SUPERIOR COURT

CANADA
PROVINCE OF QUEBEC
DISTRICT OF LONGUEUIL

NO: 505-17-007605-142

DATE: April 30, 2018

 

PRESIDING: THE HONOURABLE THOMAS M. DAVIS, J.S.C.

 

WANEEK MILLER

and

KEITH MORGAN

and

TERRI MCCOMBER

and

MARVIN MCCOMBER
and

JOHN JOSEPH BARRY STACEY
and

NANCY MONTOUR

and

JOSEPH LANNY DELISLE
and

MARIE STACEY

and

NEKA MCCOMBER

and

OMELIS RIVERO LOPEZ
and

BRENDA FRAGNITO
and

CHRISTOPHER FRAGNITO

and
JD2836

 

 

 

505-17-007605?142 PAGE 2

SKAWENNATI TRICIA FRAGNITO

and

NICHOLAS FRAGNITO

and

LOUIE FRAGNITO

and

ELIZABETH CU ROTTE
Plaintiffs

v.

MOHAWK COUNCIL OF 
Defendant

and

ATTORNEY GENERAL OF CANADA

and

ATTORNEY GENERAL OF QUEBEC
lmpleaded parties

 

JUDGMENT

 

1 . OVERVIEW

The Mohawk people of Kahnawacke are divided over membership. This Court is
charged with determining at least some of the legal issues surrounding the Kahnawazke
Membership Law (Exhibit 0-1). Unfortunately its judgment will likely not resolve
the internal conflict over membership in the Kahnawazke Community (Community). As
the members of the Community have said themselves, the resolution of the conflict is
ultimately a task for the people of Kahnawa:ke, all of them, working within the
framework of the present judgment.

That being said, contrary to the position of the Mohawk Council of Kahnawa:ke
if Plaintiffs? Charter rights have been violated, the intervention of the Court is
necessary, as the Charter rights of all Canadians, including indigenous Canadians,
should be protected.

The KML requires members of the Mohawk Nation of Kahnawa:ke, who marry a
non-indigenous person to leave the Kahnawazke Reserve or Territory.1 Does it breach
the rights of these individuals under either the Quebec Charter of Human Rights and

 

1 The Territory encompasses a larger area than the Reserve, as the Mohawks of Kahnawazke have
certain territorial claims to lands around the Reserve. The events and actions complained of in the
present proceeding apply, however, to people living on the Reserve and the Court will, therefore,
generally use this term.

 

 

505-17-007605-142 PAGE 3

Freedoms2 (?Ou?bec Charter?) or the Canadian Charter of Rights and Freedoms3
(?Canadian Charter?), or, perhaps, both?

In the event that the Court concludes that the Charter rights of some or all of the
Plaintiffs have been breached, is the MCK liable in damages toward these individuals?
Even if no Charter violation is found is the MCK responsible for the harassment that
certain of the Plaintiffs allege to have suffered?

Is this Court competent to reinstate the memberships of certain Plaintiffs who
have been excluded from the Band or denied membership in it?

Finally by way of introduction, the MCK did not argue in the present matter that it
has the right to autonomous government nor did the MCK adduce into evidence facts in
support of its historical inherent right to autonomy and to control membership. It
requested that the Court not adjudicate upon these issues.4

2. CONTEXT

2.1 The Admissions and the Membership Law

The parties have agreed on a number of admissions. Some of these warrant
discussion in order to better comprehend the dispute.

The First Nation is governed by the Band Council, a body duly recognized under
the Indian Act (the it is made up of 11 Chiefs and one Grand Chief, elected for a
three year term6 by members duly registered on the Kahnawazke Kanien?keha1ka
Registry About 25% of eligible voters cast their ballots.

In 1981, the Community passed a moratorium on marriages between natives and
non-natives as of May 22, 1981 (?Moratorium?) (Exhibit D-26). The Moratorium
confirmed that those in mixed marriages were unable to benefit from a significant
number of services including residency in the Territory.

[10] The Moratorium set May 22, 1981 as the date after which marriage to a non-
native would disqualify a member from receiving benefits administered by the MCK. it
refers to the loss of one?s Band number and the loss of the right to reside in
Kahnawazke, among other lost services.

 

CQLR, c. C-12.

Part 1 of the Constitution Act, 1982, being Schedule to the Canada Act 1982 (UK), 1982, c. 11.
MCK argument, para. 21.

R.S.C., 1985, c. l-5.

The duration of the term was increased to three years with the 2009 elections.

0501me

 

 

505-17-007605-142 PAGE 4

[11] The Kahnawa:ke Mohawk Law (Exhibit was adopted in 1984 and is much
less detailed than the 2003 law, now before the Court. It provides for the loss of
residency, land allotment and land rights for those who marry non-natives. It does not
specifically refer to their membership being revoked. In effect, it confirmed the
conditions set out in the moratorium

[12] Then in 2003 the current Kahnawazke Membership Law was adopted. The
impugned provisions, sections 20.1 and 20.2 read as follows:

20.1 A member who:
a) married, or marries, a non-Indigenous person after May 22, 1981, or

b) commenced, or commences, after May 22, 1981, a common-law
relationship with a person who has no Kanien'keha:ka or Indigenous
Hneage,

will have their entitlement to receive any of the benefits and services to
which they would otherwise be entitled as a member of the
Kanien'kehazka of Kahnawa:ke, suspended for so long as they remain
married or in a common-law relationship with the non-indigenous person.

20.2 Notwithstanding section 20.1, when the non-Indigenous person referred to
in section 20.1 was raised in the community of Kahnawa:ke, the member's
right to reside within the Territory will not be suspended.

[13] It is common ground that the MCK has not applied to have control of its own
membership registry as permitted under the Indian Act.

[14] In fact the registry under the Indian Act contains almost twice the number of
Kahnawa:ke Mohawks as the KKR.

2.2 Other Relevant Sections of the KML

[15] To fully understand and decide on the issue before it, the Court cannot limit itself
to a review of sections 20.1 and 20.2. Other sections are relevant.

[16] Children from mixed marriages are treated differently than children from
indigenous marriages in the KML. Section 11.1 governs the situation of children born to
indigenous parents:

11.1 Every child, through their parent or guardian, is eligible to apply to
become a member at birth if he or she is identified as a Kanien?kehazka of
Kahnawa:ke and if he or she satisfies all of the following criteria:

a) is born of one member,

 

 

505-17-007605-142

[17]

b)


is born of the other person who has Indigenous lineage,
has four (4) or more Indigenous great-grandparents,

is identified as having, or is willing to avail themselves of the established
Kahnawa2ke process of seeking a Kanien?kehaka clan, and

who is not on another Indigenous community membership list.

Section 11.4 governs those born of mixed marriages:

11.4 A person who is not born of two (2) members, is eligible to apply for
membership of the Kanien'kehazka of Kahnawazke, at the age of eighteen
(18) if he or she satisfies the following criteria:

[18]

15least four (4) Kanien'keha:ka great-grandparents,

speaks, or is committed to learning Kanien?keha,

respects mother earth,

is identified as having, or is willing to avail themselves of the
established Kahnawa:ke process of affiliation in seeking a
Kanien'kehazka clan,

has and maintains ties with the community of Kahnawake, and

honors the customs and traditions, and must comply with the codes,
laws and regulations of the of Kahnawazke.

Other sections relevant to the debate include:

Subject to Kahnawa:ke's laws, regulations and policies, members of the
Kanien'keha2ka of Kahnawa:ke have the following, entitlements, and

privileges with regards to benefits and services:

a)
b)

c)

to reside within the Territory,
to participate in the selection of Kahnawa:ke leaders,
to seek and hold a leadership position,

to own and transfer to other members, interests in lands within the
Territory,

to receive education services,

to own and operate a business,

 

 

505-17-007605-142 PAGE 2 6

g) to receive housing assistance,

h) to receive services from social, health, welfare and economic
departments or programs of the Mohawk Council of Kahnawa:ke,

i) to be buried on land within the Territory.


20.6 A member who commits a material breach of:
a) any of the criteria on which his or her membership is based,
b) any of his or her responsibilities as a member, as set out in this Law,

c) the conditions, limitations or restrictions that are attached to his or her
membership, if any, or,

d) their Member's Pledge,

may have their membership suspended or revoked.

2.3 The Application of the KML

[19] The KML has been applied inconsistently since its adoption and is now under
review. Former Grand Chief Michael Ahrihron Delisle explained that the real focus has
been to encourage compliance, but that up to the present no one has been forcibly
removed from the Reserve.

[20] Requests to be instated or reinstated onto the KKR are also a subject of
controversy. Section 8 of the KML provides that the Council of Elders is the authority
charged reviewing and deciding these applications, as well as those related to
revocation of membership. Its role was suspended in 2007, although the KML was not
modified, with the result that the requests of several people to be reinstated onto the
KKR are in abeyance. By the same token, no one has been removed from the KKR
since 2007.

[21] Another effect is that former members, who have been removed from the KKR
have been denied services for members of their families. Exhibit D-26, an undated
document, sets out the consequences of marriage to a non-native:

As of that date, any Indian man or woman who marries a non-Indian man or
woman is not eligible for any of the following benefits that are derived from the
Kahnawake Mohawk Territory and/or as administered by the Mohawk Council of
Kahnawake. As well, status cards will not be issued to divorced non-Indian
women or renewed if lost.

 

 

505-17-007605-142 PAGE 7

Band number

Residency (to live in Kahnawake)

Land allotments

- Housing assistance loan or repair

Welfare in Kahnawake only

Education in Kahnawake only

Voting privileges in Kahnawake only
Burial

Medicine in Kahnawake only

Tax Privileges in Kahnawake only

[22] One way that compliance with the KML has been encouraged is through letters
to ?offending? parties. Letters were sent to several people in 2010, including Waneek
Miller. Others were sent in 2014 and 2015 (Exhibit P-5), based on a list of about
70 offending residents. People were advised that they had no right to live in the
Territory. Some were put on notice to vacate.

[23] Some Mohawks, Krissy Goodleaf and Amanda Deer being two examples, have
left of their own volition. Others like Marvin and Terri McComber have decided to stay
and face the consequences.

[24] The consequences of non-compliance, as of yet, have not been formally
determined by the MCK. However, to some degree the Community has taken matters
into its own hands. Within the Community there is a ?Grassroots? organization that has
organized protests, largely peaceful, to encourage non-compliant members to leave the
Territory.

[25] Protests took place at the homes of Krissy Goodleaf, Marvin McComber, and
Amanda Deer in 2014. These protests involved a degree of vandalism which was not
sanctioned by the Kahnawa:ke Peacekeepers.

[26] The Grassroots also organized a letter campaign. Mohawks in mixed marriages,
including many long term residents of Kahnawa:ke were delivered letters ?insist[ing] that
your Non-Native partner, co-habitant or tenant vacate the territory no later than May 13?,
2015? (Exhibit P-2).

[27] The MCK does not appear to have been aware of the content of these letters, but
was aware of the campaign, as it encouraged that the letters be sent by registered mail
rather than by hand delivery (Exhibit 0-22).

[28] In 2014 there was also a sign campaign, perpetrm?langeated by unidentified
Community members. The signs reiterated that Mohawk Land was for Mohawks,
imploring non-natives to leave Kahnawa:ke (Exhibit P-29).

 

 

505-17?007605-142 PAGE 2 8

[29] Social media has also been used to target natives married to non-natives. A
pungent example is the post targeting Waneek Miller, relating the reason for the law suit
to a vulgar sexual reference to Ms. Miller?s partner (Exhibit P-27).

[30] The issue of children in mixed marriages gives rise to both practical and legal
issues. There is a degree of bullying that occurs in the schools as some children refer to
these children as half?breeds. Many children of mixed marriages have been denied
services available to other indigenous children on the Reserve. One area where
services are denied is education. Children from mixed marriages have been denied
funding and apparently are unable to attend Mohawk language schools.

