee
Benefits program, but they are arbitrarily excluded because they are “non-status”.

j) The “Assisted Living Program provides funds to identified service providers to


help provide non-medical, social support services to people living on-reserve with chronic
illness or disability, to help them maintain their independence.” This program is also only
available through status bands and only for their on-reserve members. Non-status
communities like Kawartha Nishnawbe are completely shut out, simply because they have
no reserve and no Indian Act band status.

k) The income and property of Status Indians living on reserve is exempt from
taxation or seizure under s. 87 of the Indian Act. The Supreme Court has said that the
purpose of this provision is intended to protect the interests of Indigenous people in their
reserve based land and personal property. The Plaintiffs must pay all the same taxes as
their non-Indigenous neighbours.

l) In or around 2010, Parks Canada formed a First Nations Cultural Advisory


Circle to consult with and advise Parks Canada on matters related to the Trent Severn
Waterway. Only the status bands were allowed to participate. Despite the fact that their
community has been impacted more than any other by the Waterway, Kawartha
Nishnawbe has been arbitrarily excluded, with no explanation given other than that the
decision was “political” and based on the fact that Kawartha Nishnawbe has no reserve
lands and no recognition as a “status” band.

The Specific Claims Tribunal Act Arbitrarily Bars the Plaintiffs From Submitting a Claim

119. In 2008 Canada established the Specific Claims Tribunal in order to “provide justice for

First Nations claimants and certainty for government, industry and all Canadians.” The

Tribunal can hear and adjudicate claims which might otherwise be barred by limitation

periods, and can award up to $150 million per claim. Status bands can submit their land

claims to the Tribunal, which functions as a court of record, but non-status First Nation

communities like Kawartha Nishnawbe are arbitrarily prohibited from filing claims by the

narrow definition of “First Nation” in the Specific Claims Tribunal Act:

First Nation means


(a) a band as defined in subsection 2(1) of the Indian Act; or
(b) a group of persons that was, but is no longer, a band within the meaning of
paragraph (a) and that has, under a land claims agreement, retained the right to
bring a specific claim; and

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(c) a group of persons that was a band within the meaning of paragraph (a), that is
no longer a band by virtue of an Act or agreement mentioned in the schedule and
that has not released its right to bring a specific claim.

120. Canada also provides funding for status bands to research, negotiate and litigate land

claims, but no funding is available for Kawartha Nishnawbe or other “non-status”

communities. The predecessor of the Specific Claims Tribunal, the Indian Specific Claims

Commission, also refused to consider claims by First Nation communities which are not

Indian Act bands. No reason has ever been provided for excluding the Plaintiffs, apart from

Canada simply arbitrarily stating that the federal government is only concerned with “status

Indians” and Indian Act bands.

121. In recent years, under the Specific Claims process, the status Mississauga bands have been

awarded compensation for the damage caused by rising water levels which resulted from the

construction and operation of the Trent-Severn Waterway. Despite the fact that they were

impacted more than any other community, the Plaintiffs are arbitrarily excluded from the

Specific Claims Tribunal and have no opportunity for redress, except through this

Honourable Court.

The Defendants’ New Position on the Williams Treaties and the New Agreement with the
Williams Treaties Bands

122. The Defendants have recently signed a new agreement with the “status” Williams Treaties

bands which restores the harvesting rights which they had, according to the Defendants,

surrendered in 1923. This means that those bands again have the right to harvest wildlife

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and fish within the areas covered by those Treaties, including Kawartha Nishnawbe’s

territory.

123. The Defendants not only excluded Kawartha Nishnawbe from their negotiations, they

flagrantly ignored the well established law that holders of Treaty rights must be consulted

regarding initiatives that could impact those rights, by failing to even consult with

Kawartha Nishnawbe. According to a joint news release, the terms of the negotiated

settlement include:

- Financial compensation of $1.11 billion ($666 million by Canada and $444


million by Ontario) to be shared by the seven status bands;

-An entitlement for each of the “status” First Nation to add up to 11,000 acres of
land to their reserve land base subject to Canada’s Additions to Reserve/Reserve
Creation policy;

-Recognition of the (status) First Nations’ continuing treaty harvesting rights and a
commitment to continue to work together to implement these rights; and

-A commitment by Canada and Ontario to provide an oral and written statement


of apology to the (status) Williams Treaties First Nations.

