Federal Court affirms rights of Metis and non-status Indians

MNC Press Release Posted on January 8, 2013

FOR IMMEDIATE RELEASE:

Federal Court decides that the Federal Government has Jurisdiction for Métis

Ottawa, Ontario, January 8, 2013 – This morning the Federal Court Trial Division released its long-awaited reasons for judgment in Daniels v. Canada.

Judge Phelan has issued a declaration that the federal government has jurisdiction for Métis under s. 91(24) of the Constitution Act, 1867.  That head of power states that the federal government has exclusive legislative authority with respect to “Indians, and Lands reserved for the Indians.”  This case effectively finds that Métis are “Indians” within the meaning of s. 91(24).

The case has been 12 years in the making.  Canada has resisted the claim vigorously, first by denying access to its records and then on the grounds that insufficient facts, the difficulty of the case and the definitional difficulties should preclude a remedy being granted by the court.  The court rejected Canada’s assertions on all of these grounds and emphasized that difficulty cannot be used to deny a remedy.  The judge also held that the Métis have a right to know which government has jurisdiction over them.

The issue of jurisdiction for Métis is an important one.  For decades Canada has only assumed jurisdiction for Métis north of the 60th parallel.  This exclusion has increasingly created a divide between Indians and Métis as economic restrictions have come into place.  As the court noted Canada’s own documents admit that Métis are more exposed to discrimination and other social disabilities and that “in the absence of Federal initiative in this field they are the most disadvantaged of all Canadian citizens.”

Métis National Council President, Clément Chartier, stated that, “this decision is a step forward for the Métis.  We have long understood that the jurisdiction question must be settled by the courts and it has been our understanding that jurisdiction rests with Canada. We now look forward to discussions with the federal government about how we can better work together to implement this decision.”

Vice-President and Manitoba Métis Federation President, David Chartrand, called the decision “a historic milestone and this opens the door for us now to work with the federal government to redirect our Métis tax dollars to meet the economic needs of our people ”. He further stated “this decision will be front and centre at our upcoming meeting with the Prime Minister and Minister of Aboriginal Affairs and Northern Development”.

The case also determined that non-status Indians are “Indians” within the meaning of s. 91(24).

I know Metis doesn't mean quite the same thing in the prairies as it does down east. And I know that down in the states the rule when it comes to certain things is quarter blood (which makes a bit more sense than our former sexist laws, but not all that much more sense).

But there is a big problem when a nation does not have the legal power to decide who is and who is not a member. That affects all Native people in Canada.

I remember back in the 90s having a conversation with a fellow who was Sinix - a nation from the BC Interior who were declared extinct. In reality many of them had moved stateside for a number of reasons, including the epidemic which had decimated their people.

 

[4]                              The trial judge, Phelan J., made a number of key factual findings in his thoughtful and thorough reasons.[1] As early as 1818, the government used “Indian” as a general term to refer to communities of mixed Aboriginal and European background. The federal government considered Métis to be “Indians” in various treaties and pre-Confederation statutes, and considered Métis to be “Indians” under s. 91(24) in various statutes and policy initiatives spanning from Confederation to modern day. Moreover, the purpose of s. 91(24) was closely related to the expansionist goals of Confederation. The historical and legislative evidence shows that expanding the country across the West was one of the primary goals of Confederation. Building a national railway was a key component of this plan.

[5]                              Accordingly, the purposes of s. 91(24) were “to control Native people and communities where necessary to facilitate development of the Dominion; to honour the obligations to Natives that the Dominion inherited from Britain . . . [and] eventually to civilize and assimilate Native people” (para. 353). Since much of the North-Western territory was occupied by Métis, only a definition of “Indians” in s. 91(24) that included “a broad range of people sharing a Native hereditary base” (para. 566) would give Parliament the necessary authority to pursue its agenda.

[6]                              His conclusion was that in its historical, philosophical, and linguistic contexts, “Indians” under s. 91(24) is a broad term referring to all Indigenous peoples in Canada, including non-status Indians and Métis.

[7]                              He found that since neither the federal nor provincial governments acknowledged that they had jurisdiction over Métis and non-status Indians, the declaration would alleviate the constitutional uncertainty and the resulting denial of material benefits. There was therefore practical utility to the first declaration being granted, namely, that Métis and non-status Indians are included in what is meant by “Indians” in s. 91(24). He did not restrict the definition of either group.

[8]                              He declined, however, to grant the second and third declarations on the grounds that they were vague and redundant. It was already well established in Canadian law that the federal government was in a fiduciary relationship with Canada’s Aboriginal peoples and that the federal government had a duty to consult and negotiate with them when their rights were engaged. Restating this in declarations would be of no practical utility.