“It’s very significant because the clarification of responsibility answers an unresolved question,” says Andrew Lokan, a partner at Paliare Roland Rosenberg Rothstein LLP who acted for the respondents in Canada (Indian Affairs and Northern Development) v. Daniels before the appeal court.
In the ruling issued Thursday, Justice Eleanor Dawson, writing on behalf of a three-judge panel, restated the Federal Court’s earlier declaration as follows: “The court declares that the Métis are included as ‘Indians’ within the meaning of section 91(24) of the Constitution Act, 1867.”
In doing so, the appeal court deleted the inclusion of non-status Indians in the declaration made in Federal Court Justice Michael Phelan’s ruling. But as Lokan points out, the appeal court merely said the Federal Court findings with respect to non-status Indians lacked practical utility as the government had already conceded jurisdiction over them.
“Unlike the Métis, who are a distinct Aboriginal people, it is common ground that non-status Indians are, broadly speaking, Indians without status under the Indian Act,” wrote Dawson.
“During oral argument, counsel for the appellants conceded that the group of people characterized as non-status Indians are those to whom status could be granted by federal legislation, assuming the legislation did not exceed the limits of section 91(24). The definition as conceded by the appellants in oral argument necessarily includes non-status Indians within that head of power.”
“That’s very significant and positive ruling,” says Lokan. “It certainly upholds the logic of the decision below.”
Central to both the Federal Court and appeal rulings were findings that the federal government has at times throughout history included the Métis as part of its jurisdiction under s. 91(24). Prior to Confederation, for example, the fathers of Confederation understood the term Indian to include “half-breeds” and that someone didn’t have to live on a reserve to be an Indian, wrote Dawson in summarizing Phelan’s findings.
But while the appeal court largely ruled against the federal government, it rejected a cross-appeal seeking declarations the Crown owes a fiduciary duty to both Métis and non-status Indians and that the federal government must consult with them through their representatives on their rights, interests, and needs.
But for Lokan, he hopes the ruling will mean that “underserviced people” — those who, according to the rulings the government has acknowledged “are the most disadvantaged of all Canadian citizens” — “will have their needs as aboriginals addressed.”
“Rationally, it should lead to the government engaging with representatives of the Métis and non-status Indians,” he adds, noting it’s not yet clear exactly which programs and services the declaration would now require the government to provide.
“It’s one step at a time,” he says. “You don’t bring a case about everything.”