Needless to say, none of these benefits or compensation will go to Kawartha Nishnawbe,

nor do the Defendants have any plans to apologize to Kawartha Nishnawbe.

124. In September, 2018, the Plaintiffs again wrote to both Defendants asking them to negotiate

with Kawartha Nishnawbe to establish a secure land base for their members. In a separate

communication, the Plaintiffs also asked the Defendants whether they would negotiate an

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agreement with Kawartha Nishnawbe similar to the agreement they have recently

concluded with the “status” Williams Treaties bands. As of the date of issuing this claim,

neither government had responded, other than with one sentence emails stating that they

had received the Plaintiffs’ requests and would give them “every consideration”.

125. The Plaintiffs state that their Treaty rights and equality rights have been systematically and

deliberately violated for over 100 years, and that this discrimination continues daily as both

Defendants continue to refuse to recognize them as a First Nation community. In the words

of the Supreme Court in Lovelace, the Plaintiffs continue to suffer “…layer upon layer of

exclusion and discrimination.” (Lovelace, p. 90).

The United Nations Declaration on the Rights of Indigenous People (UNDRIP)

126. The Plaintiffs state that this Honourable Court should be guided by the United Nations

Declaration on the Rights of Indigenous People (UNDRIP) in considering whether the

conduct of the Defendants as outlined in this claim constitutes violations of the Treaty

rights and equality rights of the Plaintiffs, and whether the conduct of the Defendants has

upheld the Honour of the Crown.

127. The UN General Assembly overwhelmingly adopted the Declaration on September 13,

2007 after more than twenty years of deliberation and debate. The Declaration is the most

comprehensive international human rights instrument to specifically address Indigenous

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peoples’ economic, social, cultural, political, civil, spiritual and environmental rights. In its

own words, the Declaration sets out minimum standards necessary for the “dignity,

survival and well-being” of Indigenous peoples.

128. The Declaration calls on states to honour and respect the Treaties and other agreements

they have entered into with Indigenous peoples, to protect Indigenous languages and

cultures, and to uphold Indigenous peoples’ rights to lands, territories and resources.

129. Both Defendants have very publicly proclaimed that they are committed to implementing

the UNDRIP within their respective jurisdictions, and both governments have used this

professed commitment as a means to curry favour with voters, Indigenous peoples, and

with the international community.

130. Bill C-262, An Act to ensure that the laws of Canada are in harmony with the United

Nations Declaration on the Rights of Indigenous Peoples, has recently passed three

readings in the House of Commons and is in the Senate as of the date of issuing this claim.

The preamble of Bill C-262 contains the following:

“Whereas the Parliament of Canada recognizes that the principles set out
in the United Nations Declaration on the Rights of Indigenous Peoples
should be enshrined in the laws of Canada,”

131. The Act would commit Canada to working with First Nations organizations bring Canada’s

laws and policies into conformity with the Declaration.

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132. Given the facts of this case, the Defendants’ pious claims that they respect and abide by the

UNDRIP ring hollow, and may be seen as monumentally hypocritical from the point of

view of the Plaintiffs. The Defendants’ conduct towards the Plaintiffs has been, and

remains, wholly contrary to virtually all of the principles which they have pledged to

uphold in the UNDRIP.

133. By enfranchising the people of Kawartha Nishnawbe and separating them from their lands

and their home communities with the intention of exterminating their Mississauga culture

and identity, and then refusing to recognize them as a distinct First Nation community with

harvesting rights and a right to land and self-determination, and denying them access to

basic education and health services, and programs and services for “status” First Nations,

including the Specific Claims Tribunal, and by refusing to negotiate any kind of self-

government agreement or harvesting rights agreement with them, the Defendants have

clearly and intentionally violated the following provisions of the UNDRIP:

Article 3
Indigenous peoples have the right to self-determination. By virtue of that right they freely
determine their political status and freely pursue their economic, social and cultural
development.

