MIKI'SIW Métis Association

Legislation

Unanimous ruling says Ottawa has jurisdiction over all indigenous people

The Supreme Court of Canada has ruled that tens of thousands of Métis and non-status Indians are the responsibility of the federal government, ending a 17-year court battle.

"This is a great day for over 600,000 Métis and non-status Indians," said Dwight Dorey, national chief of the Congress of Aboriginal Peoples, after the decision was released Thursday.

"Now hopefully we will not have to wait any longer to sit at the table."

In a unanimous ruling that may serve now as a starting point for those pursuing land claims and additional government services, the court held that non-status Indians and Métis are considered "Indians" under section 91(24) of the 1867 Constitutional Act.

"This is a landmark ruling that will have broad consequences and impacts," said Prime Minister Justin Trudeau, adding that the government will need to study what those impacts might be.

Harry Daniels

In 1999, prominent Métis leader Harry Daniels started the landmark Métis and non-status Indian rights case. Daniels died in 2004. (Métis Council of Prince Edward Island)

"But I can guarantee you one thing, the path forward will be together as we move forward." 

The ruling extends the federal government's responsibilities to approximately 200,000 Métis and 400,000 non-status aboriginal people who are not affiliated with specific reserves.

Without this clarity, indigenous communities were in a "jurisdictional wasteland with significant and obvious disadvantaging consequences," the ruling said. The result of this "political football" was that financially, Métis and non-status Indians were deprived of significant funding for programs, services and other benefits.

"I'm very happy that we were successful in removing a blockage," said Joseph E. Magnet, lead lawyer for the Congress of Aboriginal Peoples.

"The court recognized that this blockage has caused significant disadvantage, discrimination, and resulted in denial of programs and services that all governments recognized were necessary."

"This is a dream come true," said Gail Gallupe, president of McMurray Métis Local 1935. The group represents Métis people in Fort McMurray and northeastern Alberta.

'1,2,3 punch'

Jason Madden is a Métis lawyer with Pape Salter Telleit, a firm specializing in Métis and First Nations law. He calls Thursday's decision a "1,2,3 punch" that affirms the government has jurisdiction over, a fiduciary responsibility to and the duty to negotiate.with Métis and non-status peoples.

"It's about certainty and accountability," he said. "Without the certainty, government gets to play games and duck and deny.

"We believe that now we can move forward; now there is no jurisdictional barrier," said Clément Chartier, president of the Métis National Council.

`[Government] cannot say, 'Well we can't deal with you because Section 91 (24) doesn't include you.' This of course strengthens our position."

Definition of 'Indian'

The word Indian has two meanings, the ruling explains:

  • A broad interpretation that includes all aboriginal people.
  • A narrow meaning to distinguish First Nations from other groups.

For the purpose of defining federal jurisdiction, the broad meaning applies.

However, the ruling also does not distinguish which communities are Métis and which are non-status Indians. Determining whether particular individuals are non-status Indians or Métis — or exactly who this ruling now applies to — is a "fact-driven question to be decided on a case-by-case basis in the future." 

"There is no consensus on who is considered Métis or a non-status Indian, nor need there be. Cultural and ethnic labels do not lend themselves to neat boundaries," the ruling said.

"Which is good," Madden`said. "Those issues are best left for the communities themselves to answer."

'Overwhelmed and ecstatic'

The landmark case was launched in 1999 by prominent Métis leader Harry Daniels — then president of the Congress of Aboriginal Peoples — along with Leah Gardner, a non-status Anishinaabe woman, and Terry Joudrey, a non-status Mi'kmaq man. Daniels died in 2004.

"I'm overwhelmed and ecstatic, and I wish my father were here to see this," said Gabriel Daniels outside the court.

"He'd probably do a jig right now."

The case, known as Daniels vs. Canada, went to trial in 2011 and final arguments were heard in 2015. 

Canada's top court was asked to rule on whether the federal government has the same responsibility to Métis and non-status Indians as to status Indians and Inuit. 

Justice Rosalie Abella, writing for the court, said the provincial and federal governments have both denied having legal authority over non-status Indians and Métis, leaving them in a "jurisdictional wasteland."

Leaders were screaming

Duane Morrisseau-Beck was one of about 100 people in the foyer of the Supreme Court when the decision was released.

"You should have seen the energy in this room go from zero to a hundred," said the Métis man who lives in Ottawa, although most of his family are still in Manitoba. "The Métis leadership came walking down the hall, screaming, you could hear it."

Morrisseau-Beck said his mother was overcome with emotion after learning of the decision.

"I guess it's just relief and happiness," he said. "She wants to know who the judges are so she can thank them."

Morrisseau-Beck said he still doesn't know exactly what the decision means, but hopes it leads to land claims for Métis communities and increased services. 

