http://www.scribd.com/doc/32120239/NB-Statement-of-Claim-FINAL-3(Firefox wouldnt load it, IE 9 loaded it with problems, Flock loaded correctly)
Court File No.: MC027010
NEW BRUNSWICK
COURT OF QUEEN’S BENCH
BETWEEN:
KEP’TIN STEPHEN J. AUGUSTINE,
hereditary Chief Sigenigtog,
EAST COAST FIRST PEOPLES ALLIANCE,
JACKIE VAUTOUR and ROY VAUTOUR
Plaintiffs
-and-
HER MAJESTY THE QUEEN ELIZABETH II
and THE ATTORNEY GENERAL OF CANADA
Defendants
STATEMENT OF CLAIM
(Notice of Action issued on April 21, 2010)
PARTIES TO THE PROCEEDING
Plaintiffs:
1. Kep’tin Stephen J. Augustine is a hereditary chief of Sigenigtog district (North Shore New Brunswick), a direct descendant of Kep’tin Michael Augustine, a signatory to the Treaty of Peace and Friendship of March 10, 1760 and is a member of the traditional government, Santi Mawio’mi or Mi’kmaq Grand Council.
2. East Coast First Peoples Alliance acts as an official body for the preservation and advancement of the Métis Indigenous peoples of the territory known as New Brunswick and acts in a representative capacity to seek recognition, redress, compensation and reconciliation between the Crown and Indigenous Métis people of the territory.
3. Jackie Vautour and Roy Vautour are Métis people of the territory known as New Brunswick and both are representative of the dispossession, discrimination, and destruction of Métis people by Crown policy since 1710 to the present.
Defendants:
4. Her Majesty the Queen Elizabeth II is the Executive Government and Authority of and over Canada as expressed in Article 9 of theBritish North America Act of 1867 and the Constitution Act of 1982. Queen Elizabeth II has moral, fiduciary and legal responsibilities expressed in various treaties with the Indigenous peoples herein and has legal duties to redress wrongdoings implemented by British colonial policy in the territory known as New Brunswick.
5. The Crown in the Right of Canada, through the Attorney General of Canada has moral, legal and fiduciary duties toward the Indigenous peoples of the territory known as New Brunswick, particularly as it applies to land, resources, self-determination impacting on the cultural, social and economic base of the Indigenous peoples of the territory known as New Brunswick.
6. The representative Plaintiffs intend to file an amendment to this Statement of Claim in order to add the Queen in the Right of New Brunswick as a defendant to advance a claim for a declaration of trust as set out in Section 109 of the Constitution Act 1982 and to seek a moratorium on prosecutions for fishing, hunting and forestry violations.
PLACE OF RESIDENCE OF PLAINTIFFS
7. Plaintiff Kep’tin Stephen J. Augustine’s address is 22 Ballpark St., Elsipogtog,
N.B., E4W 2R9.
8. Plaintiff East Coast First Peoples Alliance’s address is Box 2143 Lameque,
N.B., E8T 3N7.
9. Plaintiff Jackie Vautour and Roy Vautour’s address is 1494 Route 117,
Kouchibougouac, N.B., E4X 2P2.
