Law Times

Page 10 April 29, 2013 Law Times • FOCUS Métis rights on standby as government appeals Daniels BY SIOBHAN McCLELLAND For Law Times M étis and non-status Indians can look to the federal government for the same entitlements as other aboriginal groups as long as a recent Federal Court ruling stands on appeal. On Jan. 8, the Federal Court concluded in Daniels v. Canada that Métis and non-status Indians fall within the federal government's jurisdiction and qualify as "Indians" under s. 91(24) of the Constitution Act. However, on Feb. 6, the government announced it would appeal the decision as the lengthy legal battle over jurisdiction continues. If the Federal Court's decision stands on appeal, it would allow Métis and non-status Indians to go to the federal government to obtain the same programs and services that First Nations and Inuit people have been receiving for years. "The point of the case was to break up a dysfunctional logjam that had arisen in the way in which governments deal with Aboriginal Peoples in Métis and non-status Indian categories," says Andrew Lokan, one of the counsel for the plaintiffs. "By getting clarity on that from the courts, we very much hope this will break the log-jam and will enable the rights, needs, and interests of Aboriginal Peoples to be dealt with in a more rational and fair manner." David McNab, an associate professor who teaches courses on the Métis at York University, says the ruling is significant in allowing Métis and non-status Indians to move towards becoming full-fledged members of Canadian society. "For the federal government, it will cost billions and billions of dollars in the long term," says McNab. "The federal government will have to assume the costs of not only land and natural resources but costs in terms of health and education." However, he adds it won't be a bill Prime Minister Stephen Harper will get on his desk tomorrow but will instead involve a process taking place over 10 or 20 years. The decision isn't the only recent case where the Métis have been successful. On March 8, the Supreme Court of Canada released its decision in Manitoba Metis Federation Inc. v. Canada (Attorney General). That case arose out of an agreement in 1870 in which the government agreed to grant Métis children significant shares of land and recognize existing Métis landholdings. However, many Métis never got the land promised to them. More than a century later, the descendants of the Métis people sought a declaration that Canada had breached its obligation to implement the promises in the Manitoba Act. The majority of the court concluded that the Métis are entitled to a declaration that Canada had failed to implement s. 31 as required by the honour of the Crown. Chief Justice Beverley McLachlin and Justice Andromache Karakatsanis wrote that s. 31 of the Manitoba Act "constitutes a constitutional obligation to the Métis people of Manitoba, an aboriginal people, to provide the Métis children with allotments of land." Lokan says he's sure the Manitoba Metis Federation decision will be on the agenda as the Daniels case heads to the appeal court. In arguments before the Federal Court, the government maintained in Daniels that there were insufficient facts and grounds to find that non-status Indians and Métis fell under s. 91(24) and that the Métis are not and were not considered "Indians." It also argued there's no group legally known as "non-status Indians." It denied the allegations of deprivation and discrimination. 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The federal government denies that they have responsibility for Métis; the provinces take the opposite position and see the matter as a funding issue for which the federal government is primarily, if not exclusively, responsible." While the government denied the Métis some programs and services available to other aboriginal groups, Phelan noted they also experienced some of the same differential treatment. "Non-status Indians and Métis were differentiated from others in Canadian society, particularly Euro-Canadians, because of their connection to this racial classification. To the extent that they were discriminated against or subjected to different treatment, such as in schooling, liquor laws, land, and payments . . . it was based on their identification with or connection to Indian ancestry." Clément Chartier, president of the Métis National Council, notes the government excludes the Métis from a number of programs and services offered to First Nations and Inuit people. Chartier says Daniels "opens the opportunity for the government to extend similar programs and services to the Métis, which is significant because a lot of the people require similar benefits that are provided to First Nations and Inuit people." The Federal Court of Appeal has scheduled a hearing in Daniels for Oct. 29. "It's disappointing that the matter was appealed and that we may be waiting another couple of years for the jurisdictional clarity that we're looking for," says Lokan. On April 19, the Alberta government filed a motion for intervener status. It argued the province has a "unique legislative scheme with respect to Métis lands and people" and that it has created "legislation that establishes and protects Métis settlements." Lokan, however, says the Federal Court's decision isn't incompatible with provincial programs in some jurisdictions. "There is provincial programming available for status Indians as well as, in one province in particular, for Métis. We don't see the result in this case as undercutting that at all." LT

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