2.4 The Kahnawa:ke Reserve

[31] The original land grant to the Mohawks of Kahnawazke encompassed a much
larger territory than the current Reserve. Land was expropriated for the St. Lawrence
Seaway and for other purposes. The Nation is now negotiating with Canada to regain
some of its original territory. If there is an agreement, it would be subject to referendum,
which could be difficult to manage given the discrepancies between the KKR and the
membership list administered under the Indian Act.

[32] The Reserve is also criss-crossed by a number of roads and the South end of
the Honor?-Mercier Bridge is on the Reserve.

[33] The socio-economic climate is challenging. However, the approximately
90,000 cars that pass through the Reserve every day do generate a certain economic
benefit. The people like to have their own businesses, though many males still work as
iron workers in the construction trade.

[34] An important part of the socio-economic climate are the institutions operated by
the MCK. These include a hospital and some schools.

[35] About 1,000 people from outside the Reserve have jobs on it.

[36] The language is in a resurgence. Mohawk immersion classes are being offered
to members.

[37] The beginnings of the resurgence perhaps date back to 1978. At that time all
native children were pulled out of Howard S. Billings High School and repatriated to the
Kahnawa:ke Survival School.

[38] The Reserve has undergone a major infrastructure upgrade, working with grants
under the Indian Act.

[39] The legal system is somewhat of a m?lange of Canadian law and Mohawk law.
Some of the Chiefs believe that Mohawk law would prevail over international law.
Certain Canadian laws are followed, including the Criminal Code, although for some

 

 

505-17-007605-142 PAGE 9

matters, such as gaming, local law is applied. Divorce and family law matters follow
Quebec and Canadian law as do certain property matters.

2.5 The Affected Individuals

2.5.1 Brenda Fragnito

[40] Mrs. Fragnito does not live on the Reserve, although she was born there in 1946.
She married a non-indigenous man in 1968 and they left Kahnawazke in 1972. Her loss
of membership was not initiated by the Band. Rather, she lost it due to a provision of the
Indian Act, whereby indigenous women who married non-indigenous men lost their
status under the Act. This legislation was amended in 1985 to give women back their
status under the Act.

[41] Following this Mrs. Fragnito attempted to be reinstated into the Kahnawazke
Band. On September 16, 1986, she was advised that her application would be deferred
and kept on file, pending review of the KML as it then existed. She made a new
application in 2001 and received essentially the same response (Exhibit R7).

[42] Despite not being a member of the Band, Mrs. Fragnito and her husband
operated a furniture store on the Reserve, beginning in 1994 and lasting for
approximately 12 years.

[43] She owns family land on the Reserve and fearful of expropriation encouraged
her son Christopher to obtain his membership in the Band in order to protect the title.
He did obtain it and has built a home on this land.

[44] For many reasons Mrs. Fragnito would like to regain her status; one important
factor would be to have the chance to be buried in the indigenous burial ground. She
has requested a meeting with the Council of Elders, but it has not occurred.

2.5.2 Christopher Fragnito

[45] He applied for membership, having heard through an uncle of the possibility that
the family land might be expropriated. Ironically, his mother attended the hearing before
the Elders with him, but her situation was not discussed.

[46] Christopher is categorical that he should not have been required to go through
the process to be recognized as a member of the Band, as it goes without saying, given
that his mother is Mohawk.

[47] He now lives on the Reserve in relative peace, although he has been called a
half-breed.

 

 

505-17-007605-142 PAGE 10

2.5.3 Skawennati, Nicholas and Louie Fragnito

[48] They are the sister and brothers of Christopher. None of them live on the
Reserve at this time, nor have they attempted to obtain membership status in the Band.
All express the view that they should not have to apply to be members, as they identify
as Mohawk and having a Mohawk mother they should be on the KKR without any
questions being raised.

[49] Skawennati?s outlook on the situation is different, in that she has made significant
efforts to immerse herself in the culture and to become more familiar with it. With her
children, she participated in the Peacemakers? Journey in 2012, visiting the Five
Nations. She has worked teaching Mohawk youth.

[50] She has never felt unsafe on the Reserve, but was refused money for education.
Skawennati was able to get money from Indian Affairs. She does not benefit from other
services.

[51] Skawennati is interested by the membership situation and has attended at least
one meeting in 2013, where it was discussed. She was not permitted to speak.

[52] She would like to move back to the Reserve, but is concerned, due to her spouse
being non-native. The communications between the Band and her mother (Exhibit P-7)
are perplexing for her and seem to be a part of her reasons for not returning. Though
the media (Exhibit P-8), Skawennati is also aware of the protests in front of the homes
of Amanda Deer and Mrs. and Mr. McComber. Again these situations allow her to
consider that a return to live on the Reserve would entail a degree of risk for her and her
family. Her partner has also indicated that he would not be comfortable moving to the
Reserve.

2.5.4 John Barry Stacey

[53] He is a Mohawk who was willed the famin home. He moved back to the Reserve
in 2012.

[54] He married a non-native in 1987. in June 1988, he received a letter advising him
that he had relinquished ?all rights and benefits derived from the Kahnawa:ke Mohawk
Territory? (Exhibit P-34). He was also removed from the membership registry as it
existed, although the letter does not refer to a loss of membership.

[55] Since his marriage he has consistently been denied services. So have his
children. He has attended meetings, including the Community Decision Making
Process. Essentially, he has not been able to speak as he is a non-member.

[56] His wife was the object of intimidation to such a degree that they moved off the
Reserve in 2015 and Mr. Stacey sold his house to his brother.

 

 

505-17-007605?142 1 1

2.5.5 Marie Stacey

[57] She moved back to the Reserve in 2013 and lives in her parents? home with her
non-native partner.

[58] Both of her parents are Band members.
[59] She received the Grassroots notice to leave (Exhibit R2).

[60] Her daughter has been refused services and Ms. Stacey has also been denied
the right to vote in Council elections, as she is not on the KKR.

[61] She has been to some meetings where the issue of membership has been
discussed. One of the participants suggested going back to the 70?s when ?we burned
their [non-natives] houses?. Grand Chief Norton did not intervene when this remark was
made.

[62] Ms. Stacey is scared of what is happening on the Reserve, scared that people
might come to her home. Being a Plaintiff in the present law suit has given her little
comfort, as at least one Facebook post referred to the Plaintiffs as having targets on the
back of their heads.

2.5.6 Terri McComber

[63] Mrs. McComber is a non-native and has been married to Marvin McComber
since March 1991. She has felt harassed for the entire time, but now the harassment
has become unbearable. The current animosity of the Community toward the
McCombers is in spite of the fact that Mrs. McComber has been a volunteer in the
Community, a teacher in the school and a foster parent.

[64] Her daughter Mariah was refused funding for her education (Exhibit P-33). She
did get funding from Indian Affairs.

[65] The first attempt to evict the family occurred shortly after Mrs. McComber moved
onto the Reserve; Mrs. McComber was approached by Council and given an eviction
letter, which gave her 30 days to leave. Her husband was at work. Their property was to
devolve to the MCK. The blockade of the Honor?-Mercier Bridge at the time seems to
have diverted attention from this desire to evict them.

[66] In 1991 there was a protest in front of their house.

[67] The 2014 protest was worse. Mrs. McComber received a call from her former
foster child that a protest was about to happen. It did and went on for 14 hours.

[68] The vehicle of their daughter and their house were spray painted.

 

 

505?17-007605-142 PAGE 12

[69] Mrs. McComber was referred to as the ?white woman? and the children were
referred to as ?half-breeds?. Her husband Marvin was referred to as a ?piece of shit?.

[70] Their 8 year old child was scared, although he was only there for part of the time.

[71] Something, perhaps a Molotov cocktail, was lit in the back of their home. Those
who lit it were chased away, before significant damage was done.

[72] The peacekeepers did not intervene, telling Mrs. McComber that she was
breaking Mohawk law.

[73] There have been threats that their house would be burned down.

[74] Mrs. McComber was at Amanda Deer?s home during the protest there. She
describes it as chaotic. Two people were running in and out of the yard .

[75] She would like her children to be treated fairly in the Community and puts the
onus on MCK to ensure that this occurs.
2.5.7 Marvin McComber

[76] His real knowledge of the ?Marry Out, Get Out? policy goes back to his marriage
to Terri.

[77] Mr. McComber learnt that he had been removed from the KML in 2004, but does
not exactly know when his name was taken off.

[78] He has not been personally threatened, but has always had an uneasy feeling
due to Terri being non-native.

[79] The family was denied services in 1994, when it sought to obtain a mortgage
from the relevant Kahnawazke service.

2.5.8 Neka McComber

[80] Her situation is somewhat different. Her husband is a Cuban national and spends
time on the Reserve sporadically. She is native herself and is on the KKR.

[81] She nonetheless received the Grassroots letter (Exhibit P-2) asking her to leave
the Reserve.

[82] Even before this she did receive some hostile treatment, as her mother is
Yugoslavian. She remembers being called a white bastard because of this while in
elementary school.

 

 

505-17-007605-142 PAGE 13

2.5.9 Waneek Miller

[83] Ms. Miller has always been an active member of the Community, to the point
where she was on the front line at the Oka Blockade in 1990, was stabbed and was
taken into custody.

[84] As an Olympic athlete she represented Canada in the 2000 Summer Olympics,
but believes that she was also representing the Mohawk Nation. She wanted to show
that Mohawks can be the best in the world. She often wore Mohawk dress at Olympic
events.

[85] She met her partner Keith Morgan at the Olympics. They have been a couple
since 2002 and lived together on the Reserve from 2003 until 2005.

[86] Her name has not been removed from the KKR.
[87] She and Mr. Morgan are the parents of three children.

[88] Shortly before the birth of their first child, in 2010 they were constructing a home
on the Reserve. A petition was circulated asking for the construction of the home to stop
when Ms. Miller was eight and one half months pregnant. She sought a copy of the
petition from the MCK with a view of reaching out to the people who had signed it. The
MCK did not provide a copy (Exhibit P-62).

[89] In fact the MCK did not provide any assistance with the situation.

[90] In 2014, Ms. Miller was advised by a reporter that she was on an eviction list.
She attended a number of meetings on the membership issue, but received only anger
and hate in return. She spoke at a Band meeting of 200-400 people in March 2015, and
she and her position were attacked for two hours afterwards.

[91] Two Chiefs tried to put forward a more conciliatory position on the KML at this
meeting and they were censured for doing so (Exhibit P-13).

[92] This was followed up by online violence (Exhibit Her sisters were attacked
as well through hate mail.

[93] Despite all of this Ms. Miller would like to return to Kahnawazke and would like
her children to have access to the culture. She believes that she can contribute to the
Kahnawazke Community. However, she is fearful of the consequences of moving back
to Kahnawa:ke for her family.

[94] The evolution of the situation leads Ms. Miller to conclude that the leadership of
the MCK has been deficient. The Community should be administered in a way that
people feel safe, and not in a way where violence is tolerated.

 

 

505-17-007605-142 PAGE 14

2.5.10 Keith Morgan

[95] His pain is essentially that of his spouse Ms. Miller. Mr. Morgan has not really
been the victim of direct harassment other than a sign in front of the house urging him to
go back to Lasalle.

[96] He would like to live on the Reserve to allow his children to benefit from their
native culture. Mr. Morgan would also be prepared to practice medicine in the
Kahnawa:ke Community if his family is permitted to live there.

2.5.11 Joseph Lanny Delisle

[97] Mr. Delisle is a long term Kahnawazke resident. He has not felt unsafe, but has
felt unsafe for both of his non-native spouses.

[98] in 1989 he, his step-son and his first wife, Kathleen Cavanaugh received letters
advising them that they were in breach of the membership law (Exhibit P-6). He is afraid
that the same thing will occur with his current wife, Nancy Montour.

[99] Despite these letters, he has not been removed from the KKR.

[100] His own family has been at odds with him over his marriage to a non-native.