DEFINITIONS
10. The following terms shall be applicable to this Statement of Claim and so
defined as follows:
(a) Aboriginal peoples of Canada: includes the Indian, Inuit and Métis
peoples of Canada;
(b)Acadie: derives from a Mi’kmaq word a’kati and a’katikewak, meaning
“the people who derived their life from the land”, in French, les Acadiens;
(c)Crown: Queen Elizabeth II and her predecessors and includes the Queen
in the Right of Canada and the Queen in the Right of New Brunswick;
(d)Diaspora: the movement, migration, or scattering of a people away from
an established or ancestral homeland;
(e) Gen ocide: as per Article 2 of the U.N. Convention on the Prevention and
Punishment of the Crime of Genocide, genocide means any of the
following acts committed with intent to destroy, in whole or in part, a
national, ethnical, racial or religious group, as such:
i. Killing members of the group;
ii. Causing serious bodily or mental harm to members of the group;
iii. Deliberately inflicting on the group conditions of life calculated to
bring about its physical destruction in whole or in part;
iv. Imposing measures intended to prevent births within the group;
v. Forcibly transferring children of the group to another group
(f)Métis: aboriginal peoples of Canada in particular those Métis in the
province of New Brunswick;
(g) Mi’kmaq Grand Council or Santi Mawio’mi: means traditional government of seven clans, seven fires of seven territories, Onamakik (Cape Breton), Eskekiak (Canso), Epekuitk ag Piktuk (P.E.I. and Pictou), Sukapenakadik (Shubenacadie), Kespukwitk (southern Nova Scotia), Sigenigtog (North Shore of new Brunswick and Kespekewakik (Gaspe). The Mi’kmaq Nation are one of several aboriginal cultural groups in Atlantic Canada, the others being the Maliseet and Passamaquoddy in New Brunswick;
(h)Sigentigog: our area of land encompasses half of the Acadian peninsula in New Brunswick, all the coast line along Northumberland Strait to Oxford, Nova Scotia and down into the isthmus of Chignecto and inland including all the watersheds to the Grand Lake and the mouth of the Saint John River, including the Kouchibougouac Clair Fontaine area.
MATERIAL FACTS
11. The representative Plaintiffs have a shared history of historic injustices as a result of their colonization and the dispossession of their lands, territories and resources. These historic injustices caused by the imposition of British Colonial law have prevented the representative Plaintiffs from exercising, in particular, their right to develop their political, economic and social structures in accordance with their own needs and interests. As a result, the representative Plaintiffs claim an entitlement to the recognition of
Indigenous laws, traditions and customs in the evaluation of the right to compensation
and reconciliation for the harms caused by the imposition of British Colonial law.
12. The representative Plaintiffs have experienced discrimination by the imposition of British Colonial law, continued then by the federal and provincial Crowns, in adjudicating and developing public policy which is an anathema to the self- determination and inherent integrity of the Mi’kmaq and Métis people as regards to lands, territories and resources in the Province of New Brunswick and elsewhere.
13. The representative Plaintiffs will state their claim through the historical experience of the territory known as Sigenigtog, which includes Kouchibougouac territory (now known as Kouchibougouac National Park), which illustrates the story of the Mi’kmaq Nation in New Brunswick and the Métis peoples of New Brunswick.
14. The representative Plaintiffs claim the right to belong to an Indigenous community or nation, based on the traditions and customs of the community or nation, without discrimination. As a direct result of British colonial rule, inherited by the Crown in the Right of Canada and New Brunswick, Indigenous peoples were deprived of their means of subsistence and development and therefore are entitled to just and fair redress.
15. The representative Plaintiffs claim entitlement to an evaluation of the wrongdoings of the past by an impartial tribunal which gives due recognition to Indigenous laws, traditions, customs and oral traditions, which pertain to the loss of their lands, territories and resources.
16. The consciousness of genocide (United Nations Treaty definition) has permeated the relationship between the Indigenous peoples of New Brunswick and the various forms of the Crown, from the Treaty of Utrecht of 1713 to the present day, which has destroyed
normative values of Indigenous structures, imposing one which was designed to bring
dominion and deprivation of Indigenous societal structures, culture, land and resources.
17. The representative Plaintiffs will rely on historical evidence to outline the dysfunctional relationship between the Indigenous peoples and the colonial newcomers. As a means to ensure successful colonization, the newcomers imposed a system on the Indigenous people designed to destroy traditional Indigenous political, social and cultural structures in order to fulfill an agenda of dominion over land, resources and territories.
18. The representative Mi’kmaq hereditary chief, Kep'tin Stephen J. Augustine, herein expresses solidarity with the representative Métis Plaintiffs and in the tradition of the Mi’kmaq law, offers protection and sharing with his Métis brothers and sisters in the pursuit of this claim. Mi’kmaq tradition includes the understanding that Indigenous people are equal to all other peoples, while recognizing the right of all peoples to be different, to consider themselves different, and to be respected as such.
