1 Court File No. ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: Stacy Amikwabi (aka McQuabbie) on behalf of himself and on behalf of the Amikwabi family of the Algonquin Nation and on behalf of the Amikwabi Nation of the Algonquin/Nipising Nation and on behalf of the Anishnaabeg Confederacy of the Algonquin/Nipissing Nation in the territories known as Ontario and Quebec -andthe West Nipissing Woodland Metis Association, the League of Indian Nations of North America (West Nipissing) and the Algonquin Hunting Party (set out at Schedule “B”) Plaintiffs -andThe Attorney General of Canada, the Attorney General of Ontario, the Algonquins of Ontario (AOO), Windmill Development Group Ltd., Domtar Inc., National Capital Commission (NCC), and the Corporation of the City of Ottawa. Defendants STATEMENT OF CLAIM STATEMENT OF CLAIM TO THE DEFENDANT A LEGAL PROCEEDING HAS BEEN COMMENCED AGAINST YOU by the plaintiff. 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. 2 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. 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. (Where the claim made is for money only, include the following:) IF YOU PAY THE PLAINTIFF’S CLAIM, and $0 for costs, within the time for serving and filing your statement of defence you may move to have this proceeding dismissed by the court. If you believe the amount claimed for costs is excessive, you may pay the plaintiff’s claim and $400 for costs and have the costs assessed by the court. Date: ….................................................................. by ........................................................................... office ......................................................................... Issued Address of court Local registrar ...................................................... ELDERS WITHOUT BORDERS Michael Swinwood 237 Argyle Ave Ottawa, ON K2P 1B8 Ph: 613-563-7474 Fx: 613-563-9179 To: Attorney General of Canada Department of Justice Canada The Exchange Tower 130 King Street West, Suite 3400, Box 36 Toronto, Ontario M5X 1K6 And to: Attorney General of Ontario Ministry of the Attorney General McMurtry-Scott Building 720 Bay Street, 11th Floor Toronto, ON M7A 2S9 Ant to: Windmill Development Group Ltd. 1306 Wellington Street, Suite 201 Ottawa, Ontario K7Y 3B2 And to: Domtar Inc. 395 de Maisonneuve Boulevard West 3 Montreal, Quebec H3A 1L6 And to: National Capital Commission (NCC) 202-40 Elgin Street Ottawa, Ontario K1P 1C7 And to: Corporation of City of Ottawa 110 Laurier Avenue West Ottawa, Ontario K1P 1J1 4 STATEMENT OF CLAIM ORDERS SOUGHT 1. The Plaintiffs’ claim on behalf of themselves and all the plaintiffs: a. Interim orders sought: i. A stay on hunting and fishing charges presently before the Provincial Court and Provincial Offences Court in North Bay, Sudbury and Pembroke, Ontario, respectfully; ii. An order declaring that the Province of Ontario must consult and accommodate the Algonquin hunters presently being prosecuted in Sudbury, North Bay and Pembroke, Ontario. and iii. An order that Canada must consult and accommodate the Plaintiffs on the assertion of indigenous title outlined in the map set out at Schedule “A”; iv. Funding of the within litigation until completion. b. A declaration of Indigenous title in the traditional Indigenous lands of the Algonquin/Amikwa/Nipissing Nation as set out in the attached map outlined in schedule “A”, attached hereto; c. An order for compensation, in an amount to be determined at a trial of the issues, for all Algonquin/Amikwa/Nipissing lands dispossessed by the various Defendants from 1670 to present day based on the principles of the United Nations Declaration on the Rights of Indigenous Peoples and 5 principles of common law, informed by jus cogens; and the traditional laws, customs and traditions of the Anishnaabeg; d. An order that sacred sites identified by the Plaintiffs be declared to be under the stewardship of the Algonquin/Amikwa/Nipissing Nation and thereafter controlled and supervised by the Nation pursuant to their laws, traditions and customs; e. An order declaring the existence of a trust and interest in the lands, mines, minerals and royalties, referred to in Section 109 of the British North America Act 1867, from 1867 until the present on behalf of the Algonquin/Amikwa/Nipissing Nation, in the territories outlined in the map found at Schedule “A”, attached; f. An order for an accounting and payment from the trust referred above in e), from 1867 until the present on behalf of the Algonquin/Amikwa/Nipissing Nation; g. A declaration that the sacred wampum belts carried by Elder William Commanda (Ojigkwanong) inherited from his Great Great Grandfather Pakinawatik, hereditary Algonquin Chief, be accepted as Constitutional documentary evidence on behalf of the Algonquin/Amikwa/Nipissing Nation, along with the Constitution of the Pike; h. Costs