2.5.12 Nancy Montour

[101] Mrs. Montour is non-native. Joseph Delisle is her second Mohawk husband.
Hence, she has lived on the Reserve for around forty years, has worked there and has
many friends. She was removed from the membership registry, following her divorce
from her first husband.

2.5.13 Elizabeth Curotte

[102] She is a Mohawk of Kahnawazke, although her mother was an indigenous
women from the West Indies. This led to some discrimination when she was young.

[103] She has been married to a non-native for over 40 years. After her marriage she
moved away from the Reserve, but moved back after her father?s passing. She has
moved into the family home.

[104] Both she and her spouse have worked on the Reserve, at times in Band
operations such as the hospital.

[105] She received the Grassroots letter (Exhibit P-2) requiring her to leave the
Reserve. Mrs. Curotte has been at Community meetings with friends to discuss
membership on two occasions, but they were not allowed to speak.

 

 

 

505-17-007605-142 PAGE 15

[106] She was hopeful of receiving some assistance with her ageing home. Some
services were provided in 2002. In 2010, she looked to the Kanien?kehazka Funding
Association for more help. On September 27, 2012 she finally got approval for a new
house from the Association; she was to be provided an amount of $102,500. This
assistance was withdrawn on October 12, 2012, as the MCK Water and Sewer Unit
would not extend the water and sewer pipes to the new house. This is apparently
because she was not a Kahnawa:ke member, being married to a non-native (Exhibit
P-32).

[107] She was also refused funding for her children?s education due to her
membership status.

2.5.14 Amanda Deer

[108] Ms. Deer is in a relationship with a non-native man, who is believed to have a
criminal record. The Grassroots movement took it upon itself to have him leave the
Reserve. To achieve this they organized a march in front of her home.

[109] There was some property damage. Although the Peacekeepers were present
they did not intervene, other than to convince Ms. Deer?s partner to leave the Reserve,
in fact finding the couple a hotel and driving them there. Ms. Deer was told by a
Peacekeeper that no one demonstrating at her home would be arrested.

2.5.15 Tracy Deer

[110] Ms. Deer is a well-known film maker who produces Mohawk Girls. One of the
themes of Mohawk girls is the limited dating pool in Kahnawa:ke.

[111] She has a non-native spouse and a home on the Reserve. The couple also has a
home off the reserve and split their time between each residence.

[112] She expresses having a degree of anxiety about her situation due to the
membership issue, citing her attendance at a recent ?White Christmas? event. However,
there were no issues at the event.

[113] Her television show is controversial in the Community. Some members love it;
some have been very critical. This past year, the permit application process, to allow
filming on the reserve, took much longer than in the past. The MCK did not provide an
explanation for the delay, but it ultimately issued the permit.

2.5.16 lokennoram McComber

[114] Mr. McComber has decided to respect the KML. He and his non-native partner
live off of the Reserve. He and his spouse continue to participate in events on the
Reserve and they are well received. He attends Community meetings and does not feel

 

 

505-17-007605-142 PAGE 16

excluded from the Community. In fact, he is allowed to speak at membership meetings
and is still on the KKR.
2.6 The Grassroots movement

[115] A number of Kahnawa:ke members testified as to the Grassroots movement. It
fully espouses that membership in the Band should be for Mohawks exclusively. Non-
natives should not be permitted to live on the Reserve.

2.6.1 Joann Patton

[116] Ms. Patton is a committed member of the Grassroots. It wants to preserve the
Mohawk?s land, the Reserve and the Mohawk heritage. For her the ?Marry Out, Get Out?
rule is important. Before it was adopted there were many non-natives on the Reserve
and the language was becoming a secret language.

[117] The protests took place in front of the homes of people who, according to
Ms. Patton, shouldn?t be living on the Reserve.

[118] The Grassroots was also involved in the 5-7 day protest in front of Krissy
Goodleaf?s construction site in 2014, which led to the project being abandoned.

[119] The Grassroots has continually complained about non-native spouses to the
MCK. It advises the MCK when it believes someone is in breach of the KML (Exhibit
P-23).

[120] It was also behind the campaign of eviction notices in 2014 (Exhibit P-2).

[121] Neither the MCK, nor the Peacekeepers intervened in the demonstrations
organized by the Grassroots.

[122] Ms. Patton confirms that certain members of the MCK attend meetings of the
Grassroots.

2.7 The Chiefs

2.7.1 Chief Carl Horn

[123] He has been a Chief and on the MCK for nine years. Chief Horn is in charge of
lands, sports and recreation, and other files.

[124] Chief Horn is not part of the Grassroots movement, but has participated in some
of its activities. He was also aware of the eviction notices sent in 2014.

[125] He has received complaints from Community members about non-natives living
on the Reserve and has reported them to the MCK.

 

 

505-17-007605-142 PAGE 17

[126] Chief Horn, and it appears the MCK, were aware of the impending protests at the
Goodleaf and McComber residences. The MCK did not inform the McCombers of what
was about to happen.

[127] For Chief Horn the KML is clear and people should abide by it. However, he is
not aware that the MCK has any studies showing how the KML will assist in preserving
Mohawk culture. Moreover, the MCK did not consider the Quebec or Canadian Charters
prior to its adoption of the KM L.

2.7.2 Chief Kahennanhawe Sky-Deer

[128] She has been a Chief since 2009 and is a strong supporter of the KML. Her
current portfolio includes membership. Some of the current membership issues have
been discussed with Canada.

[129] The expropriation of Mohawk land over time is also a serious question that is
being discussed.

[130] The Chief believes that there is a clash between the views of indigenous and
non-indigenous people over certain questions. An important one for her is that the
Community does not believe in land ownership, whereas non-indigenous people do.

[131] Despite the setbacks over time as a result of Canadian actions, the Community,
the culture and the language of Kahnawa2ke are in a resurgence. She reported that the
Community has 300 fluent Mohawk speakers and 300 people taking language courses.

[132] For Chief Sky-Deer the respect of the KML is important in the continuity of this
resurgence. However, the children of mixed marriages cannot attend Mohawk schools,
a situation that she would like to change. For her identity is important, and she feels for
the children caught between the two cultures.

[133] Chief Sky-Deer has attended the demonstrations, as a Chief, to ensure that they
remained peaceful.

[134] She believes that the membership question is one that can only be resolved
internally, such that no self-respecting Mohawk wound have instituted these
proceedings.

2.7.3 Former Grand Chief Michael Ahrihron Delisle

[135] Mr. Delisle was Grand Chief from 2004 until 2015, having been elected to
Council in 1998.

[136] He was involved in the adoption of the KML. Mr. Delisle believes that indigenous
people have been subject to attempts to eradicate their cultures. The Mohawks of

 

 

505-17-007605-142 PAGE 18

Kahnawazke needed to find a way to protect theirs and the KML is part of that
protection.

[137] The MCL may have sought advice on the application of the Charters to the KM L,
but the former Chief was not specific on that issue.

[138] Mr. Delisle underscores that the means of enforcement have always been
persuasion and education. The MCK wants peaceful application of the KML and has
condemned any violent behavior.

[139] Mr. Delisle?s view is expressed in a press release issued in September 2014:

?While the laws have changed over the years, the community has been
remarkably consistent in its support of the residency requirements,? said Grand
Chief Michael Ahrihron Delisle, Jr. ?Chief Council are obligated to uphold
Kahawa:ke laws, while always being mindful that there will always be those who
aren?t in favor of the law and that we must listen to their concerns and
suggestions. We ask that everyone remain peaceful and respectful during this
emotional time.?7

[140] Mr. Delisle acknowledges that the MCK was aware of certain acts of vandalism
at the McComber?s home.

2.7.4 Grand Chief Joe Norton

[141] He was Grand Chief from 1980, until he was replaced by Mr. Delisle. He in turn
defeated Mr. Delisle in the 2015 election.

[142] Membership has been an issue ever since he has been on Council, Grand Chief
Norton drafted the 1981 Moratorium (Exhibit D-26). He believes that at that time there
were far too many mixed marriages in the Community. While there have been a
significant number of mixed marriages in the past, these were aided and abetted by
Canada, with a view of assimilating the Mohawk nation.

[143] in 1984, it was decided that a law was needed (Exhibit 

[144] For Grand Chief Norton, the current KML is simply a restatement of what has
been Kahnawazke law since the Moratorium in 1981.

[145] Grand Chief Norton believes that the KML is still essential. He does not want the
Band to be providing services to non-Mohawks. He does not want non-Mohawks to use
the land in the Reserve. He believes that continuing to allow mixed race marriages
would place too great a burden on the available land and on the services offered by the

 

7 Exhibit D-17.

 

 

505-17-007605-142 PAGE 19

Band. He also has a concern that without the law Mohawks currently living off the
Reserve who are married to non-indigenous people will want to return.

[146] Grand Chief Norton did not offer any objective evidence to support his position.
Moreover, he does not know to what extent the people who are part of mixed race
couples are involved in the Community or what efforts they have made to embrace the
Mohawk culture.

[147] Like Chief Sky-Deer, he also believes that the dispute has no place in the Courts.
It is up to the Community to resolve it.

2.8 The Community Decision Making Process (CDMP)

[148] The MCK has in some measure expanded the scope of the discussion on
membership. The CDMP was charged with reviewing the issue in 2009. According to
Chief Horn, the MCK wants the process to play itself out at the CDMP level.

[149] For Chief Sky-Deer, it is supposed to be a more inclusive forum for the people to
air their views; more like traditional indigenous government, where the people should
have a voice.

[150] However, not all residents are able to participate in the only those who
are members in good standing on the KKR have the opportunity to speak at CDMP
meetings.

2.9 The Role of the Peacekeepers

[151] The Court heard limited evidence as to the role of the Peacekeepers in the
present dispute. Their role, as seen through the eyes of the interested parties, has been
related above.

[152] The Chief Peacekeeper Duane Zachary also described it. Essentially, the
protests in front of both the Deer and McComber homes were peaceful, such that the
role of the Peacekeepers was one of observation.

[153] Mr. Zachary did have an active role in the discussion that led to Ms. Deer?s
partner agreeing to leave the Reserve with Ms. Deer.

3. THE EXPERTS

[154] Both parties presented experts and agreed that for the purposes of the hearing,
although the formal articles in the Code of Civil Procedure had not been followed, they
would be considered as such.

 

 

505-17-007605-142 PAGE 20

3.1 Gerald Alfred

[155] Professor Alfred?s report dresses a picture of Mohawk society over a long period
of time. In the seventeenth and eighteenth centuries the Mohawks engaged in a
process of adoption and integration into the Community of both Europeans and people
from other tribes. It was part of replacing members of the population who had been
killed in conflict or had died. However, the people were only accepted into the
Community after forced acculturation. Once accepted, ties had to be cut with other
tribes or birth communities.

[156] He also speaks of the modern era (without defining it) where Kahnawa:ke
accepted many non-native people through marriage.

[157] Professor Alfred acknowledges that the Mohawks of Kahnawazke have always
asserted their right to self-government and their right to determine their own
membership; these efforts have been countered over time by the political actions of
France, Britain and, now, Canada. The expanse of their territory has also been
compromised over time.

[158] The last section of his report is entitled ?Control of Membership as an Act of
Survival?. The following quote, in the Court?s view, gives a good summary of how the
Chiefs who testified view the situation:

In Kahnawake there is a commitment to counter Canadian attempts to force
assimilative policies and laws on the community. It is for the most part this
sensitivity to the ever present threat to further erosion of the Mohawk culture and
the strong lineage connection to the land which has driven Kahnawake?s policy
on membership. The community?s development of stringent, genealogy-based
membership regulations must be seen in a wider historical and cultural context
and as an attempt to create a bulwark against the real pressures undermining the
basis of Mohawk distinctiveness and nationhood.B

[159] Yet Professor Alfred continues by pointing out that this approach stands ?against
their historically inclusive approach to membership? and that ?Community members
perceived that their previously inclusive philosophy had resulted in the erosion of the
Mohawk culture in Kahnawake.?9

[160] He also points out some distinctions between the Kahnawa:ke approach and
other First Nations, such as the Akwesasne:

The Akwesasne code arrives at the same results as the Kahnawake Membership
Law, but does so in a more subtle way. in describing who is a member and who
may apply to be a member, the Code is silent on the issue of non-Indians.
Instead of explicitly excluding this group, the Code notes that persons "of native

 

Exhibit 0-29, p. 15.
9 Ibid.

