History today was made as the Supreme Court of Canada declared all non-status and Métis Indians to be, without exception, “Indians” under the Constitution — and afforded all rights therein.
1. that Métis and non-status Indians are “Indians” as the term is used in s 91(24) of the Constitution Act, 1867,
2. that the Queen owes a fiduciary duty to them as such,
3. and that they have the right to be consulted by the federal government on a collective basis, respecting their rights, interests and needs as Aboriginal people.
At trial, the court dismissed the second and third declarations, but ruled that Métis and non-status aboriginals were indeed Indians under the Constitution.
The Federal Court of Appeal, however, narrowed that definition last year, excluding non-status Indians outright and ruling that only Métis who met certain criteria under the SCC’s 2003 decision in R. v. Powley could be deemed “Indian.”
Today, a unanimous panel of nine judges set aside the appeal court’s narrow definition and granted constitutional rights to all Métis and non-status Indians. And while the decision, written by Justice Rosalie Abella, similarly dismisses the second and third declarations, it does so only because fiduciary and consultative duties are presumptive under the first declaration.
“There is no need to delineate which mixed ancestry communities are Métis and which are non status Indians. They are all ‘Indians’ under s. 91(24) by virtue of the fact that they are all Aboriginal peoples,” the decision states.
“The historical, philosophical, and linguistic contexts establish that ‘Indians’ in s. 91(24) includes all Aboriginal peoples, including non status Indians and Métis. The first declaration should accordingly be granted.”
Jason Madden, who represented the Métis National Council, says he was pleasantly surprised by the emphatic language used by Justice Abella, and how far the court was willing to go to bring Métis and non-status Indians into the fold.
“We got the trifecta today, and we weren’t expecting it,” he says. “We were clearly expecting number one, which was inclusion, but they went even further to say, ‘On fiduciary relationships, we will reaffirm what we’ve already said, and on the duty to negotiate . . . we’ve already recognized it.”
Madden calls the decision “elegant” in the way it “walks around” the issue of whether non-status and Métis aboriginals should be forced to meet criteria before being deemed Indian enough to demand consultation and negotiation.
As the decision explains, s. 91(24) and s. 35 in the Constitution play different roles: the former sets out jurisdictional obligations owed to aboriginals; the second creates a framework for land claims and treaty negotiations.
So, while Métis and non-status aboriginals are all collectively “Indians” under s. 91(24) of the Constitution, individual native bands, along with Métis and non-status Indians, must be assessed on a case-by-case basis — employing the framework set out under s. 35 and the criteria under Powley — when pressing cases around land claims and treaties.
That may not sound like a substantial victory, but until now Métis and non-status Indians have been denied jurisdictional responsibility or even a seat at the table.
“Because of the lack of accountability and the lack of certainty, these people have fallen through the cracks,” says Madden. “And the court is saying, ‘No longer . . . You cannot sit on your hands when you know there are rights and claims there and there is a positive obligation to negotiate.’”
Perhaps more importantly, Madden says the decision opens the door to wider reconciliation with Métis and non-status Indians, who’ve historically been disenfranchised and disregarded by both government and aboriginal groups.
“I actually like the way Abella starts it. She says that the curtains are opening wider on the stage, because previously Métis have been shuffled off the stage, and what she is saying is that reconciliation is about all aboriginal people, and that they need to be included on the stage.”