He also calls it a validation of Métis rights and history.

With files from Janyce McGregor


Kenneth Jackson

APTN National News
OTTAWA – Thursday’s highly anticipated decision by the Supreme Court of Canada on Metis and non-status Indian rights could see the work of Harry Daniels come full circle, even in death.

Best known for getting the Metis recognized in the constitution in 1982 Daniels knew it was just the first step in securing rights for his people.

In 1999, along with Dwight Dorey of the Congress of Aboriginal Peoples, Daniels filed a court action to force the federal government to recognize its fiduciary duty to Metis and non-status Indians.

The court action was to finish what Daniels started in 1982.

He passed away in 2004, but the fight continued.

The case made its way through the courts before, ultimately, ending up before the Supreme Court last year.

“What he did in ’82 in getting Metis in the constitution, that was a huge deal, but as they learned it was incomplete,” said Daniels’ son Gabriel. “This is coming full circle, so if the decision goes through the way we hope than his work, his contribution would be complete.”

The case is based on three points:

1. The 200,000 Metis and 400,000 non-status Indians are “Indians” under the section 91 (24) of Constitution Act of 1867.

2. The federal government has a fiduciary duty.

3. And is obligated to negotiate and consult with Metis and non-status Indians.

Basically, they would have the same rights as status Indians under the Indian Act and access to benefits, such as possibly land, education and hunting rights.

Daniels’ case first went to trial in 2011 when the Federal Court ruled Metis and non-status Indians were “the most disadvantaged of all Canadian citizens” because without the protection of the federal government they were exposed to “discrimination and other social disabilities.”

But, while ruling they were the federal government’s responsibility, the court didn’t force the government’s hand on fiduciary duty or to negotiate and consult.

The federal government appealed the ruling and scored a minor victory – the federal Court of Appeal upheld the ruling in favour of the Metis, however against non-status Indians.

And there was still nothing forcing the government to act.

The Congress of Aboriginal Peoples, that represents non-status Indians, appealed to the Supreme Court.

National Chief Dwight Dorey said he’s getting differing opinions on how the Supreme Court may rule.

Lawyers have warned him they’ll likely win the first argument – that Metis and non-status Indians fall under the Constitution Act, but lawyers are not as certain on the other two points.

Dorey has “a hope and a prayer” they also win the right of fiduciary duty, but isn’t as confident that the government will be forced to negotiate and consult.

“I’m a little more optimistic. I believe we’ll get two of three,” said Dorey.

The “icing on the cake” would be if they got all three.

But what an overall victory would mean is anyone’s guess – while the Supreme Court may lay the framework, it will likely be up to the federal government and Indigenous organizations to hammer out the details said Sebastien Malette, a professor of Aboriginal Law at Carleton University in Ottawa, who helped the Metis Federation of Canada, one of a dozen intervenors in the Supreme Court case.

“We won’t know how the federal government will apply that new jurisdictional power over the Metis,” said Malette. “Is (the ruling) giving consent for Parliament to legislate upon our existence?”

He said Metis want to be brought under s. 91 (24) of the Constitutional Act but don’t want be dragged under the Indian Act.

“Yet, I’ll be frank with you, there is the danger,” said Malette.

One saving grace may be the fact that the Liberal government announced Tuesday evening it plans to do away with the Indian Act.

Justice Minster Jody Wilson-Raybould said the government aims to “complete the unfinished business of Confederation” and replace the Indian Act with a “reconciliation framework” that would outlast the life of this administration.

“It is not easy to remove the shackles of 140 years of life under the Indian Act. Our government, and I hope all members of this honourable house, is committed to ensuring, in partnership with Indigenous peoples, to do just that,” said Wilson-Raybould during a debate on the Attawapiskat suicide crisis. “For Attawapiskat and for all First Nations, the Indian Act is not a suitable system of government, it is not consistent with the rights enshrined in our constitution.”

During the arguments at the Supreme Court, Malette said various organizations made pitches on how Metis and non-status communities self-define their identify and relationship with the federal government.

He said Daniels wanted a broad approach, while others argued at the Supreme court it should be more narrow.

Gabriel Daniels remembers as a child his father would take him to political meetings.

“I remember him saying ‘we’re arguing with each other over our rights and issues. We’re fighting amongst each other … we have to move forward. We have to think bigger,'” recalled Gabriel.

He said fighting for Metis rights was his father’s life.

“That’s what he lived for,” said Gabriel. “He loved his kids, family and friends but politics was his thing.”

When Harry Daniels died, Gabriel was asked to take his place on the court action.

“I believe in this cause. I believe in what my dad fought for,” said Gabriel on the phone as his young child could be heard playing in the background.

But he knows that even if they score a victory at the Supreme Court the fight is far from over.

As it could take years to iron out the details with the federal government.


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