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Law Times • apriL 18, 2016 Page 5 www.lawtimesnews.com NEWS law.utoronto.ca/ExecutiveLLM GPLLM Global Professional Master of Laws [Get a Master of Laws] Because business issues are legal issues. So if you want to get ahead in business, get the degree that gets you there faster. ONE YEAR – PART - TIME – NO THESIS – FOR L AWYERS AND NON - LAWYERS Untitled-8 1 2015-03-02 11:15 AM Supreme Court ruling on aboriginal rights 'elegant' BY DAVID DIAS For Law Times T he lawyer represent- ing the Métis National Council in a recent Su- preme Court decision says the ruling is "elegant" in the way it "walks around" the issue of whether non-status and Métis ab- original groups should be forced to meet criteria before being deemed Indian enough to demand consul- tation and negotiation. In the ruling Daniels v. Can- ada, history was made as the Su- preme Court of Canada declared all non-status and Métis Indians to be, without exception, "Indians" under the Constitution — and af- forded all rights therein. Jason Madden, who repre- sented the Métis National Council, says he was pleasantly surprised by the emphatic language used by Justice Rosalie Abella, and how far the court was willing to go to bring Métis and non-status Indians into the fold. Madden says the decision opens the door to wider reconcili- ation with Métis and non-status Indians, who've historically been disenfranchised and disregarded by both government and aborig- inal groups. "I actually like the way Abella starts it. She says that the curtains are opening wider on the stage, be- cause previously Métis have been shuffled off the stage, and what she is saying is that reconciliation is about all aboriginal people, and that they need to be included on the stage." Daniels v. Canada is the fruit of a legal battle initiated more than a decade ago by the late Métis lead- er Harry Daniels, who sought on behalf of Métis and non-status In- dians a three-part declaration: 1. that Métis and non-status Indians are "Indians" as the term is used in s. 91(24) of the Constitution Act, 1867, 2. that the Queen owes a fi- duciary duty to them as such, 3. and that they have the right to be consulted by the federal gov- ernment on a collective basis, respecting their rights, interests, and needs as aboriginal people. At trial, the court dismissed the second and third declara- tions, but ruled that Métis and non-status aboriginals were in- deed Indians under the Consti- tution. e Federal Court of Ap- peal, however, narrowed that definition last year, excluding non-status Indians outright and ruling that only Métis who met certain criteria under the SCC's 2003 decision in R. v. Pow- ley could be deemed "Indian." In Daniels, a unanimous panel of nine judges set aside the appeal court's narrow defin- ition and granted constitutional rights to all Métis and non-status Indians. And while the decision, written by Abella, similarly dis- misses the second and third dec- larations, it does so only because fiduciary and consultative duties are presumptive under the first declaration. "ere is no need to delineate which mixed ancestry com- munities are Métis and which are non status Indians. ey are all 'Indians' under s. 91(24) by virtue of the fact that they are all Aboriginal peoples," the deci- sion states. "e historical, philosoph- ical, and linguistic contexts es- tablish that 'Indians' in s. 91(24) includes all Aboriginal peoples, including non status Indians and Métis. e first declaration should accordingly be granted." As the decision explains, s. 91(24) and s. 35 in the Consti- tution play different roles: the former sets out jurisdictional obligations owed to aboriginals; the second creates a framework for land claims and treaty nego- tiations. So, while Métis and non- status aboriginals are all collect- ively 'Indians' under s. 91(24) of the Constitution, individual na- tive bands, along with Métis and non-status Indians, must be as- sessed on a case-by-case basis — employing the framework set out under s. 35 and the criteria under Powley — when pressing cases around land claims and treaties. "We got the trifecta . . . and we weren't expecting it," says Madden. "We were clearly ex- pecting number one, which was inclusion, but they went even further to say, 'On fiduciary relationships, we will reaffirm what we've already said, and on the duty to negotiate . . . we've al- ready recognized it." at may not sound like a substantial victory, but until now Métis and non-status Indians have been denied jurisdictional responsibility or even a seat at the table. "Because of the lack of ac- countability and the lack of cer- tainty, these people have fallen through the cracks," says Mad- den. "And the court is saying, 'No longer . . . You cannot sit on your hands when you know there are rights and claims there and there is a positive obligation to negoti- ate.'" LT Jason Madden says he was pleasantly sur- prised at how far the court was willing to go to bring Métis and non-status Indians into the fold. Promote your law firm by ordering reprints of articles from the voice of the profession — Law Times! 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