19. The representative Plaintiffs rely on Peace and Friendship Treaties concluded with the British Crown and the Mi’kmaq Nation such as those entered into in 1725/26, 1749, 1752, 1760, 1761, 1778 and 1788 evidencing the sovereignty of the Mi’kmaq Nation and the continuity of traditional Mawio’mi governance.
20. The representative Plaintiffs can establish the commencement of the Métis nation in the territory known as Canada, as beginning in 1610 in and around the province of New Brunswick. They can demonstrate that the word ‘Acadie’ is derived from the Mi’kmaq word “a’kati” and “a’katikewak”- “the people who derived their life from the land,” thus entitling the Métis of New Brunswick to a declaration of their existence and the
establishment of their Indigenous rights.
21. The diaspora of 1755 involved the British Crown physically displacing upwards of 15,000 thousand Métis from the territory of Acadie part of which is now known as New Brunswick. This event stands as a historical marker for the template of the consciousness of genocide which has faced the Métis people and continues to do so presently as was illustrated with the displacement of Métis people in Kouchibougouac, traditional Mi’kmaq and Métis territory, known also as Kouchibougouac National Park.
22. British Colonial policy and subsequent federal and provincial policy, has clearly discriminated against the Métis people in these major displacements leading to public policy which denies their existence and exposes them to endless prosecutions for hunting, fishing and forestry offences.
23. The representative Plaintiffs rely on the Mi’kmaq Creation Story which stands as a pre-contact (Europeans) Indigenous legal system, informing the representative Plaintiffs in a legitimate traditional form of government equal to the British legal system and of equal weight in the evaluation of recognition, declaration of Indigenous title and the right to compensation and redress for land, territories and resources.
24. The representative Plaintiffs assert that the core treaty of Peace and Friendship was in 1725/26, with the other treaties ratifying or renewing this treaty. These treaties apply to all Mi’kmaq according to Mi’kmaq law. This demonstrates a continuity of relationship which must be evaluated in favour of the representative Plaintiffs as they were never intended to dispossess the Indigenous peoples of their lands, territories, resources, customs, or political and legal structures.
25. The representative Plaintiffs assert that constitutional Indigenous principles can
be proven which need to be evaluated with British/Canadian constitutional principles. As
a result, a constitutional crisis exists between Indigenous peoples and the Crown (in its various forms) which needs to be resolved in order to provide proper compensation, redress and reconciliation in keeping with the Honour of the Crown.
26. The representative Plaintiffs assert the doctrine of the Honour of the Crown and principles of constitutional sui generis fiduciary obligations as examples of the recognition of obligations on the part of the Crown which, if properly fulfilled, would provide the recognition, redress, compensation and reconciliation required for the loss of lands, territories, resources, rights, political structures and culture.
27. The representative Plaintiffs assert that the use of oral traditions and languages assist in affirming and protecting the rights of Indigenous peoples in New Brunswick, derived from Mi’kmaq knowledge, language and legal traditions. It is asserted that this distinct philosophy of justice and legal traditions based on spiritual and ecological understanding can assist in the declared constitutional crisis which exists between Indigenous peoples and the Crown.
28. The representative Plaintiffs assert that the Indian Act of 1876, onward to this day, was the model for the policy of apartheid in South Africa and has had the continued effect of attempting to destroy traditional forms of government which amounts to the imposition of conditions of life designed to bring mental or physical harm to a group, contrary to the United Nations convention on genocide.
29. The representative Plaintiffs state that the imposition of theIndian Act since 1876 is a reflection of the consciousness of genocide which is embodied in the statement in the House of Commons by Sir John A. MacDonald when he said, “The great aim of our legislation has been to do away with the tribal system and assimilate the Indian
people in all respects with the inhabitants of the Dominion as speedily as they are fit for
change.”
30. Crown policy has historically and systematically been designed to subjugate the Indigenous people by usurping the lands and imposing a governance structure foreign to Indigenous culture and legal tradition. The Indigenous peoples of the territory began a relationship of alliance and sharing with the newcomers which was replaced by one of subjugation in the imposition of British colonial policy.
31. Despite much advancement in the articulation of Indigenous peoples’ constitutional rights, the delayed constitutional implementation of those advancements operates to further alienate the constitutional relationship between the Indigenous peoples and the Crown, in its various forms.