Article 4
Indigenous peoples, in exercising their right to self- determination, have the right to
autonomy or self- government in matters relating to their internal and local affairs, as well as
ways and means for financing their autonomous functions.

Article 8
1. Indigenous peoples and individuals have the right not to be subjected to forced
assimilation or destruction of their culture.
2. States shall provide effective mechanisms for prevention of, and redress for:

(a) Any action which has the aim or effect of depriving them of their integrity as distinct
peoples, or of their cultural values or ethnic identities;

49
(b) Any action which has the aim or effect of dispossessing them of their lands, territories or
resources;
(c) Any form of forced population transfer which has the aim or effect of violating or
undermining any of their rights;
(d) Any form of forced assimilation or integration;
(e) Any form of propaganda designed to promote or incite racial or ethnic discrimination
directed against them.

Article 9
Indigenous peoples and individuals have the right to belong to an indigenous community or
nation, in accordance with the traditions and customs of the community or nation concerned.
No discrimination of any kind may arise from the exercise of such a right.

Article 10
Indigenous peoples shall not be forcibly removed from their lands or territories. No
relocation shall take place without the free, prior and informed consent of the indigenous
peoples concerned and after agreement on just and fair compensation and, where possible,
with the option of return.

Article 11
1. Indigenous peoples have the right to practise and revitalize their cultural traditions and
customs. This includes the right to maintain, protect and develop the past, present and
future manifestations of their cultures, such as archaeological and historical sites,
artefacts, designs, ceremonies, technologies and visual and performing arts and
literature.
2. States shall provide redress through effective mechanisms, which may include
restitution,developed in conjunction with indigenous peoples, with respect to their
cultural, intellectual, religious and spiritual property taken without their free, prior and
informed con

Article 14
1. Indigenous peoples have the right to establish and control their educational systems and
institutions providing education in their own languages, in a manner appropriate to their
cultural methods of teaching and learning.

Article 18
Indigenous peoples have the right to participate in decision-making in matters which would
affect their rights, through representatives chosen by themselves in accordance with their
own procedures, as well as to maintain and develop their own indigenous decision-making
institutions.

Article 19
States shall consult and cooperate in good faith with the indigenous peoples concerned
through their own representative institutions in order to obtain their free, prior and informed
consent before adopting and implementing legislative or administrative measures that may
affect them.

Article 20
1. Indigenous peoples have the right to maintain and develop their political, economic and
social systems or institutions, to be secure in the enjoyment of their own means of
subsistence and development, and to engage freely in all their traditional and other
economic activities.
2. Indigenous peoples deprived of their means of subsistence and development are entitled
to just and fair redress.

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Article 23
Indigenous peoples have the right to determine and develop priorities and strategies for
exercising their right to development. In particular, indigenous peoples have the right to be
actively involved in developing and determining health, housing and other economic and
social programmes affecting them and, as far as possible, to administer such programmes
through their own institutions.

Article 25
Indigenous peoples have the right to maintain and strengthen their distinctive spiritual
relationship with their traditionally owned or otherwise occupied and used lands, territories,
waters and coastal seas and other resources and to uphold their responsibilities to future
generations in this regard.

Article 26
1. Indigenous peoples have the right to the lands, territories and resources which they have
traditionally owned, occupied or otherwise used or acquired.
2. Indigenous peoples have the right to own, use, develop and control the lands, territories
and resources that they possess by reason of traditional ownership or other traditional
occupation or use, as well as those which they have otherwise acquired.
3. States shall give legal recognition and protection to these lands, territories and resources.
Such recognition shall be conducted with due respect to the customs, traditions and land
tenure systems of the indigenous peoples concerned.

Article 27
States shall establish and implement, in conjunction with indigenous peoples concerned, a
fair, independent, impartial, open and transparent process, giving due recognition to
indigenous peoples’ laws, traditions, customs and land tenure systems, to recognize and
adjudicate the rights of indigenous peoples pertaining to their lands, territories and resources,
including those which were traditionally owned or otherwise occupied or used. Indigenous
peoples shall have the right to participate in this process.