 

 

505-17-007605-142 PAGE 21

ancestry may seek probationary membership.? Membership Code]. In
addition to this, exclusion of non?Indians can occur during the Akwesasne
Membership Board?s review of membership applications. The Board must
consider whether an applicant meets the following criteria or not:

1. was born in the community;

2. demonstrates commitment to culture/Ianguage/traditions;

3. has ties to the community;

4. has clan membership;

5. demonstrates community involvement; or,

6. has reasons for wanting to be a member.10

3.2 Tekarontake (Paul Delaronde)

[161] Tekarontake was presented as a witness on the oral traditions of Kahnawazke.
He did not produce a report.

[162] For Tekarontake, the people of Kahnawa:ke do not have laws, but rather a way
of life and ways to resolve disputes through peaceful means.

[163] For him discrimination does not have a place in the Mohawk culture and the
membership decisions in dispute should only have been made in the face of a true
threat. That been said, he does not view discrimination in the traditional sense.

[164] Prior to the Indian Act, there were many non-natives taken into the Mohawk
Community. Their inclusion was based on contribution, not on blood.

[165] For Tekarontake, the KML does not respect Mohawk traditions.

4. ISSUES IN DISPUTE

[166] Plaintiffs set out the issues as follows:

i. Does the Superior Court of Quebec have jurisdiction to enforce the
Constitution and the law on the territory controlled by the Mohawk Council
of Kahnawazke (hereinafter referred to as 

II. Do the Canadian Charter of Rights and Freedom (?hereinafter referred to
as ?Canadian Charter?) and the Charter of Human rights and freedom
(hereinafter referred to as ?Quebec Charter?) apply to the Mohawk Council
of Kahnawazke?

 

10 Ibid. p. 19.

 

 

 

505-17-007605-142 PAGE 22

Ill. What is the nature of the power to determine its membership and
how does that influence the laws and regulations to which it is submitted?

IV. Do Plaintiffs meet the requirements to obtain a declaratory judgment?

V. Are sections 20.1 and 20.2 of the Kahnawake Membership Law, as well as
the draft for the new membership rules discriminatory under section 15 of
the Canadian Charter and, if so, can they be justified under section 1 of the
Charter?

VI. Are sections 20.1 and 20.2 of the Kahnawake Membership Law, as well as
the draft for the new membership rules discriminatory under section 10 of
the Quebec Charter and, if so, can they be justified under section 9 of the
Charter?

VII. Do sections 20.1 and 20.2 of the Kahnawake Membership Law, as well as
the draft for the new membership rules infringe Plaintiff?s right to liberty
enshrined in section 7 of the Canadian Charter and, if so, can they be
justified under section 1 of the Charter?

Do sections 20.1 and 20.2 of the Kahnawake Membership Law, as well as
the draft for the new membership rules infringe Plaintiff?s right to dignity
enshrined in section 4 of the Quebec Charter and, if so, can they be
justified under section 9 of the Charter?

iX. Do sections 20.1 and 20.2 of the Kahnawake Membership Law, as well as
the draft for the new membership rules infringe Plaintiff?s right to privacy
enshrined in section 5 of the Quebec Charter and, if so, can they be
justified under section 9 of the Charter?

X. ls Mr. Alfred a qualified expert?

XI. What is the appropriate quantum to compensate the violation of Plaintiffs?
fundamental rights?

XII. Was the MCK in bad faith and if so how does that influence the quantum?11

[167] The MCK raises the non-applicability of the Qu?bec Charter. It also posits that
the Superior Court of Qu?bec has no jurisdiction, as the Federal Court has complete
jurisdiction over the matter.

[168] Given its position on the Qu?bec Charter, much of the argument of the MCK
focused on section 15 of the Canadian Charter. For the MCK, the KML stipulation that
the benefit of and use of the territory of Kahnawazke is to be limited to indigenous

 

1? Plaintiffs' argument, pp. 2-3.

 

 

505-17-007605-142 PAGE 23

people does not lead to a conclusion of discrimination based on an enumerated
ground.12

[169] The MCK also raises an argument under section 15(2) of the Canadian Charter
arguing that the impugned provision serves or advances the ameliorative goal identified
by the MCK. Consequently, MCK is not required to show that the provision is necessary
or essential to the goal.13

[170] Finally with respect to section 7 of the Canadian Charter the position is
that Plaintiffs do not have a protected right to live on a reserve; if they did, the MCK has
not breached such right.14

[171] The MCK also submits that even if the Court finds that KML breaches sections 7
or 15 of the Charter, the infringement is justified under section 1 of the Charter.15

[172] On the issue of damages, the MCK also argues that the rules of prescription
apply to a section 24(1) Charter remedy. It further posits that Plaintiffs have not suffered
damages and, moreover, that it would not be appropriate to award damages in the
circumstances.

5. ANALYSIS

5.1 Jurisdiction

[173] Surprisingly, the issue of this Court?s jurisdiction was raised for the first time at
trial. It is, however, one that warrants a certain pause.

[174] For the MCK, the matter involves the judicial review of the decisions of the MCK
around membership and, therefore, the Federal Court has exclusive jurisdiction. The
MCK posits as well that if Plaintiffs are objecting to the KML because of its non-
conformity with the Indian Act, then the proper recourse is judicial review before the
Federal Court.

[175] Section 18(1) of the Federal Courts Act ?5 reads as follows:
18 (1) Subject to section 28, the Federal Court has exclusive original jurisdiction
to issue an injunction, writ of certiorari, writ of prohibition, writ of

mandamus or writ of quo warranto, or grant declaratory relief, against any
federal board, commission or other tribunal; and

 

12 MCK argument, para. 156.
?3 MCK argument, para. 164.
?4 MCK argument, para. 184.
?5 MCK argument, para. 192.
15 R.S.C., 1985, c. F-7.

 

 

505-17-007605-142 PAGE 24

to hear and determine any application or other proceeding for relief in the
nature of relief contemplated by paragraph including any proceeding
brought against the Attorney General of Canada, to obtain relief against a
federal board, commission or other tribunal.

[176] The proper characterization of a Band Council has not been the object of a great
deal of analysis by the courts. In the matter of Canada (Attorney General) v.
Mousseau,17 the parties conceded that the Band Council met the definition of a federal
board for the purposes of section 18. For the Nova Scotia Court of Appeal, however
there was a distinction to be made between the constitutionality of a statute being
attacked and the way that statute was being applied by the Band:

There is, however, a distinction between jurisdiction to determine the
constitutional validity or the applicability of legislation on the one hand and
jurisdiction to pass upon the manner in which a board or a tribunal functions
under such legislation on the other.18

[177] A similar approach was taken in Chief Joe Hall v. Canada (Attorney General):

[40] In my opinion, the principle that emerges from Jabour, L?Anglais and
Lavers is that whenever the validity of a federal statute is challenged either as
ultra vires the power of Parliament (Jabour) or as inconsistent with the
provisions of the Charter of Rights and Freedoms, (Levers) or whenever the
applicability of a federal statute is challenged as trenching on provincial
jurisdiction (L?Anglais), a provincial superior court always has jurisdiction to hear
and decide the case. The reason is that if the Court did not have jurisdiction, the
provincial superior court might be required to apply and enforce a federal statute
that was invalid as beyond the powers of Parliament to enact, or invalid in a
particular application as beyond Parliament?s legislative competence. Such a
result would be inconsistent with Canada?s constitutional structure and the role of
provincial superior courts within that structure.19

[178] In the present matter the MCK is a creation of the Indian Act. The stipulations of
the KML do not conform to the sections governing membership eligibility under the Act.

[179] Assuming that the MCK is indeed a federal board, in the Court?s view the issues
of the present matter and the facts raised in relation to the role of the MCK go beyond
?the manner in which a board or a tribunal functions??0 The MCK has adopted an
internal law and has made various efforts to have it enforced. It is precisely the
constitutionality of that law that is being attacked by Plaintiffs, who also seek damages,
given the manner in which the law has been applied and its effects on Plaintiffs.

 

17 1993 CanLll 3098 (NS CA).
13 Ibid.

?9 2007 BCCA 133.

2" Supra note 17.

 

 

505-17-007605?142 PAGE 25

[180] The damage claim adds another element to the matter, as clearly it is within the
jurisdiction of the Superior Court of Qu?bec. Therefore the principles set out in the
Supreme Court decision of Strickland v. Canada (Attorney General) apply here:

[33] The Court?s jurisprudence, which I have just reviewed, supports the
principle that the provincial superior courts, in the context of proceedings properly
before them, can address the legality of the conduct of federal boards,
commissions and tribunals, where doing so is a necessary step in resolving the
claims asserted in those 

[181] In addition, it is not necessary to first seek declaratory relief in the Federal Court.
In Canada (Attorney General) v. TeleZone Inc., the Supreme Court recognized that
requiring a two-step process would not be appropriate:

[23] I do not interpret Parliament?s intent, as expressed in the text, context and
purposes of the Federal Courts Act, to require an awkward and duplicative two?
court procedure with respect to all damages claims that directly or indirectly
challenge the validity or lawfulness of federal 

[182] In conclusion on this issue, the Court considers that it has jurisdiction over the
entire matter.

5.2 The Applicability of the Canadian and Qu?bec Charters

[183] Both parties concede that the Canadian Charter applies in the present matter.
The Court agrees.23

[184] The applicability of the Ou?bec Charter is more questionable.
[185] Section 88 of the Indian Act is the starting point for this question:

88 Subject to the terms of any treaty and any other Act of Parliament, all laws
of general application from time to time in force in any province are applicable to
and in respect of lndians in the province, except to the extent that those laws are
inconsistent with this Act or the First Nations Fiscal Management Act, or with any
order, rule, regulation or law of a band made under those Acts, and except to the
extent that those provincial laws make provision for any matter for which
provision is made by or under those Acts.

[186] The MCK relies on Jack Woodward?s view, expressed in Native Law, that
provincial human rights legislation does not apply to Band Councils:

Provincial human rights legislation covers employers, service providers and other
entities that are governed by provincial legislation. It does not cover band

 

21 2015 SCC 37.
22 2010 SCC 62.
23 See Corbiere v. Canada (Minister of Indian and Northern Affairs), 1999 CanLIl 687 (800).

 

 

505-17-007605-142 PAGE 26

councils or other entities that are federally regulated: complaints of discrimination
relating to these entities must be filed with the Canadian Human Rights
Commission 

[187] This was also the approach taken by the British Columbia Human Rights
Tribunal in Mathison v. Musqueam Indian Band and Easton, where it refused to hear a
complaint by an employee against the Band Council:

Based on the principles described in Azak v. Nisga?a Nation and others;
Robinson and Lincoln v. Nisga?a Nation and others, 2003 79 (CanLll),
and John v. Ehattesaht Tribe and Billy (No. 2), 2005 397 (CanLll), it is
clear that Mr. Mathison?s s. 13 complaint is outside the Tribunal?s jurisdiction.
Federal jurisdiction arises in this case by virtue of the combined effect of
ss. 91(24) and 91(12) of the Constitution Act, 1867, which grant the federal
government exclusive jurisdiction over ?Indians, and Lands reserved for Indians?
and fisheries, respectively. The Band is a federally regulated employer, and, as
a general rule, under the jurisdiction of the Canadian Human Rights
Commission.25

[188] In the present matter, the question that the Court must answer is whether the
Quebec Charter, particularly as it relates to the peaceful enjoyment of one?s property
and discrimination on the basis of civil status, interferes with the federal government's
exclusive jurisdiction over Indians and lands reserved for Indians.

