Law Times

Law Times • may 1, 2017 Page 9 www.lawtimesnews.com FOCUS Way to go before self-government achieved Rulings impact Métis and non-status Indians BY MARG. BRUINEMAN For Law Times L awyers for Canada's Mé- tis and non-status Indi- ans — a group the Su- preme Court of Canada described as having long been in jurisdictional limbo — are buoyed by a series of recent de- velopments, including the high court's ruling in Daniels v. Canada (Indian Affairs and Northern Development). But there is concern that Canada's indigenous population still has a way to go to reach the end game of self-government. The issue of whether Métis and other non-status Indians fell under the legislative authority of the federal government was raised in Daniels. They sought to enforce their rights and interests as aborigi- nal people. The court ultimately found that they are Indians as set out in the constitution and, therefore, fall under the Indian Act. On its own, Daniels provides clarity on the jurisdiction issue, but when added to two previous Supreme Court of Canada de- cisions, they result in a positive obligation for the federal gov- ernment to address outstanding claims and outstanding rights, says Jason Madden, partner at Pape Salter Teillet LLP who practises aboriginal law with a focus on Métis-related issues and was counsel for the inter- vener Métis National Council in Daniels. "The last almost-decade-plus, the Métis have taken three key cases to the SCC on pretty fun- damental issues; I call them the Métis Trifecta," says Madden. R. v. Powley 2003 from Sault Ste. Marie resolved the issue of who the Métis are and con- firmed their rights. Prior to that, the test for First Nations was contact, and since the Métis emerged after Euro- pean contact with North Amer- ica, the Métis had been excluded from that group and the rights extended to them. Powley modified the test to be effective control instead of contact, validating their rights and protections. Then came Manitoba Mé- tis Federation Inc. v. Canada (Attorney General) in 2013 in which the court found there had been a breach by the Crown — in the promise of land in the Red River settlement. "You put those three pieces together and inevitably you have all the key legal questions that needed to be answered. So more recently you've been see- ing progress with some Métis groups with finally getting to those negotiation tables," says Madden, who represents the Manitoba Métis Association and is himself a Métis. "You just have a bunch of things coming together," he says, also pointing to the positive ini- tiatives indicated by Prime Min- ister Justin Trudeau on issues related to indigenous people, a recent ministerial special rep- resentative report and Daniels, along with the two previous cas- es "that I think finally get people to realize the time has finally come that we need to deal with the Métis." In Daniels, the plaintiffs suc- cessfully sought a declaration that non-status Indians and Mé- tis are Indians under the consti- tution to guarantee certainty and accountability because pro- vincial and federal governments have denied having legislative authority over them, leaving these indigenous communities in a jurisdictional wasteland. "Both federal and provincial governments have, alternately, denied having legislative author- ity over non-status Indians and Métis. As the trial judge found, when Métis and non-status In- dians have asked the federal gov- ernment to assume legislative authority over them, it tended to respond that it was precluded from doing so by s. 91(24). And when Métis and non-status Indians turned to provincial governments, they were often refused on the basis that the is- sue was a federal one," wrote Su- preme Court of Canada Justice Rosalie Abella. "This results in these Indig- enous communities being in a jurisdictional wasteland with significant and obvious disad- vantaging consequences. . . . " University of Ottawa law pro- fessor Sébastien Grammond, who specializes in aboriginal is- sues, says now that the jurisdic- tional football has finally landed in the hands of the federal gov- ernment, other issues need to be resolved. And while the constitution divides powers between Canada and the provinces, it also divides their responsibilities. So the expectation is that Daniels will pave the way for these groups to finally be afford- ed the programs and services previously only extended to sta- tus Indians. "It could mean the federal government is responsible for spending money to set up pro- grams aimed at indigenous peoples other than status Indi- ans. And that would be the ma- jor impact of Daniels. Although this is not spelled out in the deci- sion itself, because the decision speaks only about jurisdiction," says Grammond. Discussions between the Mé- tis and the federal government must now follow. But, he adds, there are many other groups claiming indig- enous status and it remains to be seen how they will be recog- nized by the federal government and what will be extended to them. The issue not yet addressed is whether all indigenous groups are entitled to the same rights and/or programs. If not, how does the fed- eral government differentiate between various indigenous groups. Grammond points out that the historical political demo- graphic situation of various in- digenous groups is quite differ- ent from status Indians who live on reserves. He points to the Algonquin of Ontario, who in October at- tained an agreement in principle with the government — which includes land in Eastern Ontario — that is expected to result in Ontario's first modern treaty. "There are many other groups who claim to be indig- enous. Sometimes, it's a recent claim," says Grammond, adding that it's not always easy to figure out which groups should be rec- ognized "so the government will have to make decisions about that. And this might lead to fur- ther rounds of litigation, but it may take time." Bruce McIvor, principal of First Peoples Law based in Van- couver, B.C., recognizes that Daniels resolves the important question of federal versus pro- vincial jurisdiction and that it may lead to serious negotiation that could have long-term effects toward the provision of services, which has been underfunded and is an issue that has "been bounced back and forth like a hot potato" between govern- ments. He also points out that Dan- iels is about legislative authority not rights, which was established in Powley. But, he adds, a lot has hap- pened since Métis leader Harry Daniels, who is since deceased, launched the case in 1999. "I think it's an example of a case that started a long time ago and the law has evolved a lot since the case began. While it's an important decision to a large degree, it is out of step with what indigenous people across Canada and around the world are seeking to achieve. They're seeking to achieve recognition of their own, inherent jurisdiction. They're not in court looking to confirm the Crown jurisdiction over them," says McIvor who traces his Métis roots to Mani- toba's Red River Settlement. He sees s. 91(24) of the Con- stitution not as a shield to pro- tect the indigenous population but as an historical tool of colo- nization with which the indig- enous population is controlled and oppressed. The Daniels decision, then, now applies this tool of coloniza- tion to the Métis and non-status Indians, he adds. What he now seeks is the abil- ity to achieve self-government for the Métis and exercise their own decsision-making author- ity, recognizing their own laws. "Parallel to the Canadian Constitution, there exists still and now it's protected by sec- tion 35 of the constitution that inherent indigenous lawmak- ing authority separate from the constitution, and that's where most indigenous people across the country are focused, in hav- ing their own inherent jurisdic- tion and lawmaking authority recognized," says McIvor, refer- ring to self-government rights including laws for membership, revenue sources, territories and child welfare. "As a Métis person, I'm not re- ally interested in the federal gov- ernment's jurisdiction to pass laws, specifically in relation to me and my children." LT Jason Madden says the Métis have taken three important cases to the Supreme Court of Canada on 'pretty fundamental issues.' 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