Article 28
1. Indigenous peoples have the right to redress, by means that can include restitution or,
when this is not possible, just, fair and equitable compensation, for the lands, territories
and resources which they have traditionally owned or otherwise occupied or used, and
which have been confiscated, taken, occupied, used or damaged without their free, prior
and informed consent.
2. Unless otherwise freely agreed upon by the peoples concerned, compensation shall take
the form of lands, territories and resources equal in quality, size and legal status or of
monetary compensation or other appropriate redress.

Article 29
1. Indigenous peoples have the right to the conservation and protection of the environment
and the productive capacity of their lands or territories and resources. States shall
establish and implement assistance programmes for indigenous peoples for such
conservation and protection, without discrimination.

Article 32
1. Indigenous peoples have the right to determine and develop priorities and strategies for
the development or use of their lands or territories and other resources.
2. States shall consult and cooperate in good faith with the indigenous peoples concerned
through their own representative institutions in order to obtain their free and informed
consent prior to the approval of any project affecting their lands or territories and other

51
resources, particularly in connection with the development, utilization or exploitation of
mineral, water or other resources.
3. States shall provide effective mechanisms for just and fair redress for any such activities,
and appropriate measures shall be taken to mitigate adverse environmental, economic,
social, cultural or spiritual impact.

Article 33
1. Indigenous peoples have the right to determine their own identity or membership in
accordance with their customs and traditions. This does not impair the right of
indigenous individuals to obtain citizenship of the States in which they live.
2. Indigenous peoples have the right to determine the structures and to select the
membership of their institutions in accordance with their own procedures.

Article 37
1. Indigenous peoples have the right to the recognition, observance and enforcement of
treaties, agreements and other constructive arrangements concluded with States or their
successors and to have States honour and respect such treaties, agreements and other
constructive arrangements.

Article 39
Indigenous peoples have the right to have access to financial and technical assistance from
States and through international cooperation, for the enjoyment of the rights contained in this
Declaration.

Article 40
Indigenous peoples have the right to access to and prompt decision through just and fair
procedures for the resolution of conflicts and disputes with States or other parties, as well as
to effective remedies for all infringements of their individual and collective rights. Such a
decision shall give due consideration to the customs, traditions, rules and legal systems of the
indigenous peoples concerned and international human rights.

The Plaintiffs Plead for Reconciliation - Legal Issues and Relief Sought

134. In the landmark Daniels case, the Supreme Court said:

1. 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.

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.

Daniels v. Canada (Indian Affairs and Northern Development), [2016] 1 SCR 99

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135. In this case, reconciliation between the Plaintiffs and the Crown will be challenging, after

a century in which both Defendants have cruelly refused to recognize the “Burleigh Falls

Indians” as a community, refused to recognize or respect their Treaty rights, refused to

allow them to live in security without fear of eviction, and even refused to educate their

children and blocked the Plaintiffs’ attempts to improve their lives.

136. However, despite their history, or perhaps because if it, the Plaintiffs are as resilient, kind,

generous and forgiving as their ancestors, and they remain committed to honouring their

Treaties with the Crown and seeking a just and fair relationship with Canada and Ontario.

They seek reconciliation through the just resolution of their claims herein.

137. Reconciliation and justice for Kawartha Nishnawbe, and the restoration of the honour of

the Crown will require, at a minimum:

* recognition of their right to a secure Kawartha Nishnawbe land base,


which the community owns and controls;
* recognition as a First Nation community with equal access to the programs
and services available to status bands;
* recognition and respect for the Treaty rights of the Plaintiffs;
* fair compensation for 100 years of non-recognition, non-respect and cruel
and abusive suppression of the Plaintiffs’ rights;
* a sincere apology from both Defendants to the Plaintiffs for more than a
century of injustice.