of this litigation on a substantial indemnity basis; i. Such further and other relief as this honourable court should deem just. 6 Representative Plaintiff 2. Stacy Amikwabi (aka Stacy McQuabbie) in Court File No. CV-12-5341OOCP has been identified by the Attorney General of Canada as an Ojibway person registered as a Status Indian to the Ojibway First Nation known as Henvey Inlet First Nation. Stacy Amikwabi is not an Ojibway, but rather an Algonquin of the Amikwa Nation and a member of the French Indian Reserve No. 13 established in 1854. The name McQuabbie is a false name, given by the government and the Catholic Church at around the time the first Indian Status cards were issued pursuant to the Indian Act. 3. As early as 1610, the Jesuits identified the “Amicoue” or “Amikwa” as Algonquin people living along the French River between Lake Nipissing and Georgian Bay. They were a nomadic people who travelled the waterways as their highways, from Lake Nibigon, down through the French River, through Lake Nipissing to the Ottawa River, down through Montreal, and on to TroisRiviere. They are linked to the Mik'maq and Maliseet in the Maritime Provinces, through “dodems” or identified clan systems, as Amikwa has the English definition of Beaver. The Amikwa were known as the Beaver People of the Algonquin Nation. 4. Stacy Amikwa states and the fact is that his family and clan name was deliberately changed to McQuabbie as a strategy by the government, in cooperation with the Roman Catholic Church, to eliminate the history of the Amikwa Nation of the Algonquin Nation, in order, among other things, to lend legitimacy to the Robinson Huron Treaty of 1850. Thereafter, there was a 7 concerted effort to identify Stacy Amikwabi's family as Ojibway Indians and not their proper designation as Algonquin Indigenous Peoples. 5. Stacy Amikwabi states and the fact is that the “nindoodemaq” or kinship networks are critical to the understanding of the placement and cultural identity of Indigenous Peoples when asserting stewardship over a place on Mother Earth. Kinship networks are critical to where you com from, who your friends are, who your enemies are and how native law and culture should be interpreted for a particular place. 6. Stacy Amikwabi states that kinship networks specifically relate to the adverse impact of the Robinson Huron Treaty of 1850 has had on the lives of Amikwa peoples that the Algonquin Nation and the adverse consequences of the eradication of their identity through being identified as people who participated in the Robinson Huron Treaty with “Principal Men of the Ojibway Indians inhabiting and claiming the eastern and northern shores of Lake Huron form Penetanguishene to Sault Ste Marie and hence to Batchewanaug Bay on the northern shore of Lake Superior and inland to the height of the land which separates the territory covered by the Charter of the Honourable Hudson's Bay Company form Canada...,” the fact is that the Amikwa of the Algonquin Nation reside on unceded, unsurrendered indigenous land. 7. The wrongdoing associated with the Plaintiffs being associated or identified as signatories or beneficiaries of the Robinson Huron Treaty of 1850 are extensive and numerous. The most egregious is the loss of identity which 8 allows federal and provincial governments to manipulate and control their lives. Some of the examples of the wrongdoings are as follows: a. Imposition of the Indian Act; b. Permanent trespass on aboriginal land under the guise of treaty; c. Deprivation of minerals and resources; d. Alteration of way of life, culture, self-government; e. Improper judicial decisions informed by parties unauthorized to represent. 8. In particular, the assertion of Chief and Band Council of Henvey Inlet to authority over the land occupied by representative plaintiff Stacy Amikwabi is wrong in that this land is Indigenous land, unsurveyed, unceded, not surrendered. Stacy Amikwabi is of the Amikwa Nation, associated with the Algonquin Nation, which has never entered into treaty with the newcomers and asserts Indigenous title in these proceedings. No ancestors of the Amikwa Nation have ever entered into treaty for their ancestral lands. 9. Despite any assertions by the Federal government, they cannot prove acquisition of the French River territory occupied by the representative plaintiff Stacey Amikwabi through treaty or under the provisions of the Royal Proclamation of 1763 and they are therefore trespassing on Indigenous title. The Plaintiffs are entitled to damages for trespass. 