[189] Some help in answering this question comes from the recent Supreme Court of
Canada judgment in Daniels v. Canada (Indian Affairs and Northern Development):

[51] But federal jurisdiction over M?tis and non-status Indians does not mean
that all provincial legislation pertaining to M?tis and non-status Indians is
inherently ultra vires. This Court has recognized that courts ?should favour,
where possible, the ordinary operation of statutes enacted by both levels of
government?: Canadian Western Bank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R.
3, at para. 37 (emphasis in original). Moreover, this Court has been clear that
federal authority under s. 91 (24) does not bar valid provincial schemes that do
not impair the core of the ?Indian? power: Child and Family Services
Society v. B. C. Government and Service Employees? Union, 2010 800
g, [2010] 2 S.C.R. 696, at para. 3.26

[190] Land is at the core of the Indian power and therefore at the core of the 
oversight in Kahnawa:ke. It is also established law that aboriginal title is held
collectively.27 This further strengthens the notion that the right to control land use rests
with the MCK. Moreover, given the collective nature of land ownership, the same rights

 

24 Jack Woodward, Native Law, ?Provincial Powers and Responsibilities? (Toronto: Thomson Reuters,
2017) at paras. 4?10 to 4?100.

25 2006 91.

25 2016 SCC 12.

27 Tsilhqot?in Nation v. British Columbia, [2014] 2 S.C.R. 257, 2014 SCC 44.

 

 

505-17-007605-142 PAGE 27

in respect of property that one enjoys off of a reserve may not apply to property held on
the reserve. Therefore, the Ou?bec Charter, as it relates to the peaceful enjoyment of
property would not apply to the use of property on a reserve.28

[191] Membership is also at the core of the Indian power. The rules of membership are
set out in some detail in the Indian Act. However, in the case of Kahnawa:ke the
membership issue is somewhat unique as the MCK has not made the required
application under the Act to control its membership lists. Some individuals affected by
the KML have been removed from the KKR, but remain on the list administered under
the Act.

[192] In the Court?s opinion, it is not necessary to rule on the effect of the failure
to obtain the right to administer its own list. The real question is the same, regardless of
whether the list is administered by the MCK or by Indian and Northern Affairs: does the
provision of the Ou?bec Charter prohibiting discrimination on the basis of civil status
impair the core federal power over Indian membership?

[193] In the Court?s view it does. Again, one must be conscious of the fact that
indigenous issues must be viewed with a particular attention to indigenous culture. The
federal government recognized this when it adopted the Act to amend the Canadian
Human Flights Act?9 as section 1.2 of that act requires that in the context of complaints
under the Canadian Human Rights Act30 due regard must be given to First Nations legal
traditions and customary laws.

[194] In addition, the Indian Act contains a complete regime of what the requirements
for registration as an Indian are. While marital status is no longer one of these, the
elements of what makes a person eligible to be a Band member are within the scope of
federal legislative power.

[195] In Ouimette 0. Canada (Procureur g?n?ral), the Court of Appeal stated the
following 

[84] Henri Brun et Guy Tremblay ?crivent a ce sujet:

Les questions que peut soulever Ia Charte qu?b?coise, du point de vue du partage
f?d?ratif des competences, sont donc des questions d'applicabilit? et non de
validit?. II s'agit de savoir, dans chaque cas, si I'on a affaire a un ?l?ment essentiel
d'une comp?tence f?d?raleCharte qu?b?coise ne s'applique
pas, mais dans toute autre circonstance elle peut trouver application car, ?tant
donn? Ia competence provinciale en droit priv? (par. 92(13) de la Loi de 1867), la
Charte qu?b?coise se trouve a determiner pour la province le r?gime de droit
commun en matiere de droits de la personne. Chaque fois qu'elle touche ce
que les tribunaux jugeraient comme un ?l?ment essentiel de ce qui releve du

 

28 See Ouimette 0. Canada (Procureur ge?n?ral), 2002 CanLll 30452 (QC CA) para. 85.
29 8.0. 2008, c. 30.
3? R.S.C., 1985, c. H-6.

 

 

505-17-007605-142 PAGE 28

f?d?ral en vertu du partage des competences, la Charte qu?b?coise ne peut donc
recevoir application.

- Droit constitutionnel, 39 Les Editions Yvon Blais inc., a jour au 16r mai 1997,
896. 31

[196] The Court concludes that the Qu?bec Charter does not apply and will only
consider the matter through the prism of the Canadian Charter.

5.3 Are sections 20.1 and 20.2 of the Kahnawa:ke Membership Law,
unconstitutional, given section 15 of the Canadian Charter?

5.3.1 Section 15

[197] The section reads as follows:

15. (1) Every individual is equal before and under the law and has the right to the
equal protection and equal benefit of the law without discrimination and, in
particular, without discrimination based on race, national or ethnic origin, colour,
religion, sex, age or mental or physical disability.

(2) Subsection (1) does not preclude any law, program or activity that has as
its object the amelioration of conditions of disadvantaged individuals or groups
including those that are disadvantaged because of race, national or ethnic origin,
colour, religion, sex, age or mental or physical disability.

[198] Both paragraphs require consideration.

5.3.2 Section 15(1)

[199] In the Court?s view, sections 20.1 and 20.2 of the KML are discriminatory both on
the basis of family status and civil status, provided that family or marital status are found
to be analogous grounds of discrimination. Clearly the intent of the impugned provisions
is to remove services from Band members who marry a non-native and from the
children of that member, some of whom might qualify for membership under the KML,
but only at the age of eighteen. Considering the test set out in Corbiere v. Canada
(Minister of Indian and Northern Affairs)?, the evidence before the Court shows that:

The impugned law draws a formal distinction between the claimants
and others on the basis civil and family status;

- The claimants are subject to differential treatment based on one or
more enumerated and analogous grounds of discrimination;

 

3? Supra note 28. see also LeFrangois 0. Canada (Procureur g?ne?ral), 2010 QCCA 1243, para. 83-85.
32 Supra note 23.

 

 

505-17-007605-142 PAGE 29

- The differential treatment discriminates, by imposing a burden upon
or withholding a benefit from the claimant in a manner which
reflects the stereotypical application of presumed group or personal
characteristics, or which otherwise has the effect of perpetuating or
promoting the view that the individual is less capable or worthy of
as a member of the Band.33

[200] Corbiere also discusses the road to follow when determining whether something
is an analogous ground:

13 What then are the criteria by which we identify a ground of distinction as
analogous? The obvious answer is that we look for grounds of distinction that
are analogous or like the grounds enumerated in s. 15 race, national or ethnic
origin, colour, religion, sex, age, or mental or physical disability. It seems to us
that what these grounds have in common is the fact that they often serve as the
basis for stereotypical decisions made not on the basis of merit but on the basis
of a personal characteristic that is immutable or changeable only at unacceptable
cost to personal identity. 

[201] The evidence allows the Court to draw the conclusion that sections 20.1 and
20.2 of the KML are largely (if not solely) grounded in a stereotypical belief that non?
native spouses will use the resources and land of the Band in a way that is detrimental
to it and that this will have a negative impact on the ability of the Band to protect its
culture and its land.

[202] However, this belief is not supported by any empirical evidence. None of the
Chiefs who testified were able to provide any objective evidence on the actual impact of
mixed marriages on Mohawk culture or land use. In fact most, if not all, of the non?
native spouses or the family members who have been denied membership, or whose
removal from the KKR has been threatened, have embraced the Mohawk culture.

[203] Skawennati Fragnito has made significant efforts to become more attuned to the
culture.

[204] Waneek Miller has always been a committed Mohawk. Her non-native spouse,
Keith Morgan would like nothing better than to practice medicine on the Reserve and
wants to live there so that the couple?s children can be more immersed in the culture.

[205] Terri McComber has taught in the Community and she and Marvin have also
fostered a native child.

[206] Tracy Deer is trying to provide more awareness about some of the particular
challenges of living on the reserve through her TV show.

 

33 Ibid. para. 55.
34 Ibid. para. 13.

 

 

505-17-007605-142 PAGE 30

[207] Specifically in relation to land use, there is no evidence that would allow a
conclusion that the presence of a non-native spouse limits the ability of the MCK to
manage its land.

[208] With respect to the involvement of native Mohawks in the promotion of the
culture, while it would be wrong to minimize the efforts that are been made by many to
revitalize the Mohawk language and culture, the reality is that only a small minority of
the members of the Community are either fluent Mohawk speakers or are taking
language courses. No probative evidence was led on the participation rates of Mohawks
in other cultural activities. More importantly, no evidence was provided as to how
allowing the children of mixed marriages to receive services or to attend cultural
enrichment activities, such as languages schools, would harm the goal of protecting
Mohawk culture.

[209] All of this leads to the conclusion that the impugned provisions are based on
stereotypical beliefs about mixed marriage. This could well be enough to find that civil
status is an analogous ground, but there is authority for the notion as well.35

[210] The MCK, however, takes the position that the distinction created by the
impugned sections is one between natives and non-natives and is, therefore, not
discriminatory.35 It relies on the Supreme Court decision in Ermineskin Indian Band and
Nation v. Canada,37 where the Court reaffirmed that ?[d]ifferential treatment of different
groups is not in and of itself a violation of section 

[211] The Court does not agree with the MCK that sections 20.1 and 20.2 only create a
distinction between natives and non-natives. There is indeed a distinction in the way
that native and non-native spouses are treated, but there is also palpable discrimination
between natives themselves. A native married to a non-native is not entitled to the same
services as his single native neighbour, or the native neighbour married to a native.

[212] The discrimination is more striking between the children. The KML provides that
?Indigenous Lineage? is direct descent from at least four indigenous great-grandparents.
Many of the children whose parents are native and non-native will meet this definition
but are denied membership and services until the age of eighteen, and then they have
to apply. The children of two native parents are eligible at birth, even though both
categories of children must have four indigenous great-grandparents.

[213] However these provisions of the KML are not before the Court, so it would be
inappropriate to consider this distinction further.

 

35 Miran v. Trudel, 1995 CanLll 97 (SCC), paras. 62 and 63. See also Jean v. Canada (Indian Affairs
and Northern Development), 2009 FCA 377, para. 65.

35 MCK argument, para. 151.

37 2009 800 9.

33 Ibid. para. 188.

 

 

505-17-007605-142 PAGE 31

[214] Finally, there is another curious element in the application of the KML. Those
who marry a non-native and move off the reserve are allowed to remain on the KKR.
Some of those who choose to stay on the Reserve, although married to a non?native
spouse have been allowed to remain on the KKR. This leads to the conclusion that
there is a distinction between natives in the same situation. These differences in
treatment were not explained to the Court.

5.3.3 Section 15(2)

[215] The MCK argues that more emphasis should be placed on section 15(2) of the
Charter and that doing so will demonstrate that the purpose of the impugned provisions
is justified.

[216] The interplay between the two paragraphs of section 15 is discussed in the
matter of Fi. v. Kapp39:

[16] Sections 15(1) and 15(2) work together to promote the vision of substantive
equality that underlies s. 15 as a whole. Section 15(1) is aimed at preventing
discriminatory distinctions that impact adversely on members of groups identified
by the grounds enumerated in s. 15 and analogous grounds. This is one way of
combatting discrimination. However, governments may also wish to combat
discrimination by developing programs aimed at helping disadvantaged groups
improve their situation. Through s. 15(2), the Charter preserves the right of
governments to implement such programs, without fear of challenge under
s. 15(1). This is made apparent by the existence of s. 15(2). Thus 5. 15(1) and
s.15(2) work together to confirm 3. 15?s purpose of furthering substantive
equality.

[217] The MCK argues that the purpose of the KML is to ameliorate the condition of a
disadvantaged group, the Mohawks themselves.

[218] The Court cannot disagree that the actions of the federal government over the
years may have disadvantaged the Mohawks of Kahnawa:ke. An important part of their
land was expropriated for the Seaway. The reserved lands have shrunk in size. For
many years the Mohawks were actively discouraged from practicing their culture.