Limitation Periods and Declaratory Relief

138. The Supreme Court has held that limitation periods can bar certain “personal” remedies

in Aboriginal rights cases, but they cannot prevent the Courts from issuing declarations

53
that Treaties and fiduciary obligations have been violated, that equality rights or other

constitutional rights or obligations have been violated, or that the conduct of governments

have failed to uphold the honour of the Crown. Manitoba Metis Federation Inc. v.

Canada (Attorney General), [2013] 1 SCR 623, 2013 SCC 14 (CanLII).

139. In Manitoba Metis the Supreme Court said:

[140] What is at issue is a constitutional grievance going back almost a century and
a half. So long as the issue remains outstanding, the goal of reconciliation and
constitutional harmony, recognized in section 35 of the Constitution Act, 1982 and
underlying s. 31 of the Manitoba Act, remains unachieved. The ongoing rift in the
national fabric that s. 31 was adopted to cure remains unremedied. The unfinished
business of reconciliation of the Métis people with Canadian sovereignty is a matter of
national and constitutional import. The courts are the guardians of the Constitution
and, as in Ravndahl and Kingstreet, cannot be barred by mere statutes from issuing a
declaration on a fundamental constitutional matter. The principles of legality,
constitutionality and the rule of law demand no less: see Reference re Secession of
Quebec, [1998] 2 S.C.R. 217, at para. 72.

[141] Furthermore, many of the policy rationales underlying limitations statutes


simply do not apply in an Aboriginal context such as this. Contemporary limitations
statutes seek to balance protection of the defendant with fairness to the plaintiffs:
Novak v. Bond, [1999] 1 S.C.R. 808, at para. 66, per McLachlin J. In the Aboriginal
context, reconciliation must weigh heavily in the balance. As noted by Harley
Schachter:

The various rationales for limitations are still clearly relevant, but it is the
writer’s view that the goal of reconciliation is a far more important
consideration and ought to be given more weight in the analysis. Arguments that
provincial limitations apply of their own force, or can be incorporated as valid
federal law, miss the point when aboriginal and treaty rights are at issue. They
ignore the real analysis that ought to be undertaken, which is one of
reconciliation and justification.

(“Selected Current Issues in Aboriginal Rights Cases: Evidence, Limitations


and Fiduciary Obligations”, in The 2001 Isaac Pitblado Lectures: Practising
Law In An Aboriginal Reality (2001), 203, at pp. 232-33)

[142] Schachter was writing in the context of Aboriginal rights, but the argument
applies with equal force here. Leonard I. Rotman goes even farther, pointing out that
to allow the Crown to shield its unconstitutional actions with the effects of its own
legislation appears fundamentally unjust: “Wewaykum: A New Spin on the Crown’s
Fiduciary Obligations to Aboriginal Peoples?” (2004), U.B.C. L. Rev. 219, at pp.
241-42. The point is that despite the legitimate policy rationales in favour of statutory
limitations periods, in the Aboriginal context, there are unique rationales that must
sometimes prevail.

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140. In this case, although the Plaintiffs say that only an order giving them title to their own

collective land base in Burleigh Falls and access to programs and services for First

Nations will begin to achieve reconciliation with the Crown, they mainly seek mere

declarations that the Defendants have violated their rights, and failed to uphold the

honour of the Crown, by marginalizing them, denying them land security and denying

them access to programs and services. This sort of declaratory relief is specifically

endorsed by the Supreme Court in cases where claims by Indigenous people for more

specific and tangible remedies, such as an order for the return of stolen land, may be

barred by limitation periods.

141. As suggested by the Supreme Court in Manitoba Metis, the Plaintiffs hope that the

declaratory relief ordered by this Honourable Court will be useful leverage in convincing

the Defendants to finally negotiate an agreement with them which will truly achieve

reconciliation and justice and restore the honour of the Crown. This must be the goal of

this Honourable Court’s orders.

Breach of Section 35 of the Constitution Act, 1982

142. Section 35 recognizes and affirms “the existing aboriginal and treaty rights of the

aboriginal peoples of Canada”. The purpose of section 35 is to achieve reconciliation

between the Crown and First Nations by recognizing and respecting the land rights and

other fundamental Aboriginal and Treaty rights of Indigenous peoples.

