Who are ‘Indians’ within Parliament’s legislative authority and why does it matter?

Who are ‘Indians’ within Parliament’s legislative authority and why does it matter?
On Oct. 8, the Supreme Court of Canada will hear arguments from Canada, Alberta, Saskatchewan, the Métis Nation, First Nations, and other groups in Daniels v. Canada. The Daniels case ? initiated by well-known Métis leader Harry Daniels in 1999 ? will hopefully lead to Canada revisiting its arbitrary and exclusionary policies towards Métis and non-status Indians (i.e., members of First Nations who are not able to register as “status Indians” under the Indian Act).

As acknowledged in Canada’s internal documents that were disclosed in the litigation, these federal policies (or lack thereof) have produced the “most disadvantaged of all Canadian citizens.”

The case will answer the longstanding question of whether the Métis and non-status Indians are included within the meaning of s. 91(24) of the Constitution Act, 1867. This head of power grants “exclusive Legislative Authority” for “Indians, and Lands reserved for the Indians” to the federal Parliament.

In recent times, Canada has taken an extremely narrow interpretation in relation to this jurisdiction, which conveniently excludes the Métis and non-status Indians. This has resulted in these groups being treated as proverbial “political footballs” and falling between the jurisdictional cracks of this country.

In the words of the trial judge, this gamesmanship has created a “large population of collaterally damaged” Aboriginal people.

Based on the voluminous evidentiary record, both the Federal Court and Federal Court of Appeal concluded that s. 91(24) was necessarily broad enough to include all of the aboriginal peoples (i.e., First Nations, Métis, and Inuit) Canada encountered as it expanded from coast to coast to coast post-confederation.

In other words, s. 91(24) was not limited to “Indians” as defined by Canada through the Indian Act. Nor did it exclude the Métis ? who emerged as a distinct Aboriginal Peoples in the western territories ? prior to Canada becoming the Canada we know today.

On appeal to the Supreme Court of Canada, the federal government continues to argue for an arbitrarily narrow interpretation of this unique head of power, which would exclude these groups from treaty-making and thwart meaningful reconciliation with them.

In particular, for the Métis, this case is a part of their “hunt for justice.” After it became apparent that governments were not going to negotiate with them in order to give meaning to their inclusion in s. 35 of the Constitution Act, 1982, the Métis have repeatedly turned to the courts to uphold this country’s honour and fulfil the constitutional promise made to them more than 30 years ago.

From R. v. Powley in 2003 (which recognized that Métis communities have pre-existing aboriginal rights protected by s. 35) to Cunningham v. Alberta in 2011 (wherein Chief Justice Beverley McLachlin urged that “the time has finally come for recognition of the Métis as a unique and distinct people”) to Manitoba Métis Federation v. Canada in 2013 (which recognized the outstanding constitutional grievance of the Manitoba Métis flowing from land grant provisions set out in s. 31 of the Manitoba Act, 1870), the Supreme Court of Canada has been consistent and unequivocal: s. 35 demands good faith and meaningful negotiations and reconciliation with the Métis people as well.

Unfortunately, Canada has not been listening.

The Métis continue to be excluded from federal comprehensive and specific claims processes available to First Nations and the Inuit. They are denied access to desperately needed programs available to other aboriginal groups. They are often excluded from Crown consultation on their rights because governments simply “put their heads in the sand” when it comes to Métis issues.

While a positive outcome in the Daniels case won’t change this reality overnight, it will remove one of the last vestiges Canada hides behind to justify its complete lack of leadership and inaction when it comes to dealing with the Métis.

Notably, independent experts, including some hand-picked by the current federal government, have come to similar conclusions.

In his April 2015 report prepared for Canada on the federal comprehensive claims process, Vancouver-based lawyer Douglas Eyford wrote, “Canada must do more in its relationship with the Métis.” He went on to recommend that Canada “develop a reconciliation process to support the exercise of Métis s. 35 rights and to reconcile their interests.”

In the same vein, the United Nations Special Rapporteur on the Rights of Indigenous Peoples has criticized Canada for not having “a coherent process or policy in place to address the land and compensation claims of the Métis people.”

With these developments, it should be clear to everyone what needs to happen. Real negotiations on issues such as Métis rights, lands, and self-government must be engaged.

Just and lasting settlements with the Métis, whether they are called treaties, modern-day land claims, or some other type of agreement, must be reached and given legal force and effect with s. 91(24)’s certainty.

Hopefully, the next federal government will finally see the writing on the wall and move forward on these issues. If not, the Métis are hopeful the Daniels case will provide additional judicial direction that federal inaction on Métis rights and claims is no longer an option.

Jason Madden is a Métis lawyer and partner at Pape Salter Teillet LLP. He has been involved in much of the litigation on Métis rights over the last decade and was recognized as one of Canada’s 25 Most Influential Lawyers in 2014 for his work in this area by Canadian Lawyer. He is legal counsel for the intervener Métis National Council in the Daniels case.

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