[219] However, the Court cannot agree that the disadvantages that the group has
suffered make sections 20.1 and 20.2 acceptable under section 15(2).

[220] The test enumerated in Kapp40 for the application of section 15(2) reads as
follows:

[41] We would therefore formulate the test under s. 15(2) as follows. A program
does not violate the s. 15 equality guarantee if the government can demonstrate

 

39 2008 SCC 41, 2 S.C.R. 483.
40 Ibid.

 

 

 

505-17-007605-142 PAGE 32

that: (1) the program has an ameliorative or remedial purpose; and (2) the
program targets a disadvantaged group identified by the enumerated or
analogous grounds. In proposing this test, we are mindful that future cases may
demand some adjustment to the framework in order to meet the litigants?
particular circumstances. However, at this early stage in the development of the
law surrounding s. 15(2), the test we have described provides a basic starting
point one that is adequate for determining the issues before us on this appeal,
but leaves open the possibility for future refinement.

[221] The test has been further refined in Alberta (Aboriginal Affairs and Northern
Development) v. Cunningham.41 The case involved a constitutional challenge to certain
provisions of the Metis Settlements Act,42 which had the effect of excluding Metis, who
had registered as status Indians under the Indian Act, from membership in a Metis
settlement. The Court described the goal of section 15(2) as follows:

[41] The purpose of s. 15(2) is to save ameliorative programs from the charge of
?reverse discrimination?. Ameliorative programs function by targeting specific
disadvantaged groups for benefits, while excluding others. At the time the
Charter was being drafted, affirmative action programs were being challenged in
the United States as discriminatory a phenomenon sometimes called reverse
discrimination. The underlying rationale of s. 15(2) is that governments should
be permitted to target subsets of disadvantaged people on the basis of personal
characteristics, while excluding others. It recognizes that governments may have
particular goals related to advancing or improving the situation of particular
subsets of groups. Section 15(2) affirms that governments may not be able to
help all members of a disadvantaged group at the same time, and should be
permitted to set priorities. lf governments are obliged to benefit all disadvantaged
people (or all subsets of disadvantaged people) equally, they may be precluded
from using targeted programs to achieve specific goals relating to specific
groups. The cost of identical treatment for all would be loss of real opportunities
to lessen disadvantage and prejudice.43

[222] Then, providing clarification to its opinion in Kapp, the Court noted that for a
program to succeed under section 15(2), ?the government must show that the program
is a genuinely ameliorative program directed at improving the situation of a group that is
in need of ameliorative assistance in order to enhance substantive equality.?44

[223] Sections 20.1 and 20.2 do not meet the requirements of this test. The purpose of
them was stated by various Chiefs as being to protect the land and culture of the
Kahnawazke Nation. Notionally, the Court agrees that that purpose is an ameliorative
one, particularly given the historical prejudice that the Nation has been subject to.

 

4? 2011 800 37.
42 R.S.A. 2000, C. M-14.
43 Supra note 41.
44 Ibid. para. 44.

 

 

505-17-007605-142 PAGE 33

[224] However, in passing these sections the MCK, as the indigenous government,
cannot be said to have been creating a program designed to assist a disadvantaged
group within the Community or to have created a program targeted to improve the lot of
a subset of disadvantaged people in the Community. On the contrary, the position of the
MCK is that sections 20.1 and 20.2 are ameliorative for the entire Band.

[225] The impugned sections indeed target members of the Band, but not improve
their lot and not because they are disadvantaged vis-a-vis the other Band members, but
because of whom they have chosen to marry.

[226] Further help in understanding the purpose of section 15(2) can be gleaned from
the following passage in Cunningham?:

[49] Section 15(2), understood in this way, permits governments to assist one
group without being paralyzed by the necessity to assist all, and to tailor
programs in a way that will enhance the benefits they confer while ensuring that
the protection that s. 15(2) provides against the charge of discrimination is not
abused for purposes unrelated to an ameliorative program?s object and the goal
of substantive equality.

[227] Sections 20.1 and 20.2 do not assist one group. They purportedly assist the
whole, to the detriment of a small group. This is not the purpose of section 15(2).

5.4 Are sections 20.1 and 20.2 of the Kahnawa:ke Membership Law,
unconstitutional, given section 7 of the Canadian Charter?

[228] Section 7 reads as follows:

7. Everyone has the right to life, liberty and security of the person and the
right not to be deprived thereof except in accordance with the principles of
fundamental justice.

[229] The most fundamental issue under section 7 relates to the right of a native to live
on the Kahnawa:ke Reserve. This is an issue that remains unsettled under Canadian
law.46

[230] In Cunningham?t7 the Supreme Court recognized that the Metis Settlement Act?
might well have an impact on the right to reside in the Metis Community, but dismissed
the section 7 claim:

[94] It is not necessary to decide whether place of residence is protected by s. 7
because, as found by the chambers judge, any impact on liberty has not been

 

45 Supra note 41.
46 Ibid. para. 93.

47 Supra note 41.
48 Supra note 42.

 

 

505-17-007605-142 PAGE 34

shown to be contrary to the principles of fundamental justice, as required for a s.
7 claim. The deprivation is neither arbitrary nor grossly disproportionate, for the
reasons discussed in connection with the s. 15 claim. As the chambers judge put
it, ?[r]equiring aboriginal adults who might otherwise meet the definition of both
Indian and M?tis to choose which legislative scheme they wish to fall under 

the Indian Act or the MSA is not a requirement which is grossly
disproportionate to the interest of Alberta in securing a land base for the M?tis?
(para. 130).

[231] Given the Court?s conclusion on section 15 of the Charter, a full discussion of
section 7 is not required. However, the Court believes that the present matter can be
distinguished from Cunningham.49 The exclusion of the affected Metis from the Metis
Community was the result of their informed decision to register under the Indian Act. In
the Court?s eyes, that is a decision that is very different from the decision to marry or to
enter into a common-law relationship with a non-native partner. The latter decision goes
to the core of the emotional well-being of a person; the former is one for which there
may be a host of reasons, but none quite like the decision to choose a life partner. In
the Court?s view, the decision to marry a non-native (or to cohabit with a non-native) is
one that in a free and democratic society is fundamental to an individual?s autonomy to
live his or her own life and to make decisions that are of fundamental personal
importance.50

[232] In addition, there are several troubling elements to the application of the KML,
which allow the Court to call into question whether the principles of fundamental justice
are present. The most important of these is that in the discussion of how the KML
should be applied, Mohawks in mixed raced relationships do not have a voice, including
in the CDMP. With respect, this flies in the face of the fact that the natives in mixed
relationships still meet the definition of indigenous person under the KML. They should,
at the least, have a voice in the process.

[233] The suspension of the role of the Council of Elders in the membership process is
also an indication of the absence of fundamental justice in the administration of the KML
and the KKR.

[234] Elizabeth Curotte and Brenda Fragnito have a seemingly clear right to be on the
KKR, yet have no way of pursuing their goal of reinstatement.

[235] In addition, children who were removed or not instated at birth and who reach the
age of majority have no path to reinstatement.

[236] Their children have no way of applying either.

 

49 Supra note 41.
50 B. (R) v. Children?s Aid Society of Metropolitan Toronto, 1995 CanLll 115 (SCC), p. 368.

 

 

505-17-007605-142 PAGE 35

[237] The Court concludes that the section 7 is breached in the present matter. The
attempt to deprive people of their residency on the Reserve based on their decision to
marry a non-native or to be in a common-law relationship with one, in the particular
circumstances of the case at bar, is a deprivation of their liberty and has not been
imposed in accordance with the principles of fundamental justice.

[238] This does not preclude the possibility that there may be other valid reasons for a
Band Council to exclude a person from residency on a reserve.

5.5 Are sections 20.1 and 20.2 of the Kahnawa:ke Membership Law saved
by section 1

[239] Under the test in R. v. Oakes,51 the MCK has the burden of demonstrating that
the impugned provisions are "reasonable" and "demonstrably justified in a free and
democratic society". In the Court?s opinion, the MCK has failed to do so.

[240] Oakes sets out a four step test that the Court must follow. The first part of the
test: ?[that] the objective, which the measures responsible for a limit on a Charter right
or freedom are designed to serve, must be ?of sufficient importance to warrant
overriding a constitutionally protected right or freedom??52 is satisfied here. The
objective of protecting the Mohawk language and culture is one that is of capital
importance to the Band. So is the objective of protecting finite land resources.

[241] The evidence clearly demonstrates that at least until very recently, the Mohawk
culture has been in crisis. The language and the traditional customs have been eroded
and without active measures are in danger of disappearing.

[242] With respect to the Mohawk territory, the traditional territory has greatly
diminished in size starting with the encroachment of the Seaway, or perhaps even
before. The actual Reserve is criss-crossed by provincial roads and bridges. The scope
for economic development is limited.

[243] The objectives of assuring that Mohawk land is for Mohawks and that the
Mohawk culture can flourish are reasonable.

[244] Moving now to the second element of .the Oakes test: ?[are] the measures
adopted carefully designed to achieve the objective in question??53

[245] The position fails on this portion of the test. There is not one iota of
evidence that demonstrates that a family where there is a non-native spouse takes up
more land or uses more services than a family where both spouses are native. The
evidence is to the contrary.

 

5? [1986] 1 S.C.R. 103, 1986 CanLll 46 (800).
52 Ibid. para. 69.
53 Ibid. para. 70.

 

 

505-17-007605-142 PAGE 36

[246] Native individuals, such as Marvin McComber, Marie Stacey and Elizabeth
Curotte, to name but some of the affected individuals, live on land that ?belonged? to
their families prior to their marrying or cohabiting with a non-native. There is no
evidence that they have been able to increase their land holdings as a result of their
marriage or that another Mohawk who would be entitled to land on the Reserve has
been deprived of a land grant because of a mixed marriage couple continuing to live on
the Reserve.

[247] Furthermore, if one considers the situations of Christopher Fragnito and
Elizabeth Curotte, both were permitted to return to land on the Reserve that had been
previously held by another family member. Chiefs Norton and Delisle acknowledge that
the children of mixed marriages, who they now want to exclude from the Reserve, could
apply to return at age eighteen. The KML allows for this as well. It also provides that if a
mixed relationship ends the excluded member can be reinstated, and presumably return
to his or her land. This being the case, excluding members and their children from the
land, for what in many cases will be a finite period of time, will not create more land for
other Mohawks.

[248] As to services, the evidence shows that the children of these individuals have
been denied services so their presence on the Reserve cannot be viewed as depriving
other Mohawks of limited Band resources.

[249] Nor does the exclusion of the children of mixed marriages from receiving
services, particularly education, assist with the preservation of the Mohawk culture.
Again, the MCK did not lead any evidence to demonstrate that children of mixed
marriages are less likely to embrace the Mohawk culture than children of full Mohawk
marriages. In fact the evidence shows the contrary. Witness the that
Skawennati Fragnito has gone to so that her children understand their Mohawk
heritage. Witness also the stated desire of Waneek Miller and Keith Morgan that their
children embrace the culture.

[250] In addition, the KML itself recognizes that these children might well embrace
Mohawk culture, as they can apply to be instated into membership at the age of
eighteen.

[251] All of this leads to the conclusion that the focus on mixed marriages is ?arbitrary,
unfair [and] based on irrational considerations?.54

[252] This conclusion also finds some support in the Alfred report, in that the Mohawks
traditionally permitted mixed marriages and allowed non-natives into the Community
following a period of adaptation.

 

54 Ibid para. 70.

 

 

 

505-17-007605-142 PAGE 37

[253] Given the Court?s conclusion on this part of the Oakes test, it is not necessary to
go further. However, in the Court?s view the impugned provisions do not pass the
minimal impairment element of the Oakes test either.