10. The Plaintiffs state that William Benjamin Robinson did not have proper delegated authority from Her Majesty the Queen to conclude a treaty on September 9th 1850 and that the treaty is therefore void ab initio. At the time, 9 the Royal Proclamation of 1763 prevailed, as it continues today, and the responsibility for concluding a treaty resided with Her Majesty the Queen and absent direct instructions, William Benjamin Robinson was only acting on behalf of the Province of Canada. The Queen abdicated her responsibilities under the Royal Proclamation of 1763 in not providing specific and direct instructions to conclude this treaty. The treaty is therefore void ab intio. 11. The Plaintiffs state that the Defendant Her Majesty the Queen continues to have responsibilities under the Royal Proclamation of 1763 and has deliberately abdicated her responsibilities to the detriment of the Indigenous Peoples in the territory known as Canada. In the event Her Majesty the Queen would take up her responsibilities, it is stated that many land and resource problems of Indigenous Peoples could be resolved with more alacrity. The Plaintiffs state that Her Majesty the Queen has an on-going duty in land issues as it relates to Indigenous People and has breached her duty by not taking an active part in resolution of these on-going problems. 12. The Plaintiffs state that they are persons whose rights and freedoms have been violated and are entitled to an effective remedy notwithstanding that the violation has been committed by persons acting in an official capacity. The numerous outstanding disputes over Indigenous lands and territories reflect the extensive systemic barriers faced by Indigenous Peoples in the assertion of their rights including the adversarial role the Federal government plays 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 10 critical international standards for the protection of Indigenous rights into domestic law and policy 13. The Plaintiffs state that names of political entities do not consistently correspond with the Native American pictographic signatures on treaty documents. Twenty of these images, those of catfish, crane, beaver, bear, plover, thunderbird or eagle, marten, sturgeon, and other fauna, display a remarkable similarity to pictographs on late-eighteenth-nineteenth century treaties with the French allied Algonquin-speaking Anishinaabe peoples, who may be more familiarly known to scholars of these periods as Ojibwa (or Chippewa), Ottawa (or Odawa), Potawatomi, and Algonquin. In these later periods, the images clearly represent the “nindoodemaq”, or kinship networks, of those Anishnaabeg signatories. In this cultural tradition, people inherited their “nindoodemaq” identities from their fathers; they conceived of themselves as related to and having kin obligations toward those who shared the same other-than-human progenitor being. Evidence from a wide range of sources, including oral traditions, iconography, linguistics and material culture, all speak to the importance of these networks in Anishinaabe social and political life. “Nindoodemaq” shaped marriage and alliance patterns and facilitated long-distance travel; access to community resources was also negotiated through these networks. Sources dating from the seventeenth century suggest that in this earlier period and likely before contact, “nindoodemaq” operated as an important component of Anishnaabeg collective identities, fulfilling similar social and political functions. 11 Assertion of Title 14. The representative Plaintiffs state that the proper holder of rights, whether for Indigenous title or Indigenous rights, is the community of the Algonquin//Amikwa/Nipissing Anishnaabeg peoples found in the map attached as schedule “A”. The Algonquin/Amikwa/Nipissing Anishnaabeg 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. 15. The Indigenous rights of individual Algonquin/Amikwa/Nipissing Anishnaabeg within the Algonquin Nation are derived from the collective actions, shared language, legal traditions and shared historical experience of the members of the Algonquin/Amikwa/Nipissing Anishnaabeg of the territory known as Ontario and Quebec. 16. 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. 17. 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. 18. 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 12 result of Crown action and policy, this Indigenous title has been infringed, entitling the Indigenous rights holder to compensation and redress. 19. 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 Algonquin/Amikwa/Nipissing Anishnaabeg territory of Ontario and Quebec. This traditional territory of the Algonquin/Amikwa/Nipissing Anishnaabeg was shared with the Métis people after the Royal Proclamation of 1763 to the present day. 20. The representative Plaintiffs state that there has never been a proper surrender of Indigenous title in the traditional Algonquin/Amikwa/Nipissing Anishnaabeg territory of Ontario and Quebec, either through treaty nor other instrument which would disturb the on-going existence of Indigenous title. 21. The representative Plaintiffs state that the combined effect of the Royal 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. 