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143. The Plaintiffs hold Treaty rights flowing from the Rice Lake Treaty of 1818, aka Treaty

#20. Those rights include harvesting rights, the right to live on a reserve or similar secure

land base, and the right to be consulted whenever governments contemplate actions

which could impact on those rights.

144. All of the Plaintiffs’ Treaty rights have been intentionally breached since their ancestors

were deprived of their birthright by removing them from band lists and forcing them off

their home reserves. These violations continue today as both Defendants continue to

deny the Plaintiffs a secure land base, deny their harvesting rights and their right to

preserve their Mississauga culture, and fail or refuse to consult with them regarding

projects and undertakings which could impact on their rights.

Breach of Fiduciary Duties

145. The Crown assumed a fiduciary relationship with the Plaintiffs when it entered into

Treaty with them in 1818, and again in 1856. Through those Treaties, the Crown

assumed discretionary control over the lands which the Mississauga had collectively

owned, and thereby assumed a fiduciary duty to protect the interests of the Mississauga

people who became their Treaty parters.

146. The Plaintiffs state that the Defendant governments owe a fiduciary duty to uphold and

protect their Aboriginal and Treaty rights, including the right to a secure land base and the

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right to preserve their culture and identity, and that the Defendants have grossly violated

that duty by flagrantly and intentionally marginalizing and impoverishing the Plaintiffs

and denying the existence of their rights and denying their existence as a community.

147. The Plaintiffs say that the Defendants owe the Plaintiffs a fiduciary duty to uphold and

protect their harvesting rights under the 1818 Rice Lake Treaty and that they have

flagrantly and intentionally breached that duty by refusing to recognize their rights and by

excluding Kawartha Nishnawbe from the recent negotiations regarding the Williams

Treaties and by excluding Kawartha Nishnawbe from the provisions and benefits of their

agreement with the status bands, and by refusing to negotiate a similar agreement with

Kawartha Nishnawbe.

The Defendants have Violated, and Continue to Violate, the Equality Rights of the
Plaintiffs, Contrary to Section 15 of the Canadian Charter of Rights and Freedoms

148. The Plaintiffs state that Canada and Ontario have violated and continue to violate their

equality rights, contrary to section 15 of the Charter, by denying them Indian Act band

status and systematically treating the fact that their community is “non-status” as

effectively meaning that the Plaintiffs have no Treaty or Aboriginal rights and no existence

as a community, and, in the case of Canada, denying them access to the Specific Claims

Tribunal and denying access to programs and services for Indian Act bands.

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149. Virtually all of Canada’s 634 Indian Act bands have reserves or similar secure land bases.

Between them, they hold 3,100 reserves for the exclusive use of their members. The few

status bands without reserves have either chosen not to take reserves because they believe

that they retain full title to their entire traditional territories (NWT) or they are in a process

with Canada in which Canada recognizes their right to a reserve and is working towards

creating reserves for them (Newfoundland).

150. Only a handful of First Nation communities are regarded by Canada as not having a right to

a reserve or similar secure land base, and all of them are “non-status” communities like

Kawartha Nishnawbe. The Plaintiffs state that, even if they do not have a Treaty right to a

reserve or similar land base, the refusal by both Defendants to establish a land base for

Kawartha Nishnawbe is manifestly discriminatory and denies them one of the most

essential and fundamental rights of Indigenous people in Canada.

151. The Plaintiffs state that the Defendants have violated their equality rights, contrary to

section 15 of the Canadian Charter of Rights and Freedoms, by denying their community a

reserve or similar secure land base, on the prohibited grounds that Kawartha Nishnawbe is

a “non-status” First Nation community and not an Indian Act “band”.

152. The Plaintiffs state that the Defendants have violated their equality rights, contrary to

section 15 of the Canadian Charter of Rights and Freedoms, by excluding Kawartha

Nishnawbe from their negotiations on the Williams Treaties and from the benefits and

58
compensation which they have agreed to give to the seven Williams Treaty bands, on the

prohibited grounds that Kawartha Nishnawbe is a “non-status” First Nation community and

not an Indian Act “band”.

