Lawyers for Canada’s Métis and non-status Indians — a group the Supreme Court of Canada described as having long been in jurisdictional limbo — are buoyed by a series of recent developments, including the high court’s ruling in Daniels v. Canada (Indian Affairs and Northern Development).
But there is concern that Canada’s indigenous population still has a way to go to reach the end game of self-government.
The issue of whether Métis and other non-status Indians fell under the legislative authority of the federal government was raised in Daniels.
They sought to enforce their rights and interests as aboriginal people. The court ultimately found that they are "Indians" with s. 91(24) of the Constitution Act, 1867 and, therefore, fall under federal legislative jurisdiction.
On its own, Daniels provides clarity on the jurisdiction issue, but when added to two previous Supreme Court of Canada decisions, they result in a positive obligation for the federal government to address outstanding claims and outstanding rights, says Jason Madden, partner at Pape Salter Teillet LLP who practises aboriginal law with a focus on Métis-related issues and was counsel for the intervener Métis National Council in Daniels.
“The last almost-decade-plus, the Métis have taken three key cases to the SCC on pretty fundamental issues; I call them the Métis Trifecta,” says Madden.
R. v. Powley 2003 from Sault Ste. Marie resolved the issue of who the Métis are and confirmed their rights.
Prior to that, the test for First Nations was contact, and since the Métis emerged after European contact with North America, the Métis had been excluded from that group and the rights extended to them.
Powley modified the test to be effective control instead of contact, validating their rights and protections.
Then came Manitoba Métis Federation Inc. v. Canada (Attorney General) in 2013 in which the court found there had been a breach by the Crown — in the promise of land in the Red River settlement.
“You put those three pieces together and inevitably you have all the key legal questions that needed to be answered. So more recently you’ve been seeing progress with some Métis groups with finally getting to those negotiation tables,” says Madden, who represents the Manitoba Métis Federation and is himself a Métis.
“You just have a bunch of things coming together,” he says, also pointing to the positive initiatives indicated by Prime Minister Justin Trudeau on issues related to indigenous people, a recent ministerial special representative report and Daniels, along with the two previous cases “that I think finally get people to realize the time has finally come that we need to deal with the Métis.”
In Daniels, the plaintiffs successfully sought a declaration that non-status Indians and Métis are Indians under the constitution to guarantee certainty and accountability because provincial and federal governments have denied having legislative authority over them, leaving these indigenous communities in a jurisdictional wasteland.
“Both federal and provincial governments have, alternately, denied having legislative authority over non-status Indians and Métis. As the trial judge found, when Métis and non-status Indians have asked the federal government to assume legislative authority over them, it tended to respond that it was precluded from doing so by s. 91(24). And when Métis and non-status Indians turned to provincial governments, they were often refused on the basis that the issue was a federal one,” wrote Supreme Court of Canada Justice Rosalie Abella.
“This results in these Indigenous communities being in a jurisdictional wasteland with significant and obvious disadvantaging consequences. . . . ”
University of Ottawa law professor Sébastien Grammond, who specializes in aboriginal issues, says now that the jurisdictional football has finally landed in the hands of the federal government, other issues need to be resolved.
And while the constitution divides powers between Canada and the provinces, it also divides their responsibilities.
So the expectation is that Daniels will pave the way for these groups to finally be afforded the programs and services previously only extended to status Indians.
“It could mean the federal government is responsible for spending money to set up programs aimed at indigenous peoples other than status Indians. And that would be the major impact of Daniels. Although this is not spelled out in the decision itself, because the decision speaks only about jurisdiction,” says Grammond.
Discussions between the Métis and the federal government must now follow.
But, he adds, there are many other groups claiming indigenous status and it remains to be seen how they will be recognized by the federal government and what will be extended to them.
The issue not yet addressed is whether all indigenous groups are entitled to the same rights and/or programs.
If not, how does the federal government differentiate between various indigenous groups.
Grammond points out that the historical political demographic situation of various indigenous groups is quite different from status Indians who live on reserves.
He points to the Algonquin of Ontario, who in October attained an agreement in principle with the government — which includes land in Eastern Ontario — that is expected to result in Ontario’s first modern treaty.
“There are many other groups who claim to be indigenous. Sometimes, it’s a recent claim,” says Grammond, adding that it’s not always easy to figure out which groups should be recognized “so the government will have to make decisions about that. And this might lead to further rounds of litigation, but it may take time.”
Bruce McIvor, principal of First Peoples Law based in Vancouver, B.C., recognizes that Daniels resolves the important question of federal versus provincial jurisdiction and that it may lead to serious negotiation that could have long-term effects toward the provision of services, which has been underfunded and is an issue that has “been bounced back and forth like a hot potato” between governments.
He also points out that Daniels is about legislative authority not rights, which was established in Powley.
But, he adds, a lot has happened since Métis leader Harry Daniels, who is since deceased, launched the case in 1999.
“I think it’s an example of a case that started a long time ago and the law has evolved a lot since the case began. While it’s an important decision to a large degree, it is out of step with what indigenous people across Canada and around the world are seeking to achieve. They’re seeking to achieve recognition of their own, inherent jurisdiction. They’re not in court looking to confirm the Crown jurisdiction over them,” says McIvor who traces his Métis roots to Manitoba’s Red River Settlement.
He sees s. 91(24) of the Constitution not as a shield to protect the indigenous population but as an historical tool of colonization with which the indigenous population is controlled and oppressed.
The Daniels decision, then, now applies this tool of colonization to the Métis and non-status Indians, he adds.
What he now seeks is the ability to achieve self-government for the Métis and exercise their own decsision-making authority, recognizing their own laws.
“Parallel to the Canadian Constitution, there exists still and now it’s protected by section 35 of the constitution that inherent indigenous lawmaking authority separate from the constitution, and that’s where most indigenous people across the country are focused, in having their own inherent jurisdiction and lawmaking authority recognized,” says McIvor, referring to self-government rights including laws for membership, revenue sources, territories and child welfare.
“As a Métis person, I’m not really interested in the federal government’s jurisdiction to pass laws, specifically in relation to me and my children.”
— Law Times has updated this story to reflect that the SCC found that Métis and other non-status Indians fell under the Constitution Act, 1867, and, therefore, fall under federal legislation.