22. Since the imposition of British Colonial rule, from the Treaty of Paris of 1763, in the territory of the Algonquin/Amikwa/Nipissing Anishnaabeg people and now known as Ontario and Quebec, 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 Algonquin/Amikwa/Nipissing Anishnaabeg 13 peoples in the territory of Ontario and Quebec a right to a declaration of Indigenous title for the territory known as the Algonquin traditional lands. 23. The representative Plaintiffs state that many infringements of Indigenous title have occurred since 1763 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. 24. The Plaintiffs hereby assert the right to a declaration of indigenous title on behalf of the Amikwa family of the Algonquin Nation, the Amikwa Nation of the Algonquin Nation and the Anishnaabeg Confederacy of the Algonquin/Amikwa/Nipissing Nation for the territory outlined in the map set out at schedule “A”. 25. 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 14 stealing of resources through the Ministry of Natural Resources of Ontario, and the disconnection of the Indigenous Peoples from the use of the land thereby imposing acts of cultural genocide on the Indigenous Peoples. 26. The Plaintiffs herein have never ceded nor surrendered their traditional homelands by any device, instrument, or treaty and as a consequence are entitled to a declaration of Indigenous title in all the lands outlined in the map attached at schedule “A”. In addition, they are entitled to compensation for the illegal dispossession of their traditional homelands through fraud, abuses and pretences, based on the principles set out in the United Nations Declaration on the Rights of Indigenous Peoples, Algonquin law, customs and traditions and the common law of Britain and Canada. Present Land Claim Process 27. The Algonquin/Amikwa/Nipissing Anishnaabeg Plaintiffs state that on February 14, 2003, the Algonquins of Pikwaknagan announced a new negotiation process based on an ongoing threat by Canada and Ontario to shut down the Algonquin claim negotiation. At that time, two bodies, the Council of the Algonquins of Pikwaknagan and the Algonquin Negotiation Directorate Board (ANND) purported to represent Algonquins in Ontario and “again to jointly work with and direct an independent negotiator with a mandate to negotiate the claim on behalf of its membership. ANND has agreed to do the same.” The class members’ state there was no mandate from the majority of the Algonquin Nation to undertake this process. 15 28. The class members state that by April 2004 the land claim negotiation process was introduced to the registered members of the Algonquins of Pikwaknagan and it stated as follows: “As an initial step, we are beginning a process to develop/establish Beneficiary Eligibility Criteria for the identification of individuals who will, when they have met the criteria, be eligible to receive benefits in the future that may flow form the expected settlement agreement.” At the same time, the law firm of Blaney McMurtry and lawyer Robert Potts was introduced as chief negotiator. The class members state that this really was evidence of no mandate to negotiate, an introduction of an electoral system foreign to the traditional Algonquin government and the identification of potential benefits unidentified. 29. The Algonquin/Amikwa/Nipissing Anishnaabeg Plaintiffs state that by September 26, 2005 the body known as ANND no longer assumed a negotiating role, as it was replaced by a body called the Algonquin Negotiation Representatives (ANRs) to represent the interests of the Algonquins of Ontario. In total, there were 16 ANRs made up of as follows: nine off-reserve communities of Antoine, Ardoch, Bancroft, Bonnechere, Greater Golden Lake, Madawa/North Bay, Ottawa, Sharbot Lake and Whitney, each having one vote and Pikwaknagan having 7 votes made up of Chief and Band Council of the reserve. None of these ANRs represent the grassroots of the traditional Algonquin Peoples and has no members from the Province of Quebec, who are a significant part of the Algonquin Nation. 16 30. The Algonquin/Amikwa/Nipissing Anishnaabeg Plaintiffs state that there is in fact no meaningful negotiation, as the principle negotiator works out positions with Ontario and Canada and then puts it in front of the ANRs to be approved, under the constant threat that if not approved, the negotiations will end. 31. The Algonquin/Amikwa/Nipissing Anishnaabeg Plaintiffs state that this process is another form of fraud, abuse and pretence as outlined in the Royal Proclamation of 1763 again being perpetrated on the Algonquin Nation designed to formalize the dispossession of traditional Algonquin homelands and extinguish Algonquin entitlement to lands and resources, by the few on behalf of the many. It is designed to divide and conquer the Algonquin Nation by excluding legitimate Algonquin/Amikwa/Nipissing communities from this process, including the Algonquins from the territory known as Quebec. 