The Honour of the Crown

153. The Supreme Court has held repeatedly that, in all its dealings with Aboriginal peoples,

from the assertion of sovereignty to the resolution of claims and the implementation of

treaties, the Crown must act honourably. The honour of the Crown always seeks “the

reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown”.

154. In Manitoba Metis, the Court said:

[66] The honour of the Crown arises “from the Crown’s assertion of sovereignty over an
Aboriginal people and de facto control of land and resources that were formerly in the
control of that people”: Haida Nation, at para. 32. In Aboriginal law, the honour of the
Crown goes back to the Royal Proclamation of 1763, which made reference to “the
several Nations or Tribes of Indians with whom We are connected, and who live under
our Protection”: see Beckman v. Little Salmon/Carmacks First Nation, [2010] 3 S.C.R.
103, at para. 42. This “Protection”, though, did not arise from a paternalistic desire to
protect the Aboriginal peoples; rather, it was a recognition of their strength. Nor is the
honour of the Crown a paternalistic concept. The comments of Brian Slattery with
respect to fiduciary duty resonate here:

The sources of the general fiduciary duty do not lie, then, in a paternalistic
concern to protect a “weaker” or “primitive” people, as has sometimes been
suggested, but rather in the necessity of persuading native peoples, at a time
when they still had considerable military capacities, that their rights would be
better protected by reliance on the Crown than by self-help.

(“Understanding Aboriginal Rights” (1987), 66 Can. Bar Rev. 727, at p. 753)

[67] The honour of the Crown thus recognizes the impact of the “superimposition of
European laws and customs” on pre-existing Aboriginal societies: R. v. Van der Peet,
[1996] 2 S.C.R. 507, at para. 248, per McLachlin J., dissenting. Aboriginal peoples were
here first, and they were never conquered (Haida Nation, at para. 25); yet, they became
subject to a legal system that they did not share. Historical treaties were framed in that
unfamiliar legal system, and negotiated and drafted in a foreign language: R. v. Badger,
[1996] 1 S.C.R. 771, at para. 52; Mitchell v. Peguis Indian Band, [1990] 2 S.C.R. 85, at
pp. 142-43, per La Forest J. The honour of the Crown characterizes the “special

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relationship” that arises out of this colonial practice: Little Salmon, at para. 62. As
explained by Brian Slattery:

. . . when the Crown claimed sovereignty over Canadian territories and


ultimately gained factual control over them, it did so in the face of pre-existing
Aboriginal sovereignty and territorial rights. The tension between these
conflicting claims gave rise to a special relationship between the Crown and
Aboriginal peoples, which requires the Crown to deal honourably with
Aboriginal peoples.

(“Aboriginal Rights and the Honour of the Crown” (2005), 29 S.C.L.R. (2d) 433,
at p. 436)

[73] The honour of the Crown “is not a mere incantation, but rather a core precept that
finds its application in concrete practices” and “gives rise to different duties in different
circumstances”: Haida Nation, at paras. 16 and 18. It is not a cause of action itself;
rather, it speaks to how obligations that attract it must be fulfilled. Thus far, the honour of
the Crown has been applied in at least four situations:

(1) The honour of the Crown gives rise to a fiduciary duty when the Crown
assumes discretionary control over a specific Aboriginal interest (Wewaykum, at
paras. 79 and 81; Haida Nation, at para. 18);

(2) The honour of the Crown informs the purposive interpretation of s. 35 of


the Constitution Act, 1982, and gives rise to a duty to consult when the Crown
contemplates an action that will affect a claimed but as of yet unproven
Aboriginal interest (Haida Nation, at para. 25);

