Law Times

Page 8 May 4, 2015 • Law Times www.lawtimesnews.com SCC to hear Daniels this fall Government appeals last year's landmark Federal Court of Appeal ruling BY shannon Kari Law Times he question of whether the federal government has a constitutional re- sponsibility for Métis and non-status Indians will be before the Supreme Court of Canada this fall in an appeal that could af- fect hundreds of thousands of people across the country. The Federal Court of Appeal ruled last year in Canada (Indian Affairs) v. Daniels that Métis are "Indians" with- in the meaning of s. 91(24) of the Con- stitution Act. However, it also decided that this recognition doesn't extend to non-status Indians as it overturned that part of the trial court decision. Both aspects of the Federal Court of Appeal ruling will be before the Su- preme Court in a hearing scheduled for October. A number of aboriginal organiza- tions have already sought intervener status in the appeal. Alberta, though, is the only province to date to seek to be an intervener and it argued in support of the federal government's position in the lower courts. The declaration issued by the Federal Court of Appeal has broad and positive implications, says Jean Teillet, who repre- sented the Métis Nation of Ontario as one of the interveners in the case. "This is a big question for aboriginal people," she says. A declaration that s. 91(24) includes Métis means the federal government must act in their best interests, says Teillet, a partner at Pape Salter Teillet LLP in Vancouver. The federal government has consis- tently held that Métis come within pro- vincial jurisdiction. The decision to take the case to the Supreme Court is "politi- cal," according to Teillet. "Fundamentally, the federal government doesn't want to take this on," she says. The road to the Supreme Court has been lengthy for the Métis organizations that began the court challenge for greater recognition 16 years ago along with Métis activist Harry Daniels, who died in 2004. The organization he headed, the Con- gress of Aboriginal Peoples, is one of the plaintiffs in the case. In addition to the appeal filed by the federal government, the congress is cross- appealing the finding that non-status In- dians don't come within s. 91(24). As well, it's asking the Supreme Court to go be- yond the conclusion that the federal gov- ernment is in a fiduciary relationship and find that it has a fiduciary duty towards Métis and non-status Indians. "The second declaration is necessary because Canada has shown a persistent willingness to damage Metis and non-sta- tus Indians in a manner inconsistent with the fiduciary relationship to which the Crown and Metis and non-status Indians are bound," its lawyers, Joseph Magnet and Andrew Lokan, write in the factum filed with the Supreme Court. The jurisdictional issue isn't just sym- bolic but "affects real people in real ways," wrote Magnet, a University of Ottawa law professor, and Lokan, a partner at Paliare Roland Rosenberg Rothstein LLP. Gov- ernments have long treated the issue of Métis and non-status Indians as a "politi- cal football" with "buck passing" between the federal and provincial levels, accord- ing to the lawyers. For her part, Teillet says a more appro- priate description might be "jurisdiction- al hot potato" for both levels of govern- ment. The purpose of the legal challenge is to require the federal government "to sit down and negotiate" on issues of impor- tance to the Métis, she notes. "At the heart of this case, we ask a very simple question: If I am Metis or non- status Indian, whose door do I knock on?" says Lokan. "Which government do I ask to ad- dress my rights, needs, and interests as an aboriginal person?" The Métis National Council estimates there are about 500,000 people who legiti- mately can be considered Métis. In terms of non-status Indians, Teillet suggests it's more difficult to find an "ascertain- able group" for the purposes of the case before the Supreme Court. At the same time, one of the "under- currents" of the court challenge "that nobody talks about is the sys- temic racism that still goes on in Canada and gets ratcheted up when it is about people who are of mixed race," she says. In reaching its conclusions, the Federal Court of Appeal consid- ered a significant amount of his- torical evidence. It found that at the time of Confederation in 1867, the term "Indian," as interpreted by the federal government, had a broad meaning in regards to the ethnicity of an aboriginal person. The court also accepted the ar- guments of the Métis Nation of Ontario that an analysis of the is- sue requires an inquiry into more than the nature of a connection to Indian ancestors. "The Metis have their own lan- guage, culture, kinship connec- tions and territory. It is these factors that make the Metis one of the Aboriginal peoples of Canada," wrote Federal Court of Appeal Justice Eleanor Dawson for the three-judge panel. The decision of the Federal Court of Ap- peal "is not that radical," says Signa Daum Shanks, a professor at Osgoode Hall Law School in Toronto. A declaration provides "very strong symbolism" to generate "more positive communications between the par- ties," says Daum Shanks, who has taught in the areas of aboriginal self-government and Canadian legal history. While the issues before the Supreme Court are very significant, it's not a "f lood- gates decision" in terms of the financial impact of what it will decide, she says. "It will stimulate discussion on how social programs are provided, not nec- essarily increasing costs," says Daum Shanks. "It means Canada will have to be more responsible than it has been before," she adds. LT 'This is a big question for aboriginal people,' says Jean Teillet. FocuS on ABoRIGInAL Law LEGALFEEDS.CA A DAILY BLOG OF CANADIAN LEGAL NEWS FEEDS LEGAL POWERED BY V O T E D BEST NEWS BLOG CLAWBIES 2015 Untitled-6 1 2015-03-20 10:20 AM T

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