32. The Algonquin/Amikwa/Nipissing Anishnaabeg state that the government of Ontario and Canada breached the duty of consulting and accommodating true Algonquin Nation communities, by excluding them from the process, by not providing funding to the Plaintiffs herein and by only providing funding and consultation to the described Defendant AOO. The honour of the Crown is breached in these circumstances. 33. The Algonquin/Amikwa/Nipissing Plaintiffs herein state that the Crown, in its various forms, owe a duty to the class members to act in good faith with them and are required to consult and accommodate them in their land claim and must compensate them for lands taken improperly since the Charter of the Hudson’s Bay Company of 1670 until the present. Furthermore, they are 17 obligated to fund the Plaintiffs to allow them to seek compensation and redress for the dispossession of their traditional homelands through fraud, abuse and pretence. 34. The Algonquin/Amikwa/Nipissing Anishnaabeg Plaintiffs state that the present ANRs described herein do not properly represent the Algonquin Nation and that the Plaintiffs herein are entitled to equal funding on a yearly basis to advance their claim to entitlement to lands and resources, which is different than what is being considered in the present land claim with the ANRs. 35. The Algonquin/Amikwa/Nipissing Anishnaabeg Plaintiffs state that the present land claim being negotiated by the ANRs is for only a fraction for the lands dispossessed and for a level of compensation which does not properly represent the full compensation the Algonquin Nation would be entitled to. On this basis alone, the present land claim is so flawed and lacking in proper mandate from the Algonquin Nation that it should be suspended until proper terms are put forward by the Algonquin Nation of both the territories known as Ontario and Quebec. 36. The Algonquin/Amikwa/Nipissing Anishnaabeg Plaintiffs claim proper entitlement to a declaration of Indigenous title in their traditional homelands, a proper level of compensation for lands dispossessed, funding from all levels of the Crown (Federal and Provincial) in order to properly finalize an agreement, all based on principles enunciated in the United Nations Treaty on the Rights of Indigenous Peoples, Algonquin law, and the common law of Britain. 18 37. The Plaintiffs state that Chief and band councils under the Indian Act of Canada have no authority to assert indigenous title on behalf of indigenous peoples, as they are created by statute and thus agents of the federal government. Moreover, the traditional ancestral lands of the Algonquin/Amikwa/Anishnaabeg are mostly beyond the borders of any given reserve and the legislative authority of chief and band councils is confined to the reserve and all actions are ultimately controlled by the Ministry of Indian Affairs under the Indian Act of Canada. Thus assertion of indigenous title can only be advanced by traditional people. 38. The Algonquin/Amikwa/Nipissing Anishnaabeg Plaintiffs state that they take instructions from traditional Algonquin grandmothers, the proper title holders according to indigenous law, and have been instructed that their assertion of indigenous title revolves around concepts of stewardship, not ownership, and thereby differs from what is known as a land claim. The Plaintiffs herein claim entitlement to be stewards of indigenous land and derive the benefits form the use of the land under this stewardship. Resources and Declaration of Trust – Section 109 B.N.A. Act 39. The Algonquin/Amikwa/Nipissing Anishnaabeg Plaintiffs state that section 109 of the BNA Act of 1867 is as follows: “All lands, mines, minerals and royalties belonging to the several provinces of Canada, Nova Scotia, and New Brunswick at the Union, and all sums then due or payable for such lands, mines, minerals, or royalties shall belong to the several provinces of Ontario, Quebec, Nova Scotia and New Brunswick in which the same as situate or arise, subject to 19 any trusts existing in respect thereof, and to any interest other than that of the province in the same.” The Algonquin/Amikwa/Nipissing Anishnaabeg Plaintiffs state that a trust should have been declared in their favour at Confederation and an interest as described therein. 40. The Algonquin/Amikwa/Nipissing Anishnaabeg Plaintiffs state that they are now entitled to a declaration of trust and an accounting, in both the Provinces of Quebec and Ontario, said accounting to be from 1867 to the present. 