(3) The honour of the Crown governs treaty-making and implementation


(Province of Ontario v. Dominion of Canada (1895), 25 S.C.R. 434, at p. 512,
per Gwynne J., dissenting; Mikisew Cree First Nation v. Canada (Minister of
Canadian Heritage), [2005] 3 S.C.R. 388, at para. 51), leading to requirements
such as honourable negotiation and the avoidance of the appearance of sharp
dealing (Badger, at para. 41); and

(4) The honour of the Crown requires the Crown to act in a way that
accomplishes the intended purposes of treaty and statutory grants to Aboriginal
peoples (R. v. Marshall, [1999] 3 S.C.R. 456, at para. 43, referring to The Case
of The Churchwardens of St. Saviour in Southwark (1613), 10 Co. Rep. 66b, 77
E.R. 1025, and Roger Earl of Rutland’s Case (1608), 8 Co. Rep. 55a, 77 E.R.
555; Mikisew Cree First Nation, at para. 51; Badger, at para. 47).

[74] Thus, the duty that flows from the honour of the Crown varies with the situation in
which it is engaged. What constitutes honourable conduct will vary with the
circumstances.

155. As set out in their prayer for relief, the Plaintiffs state that the conduct of the Defendants in

relation to Kawartha Nishnawbe has failed to uphold the Honour of the Crown, by denying

rather than protecting their rights under the Rice Lake Treaty to harvest fish and wildlife

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and the right to live on a reserve, and by excluding them from programs and services for

“bands”, and even from basic services ostensibly available to all Canadians, and by

refusing to negotiate agreements with the Plaintiffs similar to those agreements the

Defendants have concluded with the “status” Williams Treaty bands, and denying them

access to a process for land claims resolution.

156. The honour of the Crown has been badly tarnished by the conduct of the Defendants over

the past 100 years in relation to the Plaintiffs. It is the duty of this Honourable Court to

restore the honour of the Crown by granting the relief sought by the Plaintiffs.

Damages for Breach of Rights and Exemplary Damages

157. In recent years, Canadian courts have awarded damages under s. 24(1) of the Charter for

breach of Charter rights. Vancouver (City) v. Ward, [2010] 2 SCR 28; Canada (Prime

Minister) v. Khadr, [2010] 1 SCR 44; Henry v. BC, 2016 BCSC 1038; Elmardy v Toronto

Police Services Board, 2017 ONSC 2074.

158. Damages in this case should reflect the nature of the rights violated, the number of people

affected, the fact that these breaches have continued even after an Ontario court clearly called

for respect for the Plaintiffs’ Treaty rights (Johnson) and after the Supreme Court held that

the Plaintiffs had suffered “layer upon layer of exclusion and discrimination” (Lovelace). It

is apparent that the Defendants will continue to suppress and deny the fundamental rights of

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the Plaintiffs unless this Honourable Court awards appropriate damages. Experience has

shown that declaratory relief will not be enough.

159. The Plaintiffs state that this is one of the exceptional cases where the violation of

Constitutional rights has not only been intentional, but so egregious, so long lasting, so

destructive, and affecting such fundamental rights, that exemplary damages are also

warranted and necessary in order to reflect societal revulsion, compensate the Plaintiffs, and

restore the honour of the Crown.

160. The Plaintiffs plead and rely on

- The Royal Proclamation of 1763;

- section 35 of the Constitution Act, 1982;

- sections 15, 24 and 52 of the Canadian Charter of Rights and Freedoms;

- the Specific Claims Tribunal Act, S. C. 2008, c. 22;

- Treaty #20, 1818;

- Treaty 78 of 1856;

- Williams Treaties of 1923;

- The United Nations Declaration on the Rights of Indigenous Peoples;

- Bill C-262, An Act to ensure that the laws of Canada are in harmony with the United
Nations Declaration on the Rights of Indigenous Peoples, and

- the Courts of Justice Act.

161. The Plaintiffs propose that the trial of this action be held in Peterborough, Ontario.

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December 12, 2018 Christopher M. Reid,
Counsel for the Plaintiffs
154 Monarch Park Ave.
Toronto, ON M4J 4R6
Tel: 416-909-4531
Fax: 416-466-1852
lawreid@aol.com
LSUC #27827R

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