Today the Supreme Court of Canada in the Daniels decision ruled that for the purposes of s. 91(24) of the Constitution Act of 1867, the Metis and non-status Indians fall within the head of power entitled “Indians and Lands Reserved for Indians.” They are now a federal responsibility but there is no obligation for the Federal Government to pass legislation.
Let’s get this straight, this does not mean Metis people and non-status Indians are Indians. They don’t meet the definition of Indian within the definition of the Indian Act. Nor are they a “band”. The Indian Act does not apply to Metis and non-status people.
Nor does the Daniels decision mean the Metis have the same rights as Indian people as have been established through court cases, final agreements or other means. The Metis and non-status were not “given” any rights, only determined who had responsibility over them.
Identification as Indian and Metis is critical to people. If you were to ask an Indian person if they thought Metis were Indian, they would say no. If you asked a Metis person if they thought they were Indian they would say no. The court goes through a lot of colonial history that I won’t go into to conclude, that the term Indian was meant to be all encompassing of Indians and anyone of Indian descent. They want to use Indian as a melting pot term for all aboriginal peoples for the purposes of s. 91(24) of the Constitution Act 1867. The court at the same time recognized that Metis are a distinct people-this seems very inconsistent in its reasoning.
The Federal government had already acknowledged they had jurisdiction over non-status Indians but the court ruled this anyway so there would be no confusion in the future. Very strangely the Federal said they had jurisdiction over non-status people because they assumed jurisdiction over them when they amended the membership sections of the Indian Act in 1985 and 2008. This makes no sense because only certain non status were allowed to apply to be Indians and those that did became Indians and were no longer non status and then the federal government would have jurisdiction anyway.
The court said that s. 91(24) is about the relationship between the federal government and the Indian People of Canada. They further said that Indian as used in 1867 should now be read as s. 35 does, that is should be aboriginal people. Interesting to note that in 1867 the term 'aboriginal' was not used in any form.
The court asked the question as to whether the test in the case of Powley as to who is Metis should be used for who falls into the definition of “Indian” for the purposes of s. 91(24). Powley had 3 criteria as to who is Metis-self identification as Metis, ancestral connection to an historic Metis community and acceptance by the modern Metis community. The court had concerns with the 3rd criteria. The criteria in Powley was developed for the purposes of deciding who could exercise a community held right of hunting and that is why community acceptance was required. S. 91(24) has another constitutional purpose as it is about the relationship between Canada and aboriginal people. The community acceptance part of the definition is not needed to determine who falls within s. 91(24) but only as it applies to determining community held rights.
The court was very careful to say that provincial laws can continue to apply to Metis unless it goes to the core of their “Metism”. (The court actually says not impair the core of Indianness but I think it is appropriate to say Metism.) I am sure they did this so there would be no havoc in the provinces withdrawing their Metis Settlement Acts and taking away the land base that some Metis live on now.
This case does set out jurisdiction for the Metis people to be federal responsibility. Not that the federal government has done a good job of carrying out their responsibilities to First Nations as we are the poorest of the poor, have inadequate housing, education, and health. Suicides are rampant with youth in some communities. Maybe it is not such a great victory when you see how First Nations have fared under federal responsibility. But at least the Metis are no longer in a "jurisdictional wasteland" as described the Supreme Court of Canada.
What will be interesting is to see how the federal government will set aside money for Metis people, will they just take money away from First Nations? Or will they set up an entirely new budget? how will money be allocated when most Metis don’t have a land base except on settlements established under provincial law. Will they provide housing in urban settings? Schools in urban settings? A different health regime? All those questions will need to be answered.
Finally the court said they would not make the declaration that the Federal Government had a fiduciary obligation to Metis or that the federal government had to consult and negotiate in good faith as courts have already ruled on that. Those cases dealt with First Nations and although the court said “aboriginal”, I think many of those cases are specific to First Nations people. I see more litigation in the future.
Interesting day in the court for the Metis and it will impact on funding to First Nations who already are suffering under inadequate funding. Reading this case has made me realize even more how things can be so weirdly interpreted and convoluted to serve a purpose. I know it was an important case for the Metis and the effects of it will continue for many years.
Note to Readers: I normally don’t use the term “Indian” as it is “Indian Act” jargon, a colonial name given to us. My preference is First Nation but for the purposes of this case, I used Indian as that is what s. 91(24) says.