41. The Algonquin/Amikwa/Nipissing Anishnaabeg Plaintiffs state that the various levels of the Crown had an obligation and duty to declare this trust and interest at Confederation, in favour of the Plaintiffs and failure to do so was a breach of the honour of the Crown. This breach of section 109 of the BNA Act of 1867 is an ongoing harm as it deprives the Nation of access to resources which would greatly assist the Plaintiffs in resolving the damaged relationship between the Plaintiffs and the Defendants. 42. The Algonquin/Amikwa/Nipissing Anishnaabeg Plaintiffs state that they are entitled to rely on the sacred wampum belt, called the Sharing Belt of 1701, carried by Elder William Commanda of the Algonquin Nation, which evidenced the promise of the newcomers at Montreal 1701 to share one third among the French, British and the Indian. The Plaintiffs herein state that this sacred wampum belt should be considered by the Court as a Constitutional instrument equal in status to the Royal Proclamation of 1763, the BNA Act of 1867 and section 35(1) of the Constitution Act of 1982. 20 43. The Plaintiffs herein claim that they are entitled to a declaration of trust pursuant to section 109 of the BNA Act of 1867 as against the Defendants. The Plaintiffs state that they are entitled to an accounting for all “the lands, Mines, Minerals, and Royalties” which are subject “to any Trusts existing in respect thereof, and to any Interest other than that of the Province in the same.” The Plaintiffs state they are entitled to have this trust declared and a compensation provided to them from 1867 to the present. The Plaintiffs state that funds should be provided from this trust to enable the litigants to carry on this litigation. Sacred Sites and Stewardship of Indigenous Peoples 44. The Algonquin/Amikwa/Nipissing/Anishnaabeg Plaintiffs herein state that, in particular, they are entitled to a declaration that all sacred sites in the Province of Ontario and Quebec be returned to them for stewardship and possessory right to perform ceremony and ritual according to indigenous law, tradition and custom. The Plaintiffs state that there are numerous Indigenous sacred sites throughout the Province of Ontario, such as Oiseau Rock on the Ottawa River, Barron Canyon in Algonquin Park, Petroglyphs outside Peterborough and Chaudiere Falls (Asticou), including Chaudiere and Albert Islands, in Ottawa in the Ottawa River. The Plaintiffs herein will provide a comprehensive list of sacred sites claimed by the Algonquin Nation at the trial of this matter. 45. The Plaintiffs state that presently Chaudiere and Albert Islands, and Chaudiere Falls (Asticou) located in the city of Ottawa are the subject matter of a plan of 21 development by Windmill Development Group Ltd. This development is sanctioned by the city of Ottawa and is now before the Ontario Municipal Board on a zoning and official plan approvals appeal, which raises the issue of indigenous title. The Plaintiffs herein hereby assert indigenous title to this land, the subject matter of the plan of development of Windmill Development Group Ltd., and state that they have not been consulted on this development. Furthermore, the Plaintiffs stat that the Algonquins of Ontario and the Algonquin Anishinabeg Nation Tribal Council do not represent the Amikwa family of the Algonquin Nation, nor the Amikwa Nation of the Algonquin Nation nor the Anishnaabeg Confederacy of the Algonquin Nation. They have no authority to speak on behalf of the Algonquin Nation on the subject matter of indigenous title to these ancestral lands. 46. The Plaintiffs state that they should be entitled to an interim mandamus order that mandates the provincial and federal governments to consult and accommodate the Plaintiffs on their assertion of title to these ancestral sacred lands. The Plaintiffs state that the chain of title relied upon by Windmill Development Ltd. is deeply flawed and encumbered by the existence of Algonquin indigenous title. 47. The Plaintiffs state that their ancestors performed a sacred tobacco ceremony at Chaudiere Falls (Asticou) and at Chaudiere and Albert Islands as early as 1613. In his account of his 1613 journey up the Ottawa River, Samuel de Champlain described Indian offerings of tobacco to the “Asticou” (kettle) or “la chaudiere.” Champlain wrote: “The water falls...with such impetuosity on a 22 rock that with the passage of time it has hollowed out a wide, deep basin... the water whirls about to such an extent, and in the middle boils so vigorously, that Indians call it Asticou, that is to say, a kettle. This Waterfall makes such noise in this basin that one can hear it from more that two leagues away.” (Samuel de Champlain 1613). 