32. The representative Plaintiffs of the Mi’kmaq Nation and the representative Plaintiffs of the Métis people of the territory known as New Brunswick seek to act on behalf of their people to bring redress, compensation, and reconciliation for the wrongdoings brought about by the imposition of the British colonial system.
33. The representative Plaintiffs state that the Crown has continued to discriminate systematically against treaty rights of the Mi’kmaq people relying on non-binding negotiations based on policy with its federally funded band and organizations. The Métis people are marginalized to such an extent that the Crown is consistently relying on discriminatory government funded reports to deny their very existence in the territory known as New Brunswick.
Declaration of Indigenous Title
34. The representative Plaintiffs state that the proper holder of rights, whether for Indigenous title or Indigenous rights, is the community of Mi’kmaq people, sharing with the Métis people of the territory known as New Brunswick. Mi’kmaq people are the historic community of people sharing language, customs, traditions, historical experience, legal traditions and resources at the time of first contact with the newcomers.
35. The Indigenous rights of individual Mi’kmaq people and the Métis people within the Mi’kmaq Nation are derived from the collective actions, shared language, legal traditions and shared historical experience of the members of the Mi’kmaq Nation and the Métis of the territory known as New Brunswick.
36. Indigenous title confers a sui generis interest in land, which is a right to the land itself. The representative Plaintiffs state that the interest in the land can compete on an equal footing with other proprietary interests.
37. The representative Plaintiffs state that Indigenous title confers a right to exclusive use, occupation and possession to use the land for the general welfare and present day needs of the Indigenous communities. Indigenous title also includes a proprietary-type right to choose what uses Indigenous title holders can make of Indigenous title lands.
38. The representative Plaintiffs state that Indigenous title brings with it a right to the exclusive use and possession of land, including the natural resources. As a result of crown action and policy, this Indigenous title has been infringed, entitling the Indigenous rights holder to compensation and redress.
39. The Royal Proclamation of 1763, enshrined as article 25 of the Constitution Act
1982, protects Indigenous title as against frauds, abuses and pretences and continues as
the seminal document in an evaluation of the existence of Indigenous title throughout the traditional Mi'kmaq territory of Sigenitog. This traditional territory of the Mi'kmaq Nation was shared with the Métis people before the diaspora of 1755 and after theRoyal
Proclamation of 1763 to the present day.
40. The representative Plaintiffs state that there has never been a proper surrender of Indigenous title in the traditional Mi'kmaq territory of Sigenitog, either through treaty nor other instrument which would disturb the on-going existence of Indigenous title. All of the treaties between the Mi'kmaq Nation and the Crown were treaties of Peace and Friendship and did not operate as a surrender of Indigenous title.
41. The representative Plaintiffs state that the combined effect of theRoyal
Proclamation of 1763, Article 25 and Article 35(1) of the Constitution Act 1982 confirm
that the Indigenous title in the outlined territory is recognized and affirmed.
42. Since the imposition of British Colonial rule, from the Treaty of Utrecht of 1713, in the territory of Acadie and now known as New Brunswick, there have occurred many frauds, abuses and pretences which were designed to dispossess and displace the Indigenous right holders and adversely impact the Indigenous title. The representative Plaintiffs claim on behalf of all Mi'Kmaq and Métis peoples in the territory of New Brunswick a right to a declaration of Indigenous title in the territory known as Sigenitgog.
43. The representative Plaintiffs state that many infringements of Indigenous title have occurred since 1713 to the present day and the parties claim entitlement to compensation for these infringements. The infringements will be more particularly listed and defined at
the trial of this matter.
44. The representative Plaintiffs state that the Crown has never obtained a proper surrender of Indigenous title in the territory known as Sigenitigog thus entitling the Plaintiffs to a declaration of Indigenous title. Moreover, at Confederation, theBritish
North America Act, Article 109 gave lands and resources to New Brunswick, subject to
any trusts existing therein and to any interest other than that of the Province.