[254] The notion of minimal impairment was discussed by the Supreme Court of
Canada in Alberta v. Hutterian Brethren of Wilson Colony:

[53] The question at this stage of the s. 1 proportionality analysis is whether the
limit on the right is reasonably tailored to the pressing and substantial goal put
forward to justify the limit. Another way of putting this question is to ask whether
there are less harmful means of achieving the legislative goal. In making this
assessment, the courts accord the legislature a measure of deference,
particularly on complex social issues where the legislature may be better
positioned than the courts to choose among a range of alternatives.55

[255] Even according the MCK the deference to which it is entitled, the Court must
conclude that it has failed ?to explain why a significantly less intrusive and equally
effective measure was not chosen?.56 It is not up to the Court to decide on what that
measure might be or even whether it could be adopted in conformity with the Charter.
However, as the Court has already explained denying a native Mohawk the right to live
on the Reserve because of his or her choice of spouse goes well beyond what might be
necessary to preserve Mohawk culture and land. Denying services to the children of
these couples actually seems to work against the goal of preserving culture.

[256] The Court will declare that sections 20.1 and 20.2 of the membership rules are
inoperative under section 15 of the Canadian Charter of Flights and Freedoms.

[257] The MCK may, however, decide to consider another measure to protect its land,
language and culture, within the limits of the Charter.
5.6 Damages

[258] Plaintiffs ask for damages in the amount of $50,000 each.

[259] The MCK believes that it should benefit from at least partial immunity from
damages in accordance with Mackin v. New Brunswick (Minister of Finance); Rice v.
New Brunswick. 57

[260] The MCK also correctly points out that the damage claim under section 24 of the
Charter is subject to a three year prescription period.58

 

55 2009 SCC 37, [2009] 2 S.C.R. 567.

55 Ibid. para. 54.

57 2002 800 13.

58 Olivier 0. Canada (Procureur general), 2013 QCCA 70, para. 50.

 

 

505-17-007605-142 PAGE 38

[261] Other than the issue of prescription, there are a number of issues that must be
considered to evaluate the damage claim. The first is that the situation of each Plaintiff
is different from the others. It cannot be said that each Plaintiff who may have suffered
damages, would be entitled to the same amount of reparation. Nor did each Plaintiff
suffer damages.

[262] As to the quantum of $50,000 claimed for each Plaintiff, in the Court?s view it is
excessive.

[263] In the matter of Hamelin c. Mohawk Council of Kahnawake,59 an employee was
dismissed from his position at Hydro, working on the Reserve, as he was non-native. He
had always lived on the Reserve and conducted himself as though he was native. While
Justice Lacoursiere did not find the requirement that the job be held by a native to be
discriminatory, he held that the requirement had not been properly communicated to
Mr. Hamelin. As a result he suffered mental distress, anxiety and humiliation and was
awarded $10,000.

[264] In the matter of Shubenacadie Indian Band v. Canada (Human Rights
Commission ,50 the Federal Court, confirmed by the Federal Court of Appeal upheld a
decision of a Canadian Human Rights Tribunal that had awarded three non-native
spouses who were denied social services as non-natives $5,000, $1,500 and $1,000
respectively.

[265] These decisions illustrate that damage awards in somewhat similar situations
have been much more modest.

[266] The other issue, an equally important one, is that only the actions or omissions of
the MCK can give rise to a claim in damages.

[267] Plaintiffs argue that the MCK is in bad faith as it knows that the KML goes
against the Charter and yet chooses to enforce it.

[268] In the Court?s view, the bad faith of the MCK has not been demonstrated. Its
actions must be viewed through the prism of native self?government. The MCK has a
duty to govern on the Reserve. Subject to certain restrictions that may apply under
Canadian law, the mandate of the indigenous government of Kahnawa:ke extends both
to the protection of land and the preservation of language and culture. The Court has
already stated that the goal of preserving Mohawk land for Mohawks is a reasonable
one so it is difficult to find the MCK in bad faith for pursuing this policy. The
preoccupation with language and culture is also reasonable.

 

59 [2004] R.J.D.T. 88.
60 2000 CanLll 15308 (FCA).

 

 

505-17-007605-142 PAGE I 39

[269] Moreover, the KML, albeit in a different form, has been in place since 1980. No
one has taken active measures to challenge it prior to the present lawsuit. In fact, it has
wide spread support in the Community.

[270] Finally, the Court cannot agree that Grand Chief Norton?s remarks prior to his
election (Exhibit P-55) lead to the conclusion that the MCK knew that the KML was
illegal and chose to enforce it anyway. First, at the time he made the remarks, Grand
Chief Norton was not chief. Secondly, even if the MCK harboured some doubts about
the legality of the impugned provisions, doubt does not equate to certainty.

[271] While the context is different, the words of Justice Dalphond in Fioyal Lepage
commercial inc. 0. 109650 Canada Ltd. are helpful:

[46] Que faut?il entendre par t?m?rit?? Selon moi. c?est le fait de mettre de
l?avant un recours ou une procedure alors gu?une personne raisonnable et

prudente, glac?e dans les circonstances connues par la partie au moment on elle
d?pose Ia procedure ou l'argumente, conclurait a l?inexistence d'un fondement

pour cette procedure. ll s?agit d?une norme objective, qui requiert non pas des
indices de l?intention de nuire mais plutot une evaluation des circonstances afin
de d?terminer a lieu de conclure au caractere infond? de cette proc?dure.
Est infond?e une proc?dure n?offrant aucune v?ritable chance de succes, at par
le fait, devient r?v?latrice d?une l?geret? bl?mable de son auteur. Comme le
soulignent les auteurs Baudouin et Deslauriers, pr?cit?s L?absence de cette
cause raisonnable et probable fait pr?sumer sinon l?intention de nuire ou la
mauvaise foi, du moins la negligence ou la t?m?rit? ?.61

[The Court?s underlining])

[272] Although the Court does not agree with the arguments put forward by the MCK,
they are serious and do not allow the Court to conclude that the MCK has exhibited
temerity in trying to enforce the KM L.

[273] Plaintiffs also raised an argument in their written presentation that the MCK is in
bad faith as it receives funding under the Indian Act and then refuses to provide the
funded services to Status Indians who it has removed or excluded from the KKR. With
respect, the perfunctory nature of the proof on the funding formula and on the
appropriate use of funds does not allow the Court to evaluate this argument.

[274] Therefore, given all of the circumstances, the Court cannot conclude that the
efforts to apply the KML were abusive or in bad faith.

[275] Absent bad faith, can there be a condemnation in damages?

[276] The answer to the question lies in looking at the conduct of the MCK during the
three years prior to the institution of the proceedings to determine whether the MCK

 

5? 2007 QCCA 915.

 

 

505-17-007605-142 PAGE 40

committed a fault. It must also be considered in light of the words of the Supreme Court
in Mackin:

78 According to a general rule of public law, absent conduct that is clearly
wrong, in bad faith or an abuse of power, the courts will not award damages for
the harm suffered as a result of the mere enactment or application of a law that is
subsequenth declared to be unconstitutional (We/bridge Holdings Ltd. v. Greater
Winnipeg, 1970 CanLll 1 (800), [1971] S.C.R. 957; Central Canada Potash Co.
v. Government of Saskatchewan, 1978 CanLIl 21 (SCC), [1979] 1 S.C.R. 42). In
other words ?[i]nvalidity of governmental action, without more, clearly should not
be a basis for liability for harm caused by the action? (K. C. Davis, Administrative
Law Treatise (1958), vol. 3, at p. 487). In the legal sense, therefore, both public
officials and legislative bodies enjoy limited immunity against actions in civil
liability based on the fact that a legislative instrument is invalid. With respect to
the possibility that a legislative assembly will be held liable for enacting a statute
that is subsequently declared unconstitutional, R. Dussault and L. Borgeat
confirmed in their Administrative Law: A Treatise (2nd ed. 1990), vol. 5, at
p. 177, that:
In our parliamentary system of government, Parliament or a legislature of a
province cannot be held liable for anything it does in exercising its legislative
powers. The law is the source of duty, as much for citizens as for the
Administration, and while a wrong and damaging failure to respect the law may for
anyone raise a liability, it is hard to imagine that either Parliament or a legislature
can as the lawmaker be held accountable for harm caused to an individual
following the enactment of legislation. [Footnotes omitted]

79 However, as I stated in Guimond v. Quebec (Attorney General), supra,
since the adoption of the Charter, a plaintiff is no longer restricted to an action in
damages based on the general law of civil liability. In theory, a plaintiff could
seek compensatory and punitive damages by way of ?appropriate and just?
remedy under s. 24(1) of the Charter. The limited immunity given to government
is specifically a means of creating a balance between the protection of
constitutional rights and the need for effective government. In other words, this
doctrine makes it possible to determine whether a remedy is appropriate and just
in the circumstances. Consequently, the reasons that inform the general
principle of public law are also relevant in a Charter context. Thus, the
government and its representatives are required to exercise their powers in good
faith and to respect the ?established and indisputable? laws that define the
constitutional rights of individuals. However, if they act in good faith and without
abusing their power under prevailing law and only subsequently are their acts
found to be unconstitutional, they will not be liable. Otherwise, the effectiveness
and efficiency of government action would be excessively constrained. Laws
must be given their full force and effect as long as they are not declared invalid.
Thus it is only in the event of conduct that is clearly wrong, in bad faith or an
abuse of power that damages may be awarded (Crown Trust Co. v. The Queen
in Fiight of Ontario (1986), 1986 CanLll 2725 (ON SC), 26 D.L.R. (4th) 41 (Ont.
Div. 62

{The Court's underlining]

 

52 Supra note 57.

 

 

505-17-007605-142 PAGE 2 41

[277] Notwithstanding Mackin, the Court concludes that certain Plaintiffs are
nonetheless entitled to damages, as the harm that they have suffered goes beyond the
MCK merely applying the impugned sections of the KML. In fact, some of the damages
suffered arise from the failure of the MCK to fully apply the KM L?s provisions.

[278] The particular elements of the position on membership issues, which give
reason for pause are:

There is currently no mechanism for those who have been excluded to
obtain membership on the 

- There is currently no way for the children of mixed marriages to become
members at age eighteen;

- Not all people who have married or are cohabiting with non-natives have
been excluded from the 

- The CDMP process excludes the participation of those who have been
removed from the KKR on the basis of the impugned provisions or who
have not been placed on the KKR, despite being entitled to be on it;

- No formal request has been made by the MCK under the Indian Act to
take control of its membership registers.

[279] The distinction that the KML makes between children of mixed couples and those
of native couples, even if they all have four indigenous great-grandparents, also
troubles the Court, but as these sections are not in dispute, this distinction cannot give
rise to damages.

[280] In particular, the lack of mechanism to be reinstated onto the KKR leads to harm
that is ongoing in some instances. This is not an example of harm arising from the
application of the impugned provisions, but from the failure of the MCK to apply other
provisions of the KML, such that the immunity discussed in Makin does not apply.

[281] In addition, in some cases the harm caused does not arise directly from the
impugned provisions of the KML, but from the conduct extraneous to them. Therefore, if
harm is demonstrated, moral damages might be awarded, despite Makin and despite
the finding that the MCK is not in bad faith.

[282] The passive approach of the MCK to the unrest in the Community also needs to
be assessed. Should the MCK have been more active in discouraging forms of
intimidation practised by some Community members? In fact, it attempted to temper
some of the expressions of the Community. The sign campaign was short lived, as the
signs were removed, some by then Grand Chief Delisle himself. While the MCK was
aware of the letter campaign of the Grassroots, it did try to discourage confrontation,

 

 

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suggesting that the letters be delivered by registered mail (Exhibit-D-22). On the other
hand, it did tolerate the behavior of certain individuals.

[283] The Court concludes that, in the context of the Moratorium, the first membership
law and later the KML that have been in effect since 1981 without formal contestation
until the present proceedings, and apparently with support amongst the electors in the
Community, the MCK cannot be held to be at fault for not intervening when certain
Community members actively expressed support for the KML and called for it to be
applied.

[284] That being said, the situation of each Plaintiff needs to be considered as to how
the MCK treated each of their situations.

