A highly-anticipated decision from the Supreme Court of Canada has produced a solid win for the country’s 600,000 Métis and non-status Indians.
The Supreme Court of Canada ruled today in the Daniels’ case that Métis and non-status Indians are a federal responsibility and would no longer be in a “jurisdictional wasteland with significant and obvious disadvantaging consequences.”
In a 9-0 decision, the Supreme Court said Métis and non-status Indians are considered “Indians” under Sect. 91 (24) of the Constitution, which provides the federal government with exclusive authority over Indians and lands reserved for Indians.
“While finding Métis and non‑status Indians to be “Indians” under s. 91(24) does not create a duty to legislate, it has the undeniably salutary benefit of ending a jurisdictional tug‑of‑war,” stated the 38-page decision.
“My feet are still five feet off of the ground. It will take a while for it all to sink in,” said National Chief Dwight Dorey of the Congress of Aboriginal Peoples, speaking a few hours after the decision was rendered.
Dorey joined Harry Daniels, president of the Native Council of Canada (which later became CAP), in initiating the court case in 1999. “It’s quite a relief especially in light of the decision.”
“It’s a tremendous feeling really,” said President Clement Chartier of the Metis National Council. “We’ve now done away with a major obstacle to the Métis Nation in moving forward….in terms of the capacity of the federal government to do things specifically within their head of power in accommodating Metis Nation.”
The biggest win, however, says Jason Madden, legal counsel for the MNC, comes in a ruling the Supreme Court did not make. The Supreme Court did not uphold the other two points of the appeal–the federal government had a fiduciary responsibility to Métis and non-status Indians, and that they must negotiate and consult with Métis and non-status Indians – stating that both declarations “lack practical utility,” as “settled law” already upholds this relationship between both the federal and provincial governments with Indigenous peoples.
Madden says the MNC anticipated having to undertake another court case in order to establish the right to negotiate.
“This is huge….The Supreme Court of Canada has now said, ‘The only reason we’re not giving these to you is because you already have them,’” said Madden. “We are now set up perfectly. Negotiation tables need to happen.”
What role the MNC and CAP will play in those negotiations is yet unclear, although Chartier points out that MNC and its provincial affiliates are Métis governments, unlike CAP, which is an organization and not a government. Both MNC and CAP represent Metis, although CAP also represents non-status Indians.
The Supreme Court did not rule on a definition of Métis and, in fact, specifically stated that the Powley definition was too restrictive for the purposes of Sect. 91(24). The Powleydefinition sets three criteria: identify as a Métis person; be a member of a present-day Métis community; and, have ties to a historic Métis community.
While CAP had been pushing for a definition, Dorey did not take exception to the Supreme Court’s decision.
MNC and CAP differ in how they define Métis, with the MNC using the Powley definition, while CAP states Métis are people of “mixed Aboriginal ancestry.”
The Supreme Court also ruled that provincial legislation was still valid for Métis and non-status Indians.
“Federal jurisdiction over Métis and non‑status Indians does not mean that all provincial legislation pertaining to Métis and non‑status Indians is inherently ultra vires. As this Court has recognized, courts should favour, where possible, the operation of statutes enacted by both levels of government,” stated the ruling.
What this will mean, says Madden, is tripartite negotiations involving the federal government, the provinces and the government or organization representing the Métis or non-status Indians.
Madden says the Daniels’ ruling will force the federal government to reassess whether the programs, services, and initiatives offered to First Nations and Inuit peoples, and which exclude Métis and non-status Indians, can be sustained.
“The second longer-term issue, is clearly, there needs to be negotiations with the Métis …. There needs to be those tables established,” he said. At those tables the larger topics of self-government, land claims, and rights will be discussed, with the end result being treaties, modern-day land claim agreements or some other form of agreement.
“That’s going to take longer… but I think that’s the trajectory and inevitability that those tables are created.”
In delivering the Supreme Court’s decision, Justice Rosalie Abella wrote, “As the curtain opens wider and wider on the history of Canada’s relationship with its Indigenous peoples, inequities are increasingly revealed and remedies urgently sought. Many revelations have resulted in good faith policy and legislative responses, but the list of disadvantages remains robust. This case represents another chapter in the pursuit of reconciliation and redress in that relationship.”
In a statement issued by the government, Indigenous and Northern Affairs Minister Carolyn Bennett thanked the Supreme Court for “bringing much needed clarity to an issue that has lingered for too long….We are committed to working in partnership with Métis and non-status Indians on a nation-to-nation basis, along with other partners, to ensure we are following the court's direction in implementing this decision.”
Read more on this case:
Read more on the ruling:
Friends say goodbye to Harry Daniels http://www.ammsa.com/publications/alberta-sweetgrass/friends-say-goodbye-harry-daniels
Downlod full decision in PDF file format