Appeals Court tidies up ruling on Métis, non-status Indians

Both the Métis National Council and the Congress of Aboriginal Peoples (CAP) are lauding the Federal Court of Appeal’s decision upholding a lower court ruling that the federal government has jurisdiction over Métis and non-status Indians.

However, in making its unanimous ruling that both groups were covered under section 91(24) of the Constitution Act, the Court of Appeal said that non-status Indians were not a distinct group of peoples and that their rights were already included with their existing bands.

Justice Eleanor R. Dawson delivered the decision in her 57-page judgement.

The Manitoba Métis Federation (MMF), who had intervener status in the appeal, had asked that non-status Indians be separated from the declaration that was delivered by the Federal Court in the Daniels’ case, which stated, “those persons who are Métis and those who are non-status Indians … are ‘Indians’ within the meaning of the expression ‘Indians and Lands reserved for Indians’ contained in s 91(24) of the Constitution Act, 1867.”

“The court agreed with our submission,” said Jason Madden, legal counsel for MMF. “Everyone has always acknowledged that Indians are within 91(24) but what they don’t say is that they’re a distinct group that needs to be negotiated with through their own representatives… what they say is that those issues are dealt with through their respective Indian-based collective.”

Following the lower court decision in January 2013, CAP National Chief Betty Ann Lavallée said that non-status Indians had a place at the negotiating table. But the Court of Appeal has not upheld that.

In a news release issued following the April 17 decision, Lavallee said she was “very pleased … the federal government conceded at the appeal hearing that non-status Indians fall under federal jurisdiction.”

CAP was created in 1971 and has, as part of its mandate, advocacy for non-status Indians and Métis. CAP and the late Harry Daniels launched the case in 1999, challenging the federal government for denying it had a fiduciary duty to non-status Indians and Métis.

The Federal Court of Appeal also addressed a concern that the lower court decision caused.

“The court (of appeal) actually does what the Métis asked them to do, which was to clean up the potential confusion around the definition in Daniels of who the Métis are,” said Madden.

Dawson pulled from the more recent decisions of the Supreme Court of Canada in Powley, Cunningham and Manitoba Métis Federation for her definition of Métis, replacing the view espoused by lower court Judge Michael Phelan, who referenced a 1980 government definition which defined Métis and non-status Indians as “a group of native people who maintained a strong affinity for their Indian heritage without possessing Indian status.”

That definition contradicted the citizenship definition Métis governments across the country have adopted stating that MÈtis are a distinct people who can trace their heritage back to a historic Métis community.

Dawson reaffirmed the Supreme Court of Canada’s ruling that the federal government had a fiduciary relationship with all Aboriginal people, including the Métis.

From that, says Madden, a fiduciary duty flows, which is based on specific facts and specific situations.

“The federal government approach to things has been to historically exclude Métis… but now we have a clear answer,” he said. “I think everything will be on the table now, evaluating why (the federal government has) excluded Métis from initiatives.”

Dawson made it clear that provincial agreements and legislation with the Métis were not compromised because primary federal jurisdiction over the Métis had been recognized.

Madden expects the federal government will appeal the Daniels decision to the Supreme Court of Canada.

At deadline, neither the Department of Justice nor Aboriginal Affairs had issued statements on the decision.