Interveners concerned definitions could restrain identity

Interveners in the Daniels case believe that the Supreme Court of Canada does not need to define Métis or non-Status Indian. And if the court does decide a definition is necessary for Métis, it should not use the Powley definition to determine jurisdictional responsibility.

The issue of definition of Métis was raised when the Federal Court accepted the Congress of Aboriginal Peoples’ definition of a “mixed Aboriginal ancestry.” At the Federal Court of Appeal, the Metis National Council argued against that definition of Métis and the Court of Appeal narrowed the definition to the historic Métis community. How to define Métis has long been a point of contention between CAP and MNC.

In his submission to the Supreme Court on Oct. 8, Métis National Council counsel Jason Madden argued that in 1939 the court included Eskimos as part of section 91(24) without providing a definition. He said the same practise should apply with the Métis.

“What we say in this case is that you don’t need to answer that question because it’s not before this court in order to resolve the Metis declaration,” said Madden.

If the court is to answer that question, Métis Settlements General Council says the Supreme Court cannot use the Powley definition as was used by the lower court.

Settlements’ counsel Garry Appelt said Powley defined Metis in reference to Section 35 of the Constitution Act in order to establish site specific rights in regards to harvesting.

“Section 91(24) is not limited by geography. It’s a head of power much broader in scope than that. So in our submission the page is still relatively blank, or should be, for definition of Métis for jurisdictional purposes,” said Appelt.

He noted the concern of eight Métis settlements in northern Alberta that a strict Powley application would mean the settlements would fall under provincial jurisdiction as many Métis, who now call the settlements home, are not historically from that settlement region.

“So we are asking the court to pull back from the lower court statement that provides reference to Powley and provide guidance that is more suitable to the present day legal and political landscape,” said Appelt.

The Assembly of First Nations also took issue with the court offering a definition of Indian.

“The renewed commitment to reconciliation means that the term “Indian” can no longer be defined unilaterally by the federal Crown…. It is for the First Nations to decide,” said AFN counsel Guy Regimbald. He said non-Status Indians are part of the term “Indian.”

“When ethnicity is being formulated the idea of self-determination is to allow a community to define itself,” said Christopher Devlin, counsel for the Métis Federation of Canada.

Mark Kindrachuk, counsel for the federal government, also maintains that the Supreme Court did not need to offer a definition of Indian for the purpose of section 91(24).

The Supreme Court reserved its decision.