45. The representative Plaintiffs, on behalf of all Mi'kmaq and Métis peoples in the territory known as New Brunswick claim entitlement to a declaration of Indigenous title as contemplated by all of the instruments mentioned above. This declaration of Indigenous title would then engage the Honour of the Crown to consult and accommodate the Indigenous title holders on redress, compensation and reconciliation.
46. The representative Plaintiffs claim entitlement to the existing Indigenous right of
Nationhood pursuant to tribal custom and tradition through the prism of s. 35(1) of the
Constitution allowing for redress on the deprivation of land through trespass and damages
for acts of genocide, resulting in the death of the person, the culture, the spirituality and
the eradication of self-government of the people.
47. The numerous outstanding disputes over Indigenous lands and territories reflect the extensive systemic barriers found by Indigenous peoples in the assertion of these rights, including the adversarial role the federal and provincial governments play in the negotiation of treaties and the resolution of land and treaty disputes and the continued failure of federal and provincial authorities to adequately integrate critical international standards for the protection of Indigenous rights into domestic law and policy. The representative Plaintiffs state that there is an obligation on authority to compensate and redress the wrongdoing experienced by them since the newcomers arrival until the
present time and the wrongdoings that continue to be expressed in the trespass on Indigenous land and the continuation of wrongdoing defined as genocide in the imposition of the Indian Act, the stealing of resources through the Ministry of Natural Resources of New Brunswick, and the disconnection of the Indigenous peoples from the use of the land thereby imposing acts of cultural genocide on the Indigenous peoples.
48. The representative Plaintiffs state that they have been deprived of their human rights and fundamental freedoms, resulting,inter alia, in their colonization and disposition of their lands, territories and resources, thus preventing them from exercising, in particular, their right to development in accordance with their own needs and interests. There is an urgent need to respect and promote the inherent rights and characteristics of Indigenous peoples, especially their rights to their lands, territories and resources, which derive from their political, economic and social structures and from their cultures, spiritual traditions, histories and philosophies. This deprivation and dispossession is imposing conditions of life designed to cause mental and physical harm.
49. The representative Plaintiffs state that through trespass and acts of genocide they have been systematically deprived of the right of nationhood that would have included the right to self-government and had it not been for the wrongdoings against them, would have entitled them to a relationship with their land thus preserving their culture, but also would have promoted the resolution of disputes on a nation to nation basis and not left them at the mercy of the imposed British colonial system, with its Judeo-Christian ethic, which writes laws designed to deny the Indigenous peoples of any legal remedy or redress. The representative Plaintiffs claim entitlement to the Indigenous right of nationhood and self-government which would allow for compensation and redress of these on-going wrongdoings.
50. The representative Plaintiffs state that the present political system in Canada and New Brunswick has been designed since inception to deprive them of any representation in government and this continues today. Accordingly, with a government imposed on them, in a system that allows them no representation, the representative Plaintiffs are governed but not represented. Furthermore, when the representative Plaintiffs turn to the courts for redress they are turned away by legal devices embedded in legislation written to deny them redress for past wrongdoings and on-going harmful practices. The cycle is never broken as all the places of redress are rife with discrimination, racial prejudice and religious intolerance.
51. The Indigenous peoples of Turtle Island throughout the territory of North and South America are the victims of a consciousness of genocide which began in 1493 with swords and spears, graduated to guns and bullets through the 1700’s to 1867 and then developed into the most deadly weapon of mass destruction, the pen and the paper used to write laws from 1857 to the present which deny the representative Plaintiffs the proper elements of nationhood placing them in the unenviable position of wards of the Crown having no forum to address the wrongdoings perpetrated upon them.
52. The representative Plaintiffs state that the Indian reserves were created between
1783 and 1838 in New Brunswick culminating inan Act for the Sale and Management of
Indian Lands in 1841. Impositions of federal legislation after the British North America
Act of 1867 resulted in the imposition of conditions designed to cause mental or physical
harm to members of a group. This is defined as an act of genocide in the United Nations
Convention on the Prevention and Punishment of the Crime of Genocide and in the Crimes Against Humanity and War Crimes Act, S.C. 2000, C 24. as well as the Criminal Code of Canada.
(cont.)