5.6.1 Brenda Fragnito

[285] Mrs. Fragnito?s rights should not be affected by sections 20.1 and 20.2 of the
KML, as she married long before the Moratorium was in place. Having been removed
from the Indian Act registry due to her marriage, and then reinstated, she has sought
reinstatement on the KKR since 1986, without success. She should likely have been
reinstated then.

[286] In the Court?s view, the continued refusal to reinstate her on the KKR could give
rise to a claim in damages. However, the evidence does not allow the Court to
determine that Mrs. Fragnito made a formal request to be reinstated within the
prescription period. No damages will be awarded.

5.6.2 The Fragnito Children

[287] No damages will be awarded to the children, other than Skawennati.

[288] Christopher has been able to move back to the Reserve and despite some
discomfort, it cannot be attributed to the actions of the MCK.

[289] As for Skawennati, Nicholas and Louie Fragnito, none has made a formal
request to be put onto the KKR. Each stated that they felt the process should be
automatic. Unfortunately, that is not the process set out in the children in their
situation do need to apply for instatement and can do so at age eighteen. True, the
suspension of the Council of Elders makes this impossible at the present, but there is
no evidence that the Fragnito children?s decision not to apply for membership was
influenced by the current absence of an avenue to instatement. Without a formal
request and unjustified denial by the MCK, damages should not be awarded. The MCK
cannot be presumed to know that they want to be members.

 

 

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[290] Skawennati?s situation is somewhat different, in that she did attend at least one
CDMP meeting in 2013, where she was not permitted to speak. The refusal to let her
speak is problematic as she might well qualify for membership. At the very least, she
has demonstrated significant indigenous lineage and has a clear interest in the
membership process. The refusal to let her speak was discriminatory. For this breach to
her rights she is entitled to moral damages, but in the Court?s view the amount should
be nominal. The Court will award $1,000.

5.6.3 John Barry Stacey

[291] His life has clearly been affected by the KML. In 1988, under the old law, he
received a letter (Exhibit advising him of the removal of his rights under the KKR.
This, however, does not give rise to damages at this juncture.

[292] The fact that he and his family have felt obliged to leave the Reserve due to
intimidation is more concerning. However, the evidence does not allow a conclusion that
the intimidation was at the hands of the MCK or even encouraged by the MCK.

[293] In addition, in Mr. Stacey?s particular case there is no evidence that he asked the
MCK to intervene to have the intimidation cease.

[294] The Court will award Mr. Stacey $1,000 for the same reason as Skawennati
Fragnito. He was also denied the right to participate in the CMDP process.

5.6.4 Marie Stacey

[295] Her situation is somewhat different from some of the other Plaintiffs. The most
troubling item is that her daughter has been refused services. However, given that the
validity of section 11.4 of the KML has not been challenged, no damages can be
awarded, as the MCK remains entitled to apply this section.

[296] In 2014, Ms. Stacey was denied the right to vote in Band Council elections.
Given her right to be on the KKR from birth as the daughter of two members, she should
have the right to vote.

[297] In addition, she was not given a voice during the CMDP meeting that she
attended. Her situation should be treated in the same way as that of Ms. Fragnito. Given
that Ms. Stacey was also denied the right to vote, the Court will award her $2,000 in
moral damages.

5.6.5 Terri and Marvin McComber

[298] The McComber family has been the victim of direct intimidation. The Grassroots
organized demonstration in front of their home in the late summer of 2014. The MCK
was aware of the impending protest and did nothing to stop it. Nor did it inform the

 

 

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family of what was about to occur. While it was ongoing the Peacekeepers did nothing
to stop it. Two Chiefs, Sky-Deer and Horn, were there, not as protesters, but as Chiefs.
It is not clear whether they were mandated to be there by the MCK.

[299] The Court does not condone the protest, but cannot find that the MCK committed
a fault in allowing it proceed. Peaceful protest also forms part of the fabric of Canada
and the protest was largely peaceful, albeit very unpleasant for the McCombers. The
words of the protestors were not condoned by the MCK, nor was the vandalism at the
end of the protest. True, the MCK might have chosen to disband the protest but it was
not unreasonable to let it go forward.

[300] This notwithstanding, the Court considers that the MCK should have informed
the McCombers of the impending protest once it became aware of it. The MCK has a
duty to govern for all of the people of Kahnawa:ke. It could not anticipate that the protest
would be mostly non-violent. The McCombers, particularly with a young child at home,
should have had the option of going elsewhere. They were effectively denied that option
through the decision not to tell them about the protest.

[301] Like Marie Stacey?s daughter, two of the McComber children have been refused
services, in their case under the post-secondary program. However, given the
presumed validity of section 11.4, at this juncture no damages can be awarded.

[302] The Court will award the McCombers $5,000 in moral damages.

5.6.6 Neka McComber and Omelis Rivero Lopez

[303] There is no evidence that the MCK has committed a fault toward either
Mrs. McComber or Mr. Lopez.

5.6.7 Waneek Miller and Keith Morgan

[304] The difficulties for Ms. Miller and Mr. Morgan began at the time of the
construction of their home on the Reserve. However, this was in 2010 and outside of
the prescription period. The year 2010 was also when the MCK refused to provide Ms.
Miller with the petition that some members of the Community had signed.

[305] However, the evidence also shows that she is currently able to use her house on
the Reserve and divides her time between Ottawa, where Mr. Morgan works and
Kahnawazke.

[306] The couple states that they would like to move back to the Reserve, but other
than Mr. Morgan?s expression that he would like to work on the Reserve, there has not
been a formal plan or attempt by the family to move to Kahnawa:ke permanently.
Absent clear evidence of such a plan the Court will not award damages for the concern

 

 

505-17-007605-142 PAGE 45

that they have about residing on the Reserve, even if it agrees that their concerns about
moving the family to the Reserve in the current climate are warranted.

[307] Does the verbal attack that she endured at the 2015 Community meeting warrant
an award of moral damages? In the Court?s view, it does. In the context of such a
meeting under the auspices of the MCK, it had a duty to ensure civility and that
Ms. Miller was treated in an appropriate way. Two of the Chiefs with a more liberal view
on the membership issue were investigated by the MCK following this meeting (Exhibit
P-13).

[308] Finally, what about her affirmation that the MCK should promote a climate of
openness and govern to ensure the security of all the people. The Court agrees that this
is part of the duties of the MCK. However, given the principle expressed in Makin and
the support for the KML in the Community, the Court cannot find fault with the 
decision to promote the KML up until now.

[309] The Court will award Ms. Miller $1,000 as moral damages in respect of the
treatment that she received at the meeting in 2015.

5.6.8 Lanny Delisle and Nancy Montour

[310] There is no evidence that the MCK has committed a fault toward either
Mr. Delisle or Mrs. Montour.

5.6.9 Elizabeth Curotte

[311] Mrs. Curotte is in a similar situation to Brenda Fragnito. Her marriage to a non-
native should be without consequence under the KML. It has not been.

[312] Her non-inclusion on the KKR has meant that her requests for assistance to
renovate the family home into which she has moved were ultimately refused. The
Kanien?kehazka Funding Association had promised $102,500 on September 27, 2012,
only to withdraw the offer a few days later because the MCK would not provide water
and sewer services. Mrs. Curotte is forced to live in her dilapidated home due to this
discriminatory decision of the MCK.

[313] Faced with this situation, the MCK should have proactively reinstated
Mrs. Curotte or, at the very least, convened the Council of Elders to review her situation
as provided in the KML.

[314] She has not claimed compensatory damages although she might have. The
Court will award her $25,000 in moral damages.

 

 

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5.7 The Request to Reinstate or lnstate Plaintiffs on the KKR

[315] The Court will not grant this request as the KML provides a process for
instatement and reinstatement onto the KKR. Moreover, the KML contains many
stipulations relating to membership that have not been challenged and evidence has not
been made as to whether the Plaintiffs seeking instatement or reinstatement meet the
criteria to succeed in their application. Each application should be evaluated in
accordance with the KML through the process set up under the KML.

[316] The difficulty in this matter is the suspension by the MCK of the process for
instatement or reinstatement. The Court will therefore declare that the MCK must
convene the Council of Elders to decide upon the applications for instatement or
reinstatement of those Plaintiffs who apply following the present judgment, the whole
within a reasonable time of any such application.

5.8 The Other Demands

[317] Plaintiffs ask that the Court declare that non-native spouses are entitled to reside
within Kahnawa:ke with their spouses and children, and that the children retain native
status in the Band notwithstanding the fact that one of their parents is not a member.
This conclusion will not be granted.

[318] In respect of the right to reside, declaring the impugned provisions inoperative
will resolve this issue, at least for the moment. However, as the Court has already said
the MCK might wish to adopt provisions around residency and land use that are non-
discriminatory. While it is difficult to imagine how excluding non-native spouses might be
achieved in a non-discriminatory way, the MCK may wish to consider modifying the
KML and the Court should not interfere with its right to do so.

[319] The issue of children of mixed marriages retaining native status has been
discussed at great length. Given that section 11.4 of the KML was not contested, this
demand will not be granted.

6. SOME CLOSING 

[320] The MCK argues that the Plaintiffs application is theoretical, and that the ?Marry
Out, Get Out? Community custom will continue to exist whatever the decision of this
Court.

[321] The Court agrees that its decision may not be accepted by all in the Community,
but that is not a reason for the Court to refrain from doing its duty. There may come a
day when indigenous courts are set up with the jurisdiction to deal with the issues
currently before the Court. The KML foresees that possibility, but at the present it is this
Court that must resolve the dispute.

 

 

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[322] The MCK not having removed anyone by force does not make the dispute
theoretical. People?s lives have been affected.

[323] Finally, the Court notes that in many of its sections the KML recognizes the
importance of commitment to language and culture by people applying to be members.
Perhaps going forward the MCK should consider placing more importance on that
commitment than on the origins of one?s spouse.

FOR THESE REASONS, THE COURT:

[324] GRANTS Plaintiffs? Amended Introductory Motion in Damages and for Declaratory
Relief in part;

[325] DECLARES that sections 20.1 and 20.2 of the Kahnawa:ke Membership Law are
discriminatory and therefore inoperative under sections 7 and 15 of the Canadian
Charter of Rights and Freedoms;

[326] DECLARES the Mohawk Council of Kahnawa:ke has a duty under the
Kahnawa:ke Membership Law to convene the Council of Elders within a reasonable
time after the present judgment to review and decide on the applications of any Plaintiff
for instatement or reinstatement onto the Kahnawa:ke Kanien'keha:ka Registry;

[327] RESERVES the rights of each Plaintiff who applies for instatement or
reinstatement onto the Kahnawazke Kanien'keha:ka Registry in the event the MCK fails
to convene the Council of Elders within a reasonable time after the present judgment
and in the event of an unfavourable decision by the Council of Elders or the
Membership Review Council;

[328] ORDERS the Mohawk Council of Kahnawa:ke to pay damages to the following
people in the following amounts:

- Skawennati Fragnito: $1,000;
- John Barry Stacy: $1,000;
- Marie Stacy: $2,000;

- Marvin and Terri McComber, jointly $5,000;
- Waneek Miller $1,000;
- Elizabeth Curotte $25,000;

with interest at the legal rate provided by law plus the additional indemnity provided for
by Article 1619 of the Civil Code of Ou?bec from the date of service of the Introductory
Motion in Damages and for Declaratory Relief;

 

 

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[329] THE WHOLE, with judicial costs.

THOMAS M. DAVIS, J.S.C.

Me Julius Grey

Me Genvieve Grey
Grey Casgrain
Attorneys for Plaintiffs

Me Stephen Ashkenazy

COOPER ASHKENAZY

Me Eric Doucet

MOHAWK COUNCIL OF KAHNAWAKE LEGAL SERVICES
Attorneys for Defendant

Hearing dates: November 27, 28 and 29, 2017 and December 15?, 4, 7 and 8, 2017