48. The Plaintiffs states that Champlain recorded the tobacco ceremony, in greater detail, as follows: “After having carried there canoes to the foot of the falls, they assembled at one place where one of them with a wooden plate takes up a collection, and each one of them places in this pate a piece of tobacco...the plate is placed in the middle of the group, and all dance about it, singing in their fashion; then one of the chiefs makes a speech, pointing out that for a long time they have been accustomed to making this offering, and that by this means they are protected from their enemies...the speaker takes the plated and throws the tobacco into the middle of la chaudiere (kettle) and they make a great cry all together.” (Samuel de Champlain 1613) The Plaintiffs state that their ancestors, form the Amikwa Nation, participated many times in these sacred tobacco ceremonies, as they travelled in their normal canoe patterns on the indigenous highway, the waterways from French River, through Lake Nipissing, to the Ottawa River, on their way to Trois-Riviere. 49. The Plaintiffs state that the Defendants Windmill Development Group Ltd., Domtar Inc. and the NCC have not properly consulted with the proper indigenous title holders and are presently in breach of Article 2.2 of the Memorandum of Understanding of July 7th, 2014, between the National Capital 23 Commission, Windmill Development Group Ltd. and Domtar Inc. These Defendants have not consulted “with the appropriate Aboriginal groups” and are thus in breach of Article 2.2 aforesaid. 50. The Plaintiffs state that indigenous title to these described lands, as a sacred site, entitles them to a declaration of indigenous title which confers ownership rights similar to these associated with fee simple, including: the right to decide how the land will be used; the right of enjoyment and occupancy of the land; the right to possess the land; the right to economic benefits of the land; and the right to pro-actively use and manage the land. 51. The Plaintiffs state that the right to control the land conferred by Indigenous title means that governments and other seeking to use the land must obtain the consent of the Indigenous title holders. If the Plaintiffs herein do not consent to the use, which they do not, the government's only recourse is to establish that the proposed incursion on the land is justified under Section 35 of the Constitution Act 1982. This has not been done in relation to this sacred site. 52. The Plaintiffs state that the Crown has a duty to consult and this is a procedural duty that arises from the honour of the Crown prior to confirmation of title. The Plaintiffs state that where the Crown has real or constructive knowledge of the potential or actual existence of indigenous title and contemplates conduct that might adversely affect it, the Crown is obliged to consult with the group asserting Indigenous title and accommodate the Indigenous right. The Plaintiffs state that the duty to consult must be discharged prior to carrying out the action that could adversely affect the right. 24 53. The Plaintiffs state that where the Indigenous title is unproven, the Crown owes a procedural duty imposed by the honour of the Crown to consult, and if appropriate, accommodate the unproven Indigenous interest. The Plaintiffs state that they have not been consulted on the planned development for the sacred site identified as Chaudiere Falls (Asticou) and Chaudiere and Albert Island in the Ottawa River in Ottawa, Ontario. 54. The Plaintiffs state that Indigenous title confers on the group that holds it exclusive right to decide how the land is used and the right to benefit from those uses must be consistent with the group nature of the interest and the enjoyment of the land by future generations. The Plaintiffs state that government incursions not consented to by the title-holding group must be undertaken in accordance with the Crown's procedural duty to consult and must also be justified on the basis of compelling and substantial public interest, and must be consistently with the Crown's fiduciary duty to the Indigenous group. 55. The Plaintiffs state that for many years they have been guided by their Algonquin Spiritual Elder, William Commanda, who passed into the Spirit World on August 3, 2011. The Plaintiffs state that they are familiar with the vision William Commanda held for this sacred site and that they are in full agreement with the implementation of Grandfather William Commanda's vision and would support its development at this sacred site. Grandfather William Commanda's vision of a healing and reconciliation centre for all nations is in keeping with the use of this by his ancestors which was a place of 25 meeting and ceremony for all nations. This vision is consistent with the group nature of the interest and the enjoyment of the land by future generations. 56. The Plaintiffs state that they are entitled to interim orders of this Court to mandate the Crown and the proposed developer to consult and accommodate the Plaintiffs herein. Furthermore, the Plaintiffs state entitlement to a stay of proceedings of the Ontario Municipal Board hearings on this matter pending proper consultation and accommodation and pending the determination of the proper rights holder to indigenous title. The Plaintiffs state that they will seek injunctive relief and and order that consultation or accommodation be carried out. 57. The Plaintiffs state that all of the principles enunciated above apply to all sacred sites to be identified by them within this litigation. The Plaintiffs state that the issue of stewardship under the laws, tradition and customs of the Algonquin Nation is the standard by which this Court must determine the Indigenous title issue of all sacred sites. The Plaintiffs state that it is incumbent on this Honourable Court to determine the proper use of the ancestral sacred lands through the prism of indigenous laws, traditions and customs. Hunting Party Constitutional Rights 58. The Algonquin hunting party identified in Schedule “B” to this statement of claim state that they should have their constitutional issues with the Ministry of Natural Resources resolved through this litigation and not through the Provincial Offences Courts, nor the Provincial Court. Presently, these are three different courts, in Sudbury, North Bay and Pembroke, all involved in the 26 determination of their constitutional question, which is identified in all three jurisdictions. 59. The Algonquin hunting party state that their core constitutional issue is determined by the assertion of Algonquin indigenous title in the place where the hunt occurred. All of the hunters in Pembroke conducted their hunts in Algonquin Park, a place that was illegally taken over by the Province of Ontario without proper consultation with the indigenous title holders. Algonquin Park continues to be encumbered by an unresolved Algonquin indigenous title. 60. The Algonquin hunting party state that the hunters in North Bay and Sudbury all hunted in unceded Algonquin territory. The Defendant Attorney General of Ontario views the territory of the hunt as covered by the Robinson Huron Treaty of 1850. The Algonquin hunting party disputes this and asserts Algonquin Indigenous title in the territories where the hunt took place. The Algonquin party will lead evidence to demonstrate that this area is ancestral Algonquin land. 61. The Algonquin hunting party states upon assertion of title to these lands that the honour of the Crown requires that the Crown consult and accommodate the title holders upon their assertion of indigenous title. Despite requests made to the Crown, the Crown has referred to consult. The Crown is now in breach of their duty to consult and accommodate. The Algonquin hunting party claims entitlement to an interim order of this Court mandating the Province of Ontario to consult and accommodate the Algonquin hunting party. 27 62. The Algonquin hunting party state that principles of judicial economy dictates that the constitutional question advanced in all three jurisdictions should be determined by the Superior Court in the within litigation. Furthermore, the Provincial Offences Court and the Provincial Court do not have jurisdiction to declare indigenous title. The Plaintiffs state that only the Superior Court has jurisdiction to declare indigenous title and therefore the Algonquin hunting party should have their constitutional question determined by the Superior Court. 63. The Algonquin hunting party state that they are entitled to an interim orders of the Court, to stay the proceedings in Sudbury, North Bay and Pembroke courts and an order declaring that the proper jurisdiction for the determination of the constitutional question in the hunting charge be determined by the Superior Court in the within litigation. 64. The Algonquin hunting group claim entitlement to damages for this breach of the Crown duty to consult and accommodate the Algonquin hunters. Dated: November 22, 2014 ELDERS WITHOUT BORDERS Michael Swinwood Liza Swale 237 Argyle Ave Ottawa, ON K2P 1B8 Ph: 613-563-7474 Fx: 613-563-9179 SCHEDULE “B” Algonquin Hunting Party 28 Sudbury: Gaetan Gauthier, Ruth Gauthier, Shaaron Gauthier, Denis Lefebvre, Wilmer Noganosh, Sharon Noganosh North Bay: Robert Bidal, Edmond Landry, Clifford Landry, Andrew Larabie, Jean Larabie, Mona Denomme, John G. Larabie, Gerald Larabie, Jean Guy Levesque, Ghyslaine Landry, Kenneth Landry, Luc Landry, Gerard Serre, Guy Brazeau, Claude Dupuis, Alain Plante, Jean-Luc Plante, Rodrique Plante, Rheal Bureau, Leonide Ducharme, Gilles Bigras, Marc Bigras, Martin Bigras, Serge Bigras, Roland Larabie, Daniel Plante, Francoise Plante, Eugene Serre, Michael Bidal Pembroke: Dan Lynden Sarazin, Thomas Kohoko, Bruce Meness, Joseph Chartrand, Robert Lavalley, Vincent Lavallee, Shawn Johnson 29 STACY AMIKWABI et al Plaintiffs and THE ATTORNEY GENERAL OF CANADA, et al Defendants ONTARIO SUPERIOR COURT of JUSTICE STATEMENT OF CLAIM ELDERS WITHOUT BORDERS 237 Argyle Ave. Ottawa, Ontario K2P 1B8 Michael Swinwood (LSUC No. 14578R) 613-563-7474 (tel) 613-563-9179 (fax) Solicitors for the Plaintiffs