‘We won’t be left behind anymore’: aboriginal leaders laud Supreme Court ruling on Metis rights. “The important thing to understand about court decisions – especially those written by the Supreme Court of Canada – is that they are beginnings as much as they are endings.” … “Governments can no longer play football with Metis rights.”

The Decision: Daniels v. Canada (Indian Affairs and Northern Development)

‘We won’t be left behind anymore’: aboriginal leaders laud Supreme Court ruling by Jason Warick, Saskatoon Star Phoenix and the Canadian Press, April 14, 2016, Calgary Herald

Saskatchewan aboriginal leaders are elated by the Supreme Court of Canada’s unanimous ruling declaring that Metis and non-status Indians are now recognized as Indians under the Constitution.

“This is a very good day,” said Metis Nation-Saskatchewan president Robert Doucette.

“There is a historic opportunity here for us. Governments can no longer play football with Metis rights.”

Kim Beaudin, the Congress of Aboriginal People’s Saskatchewan board member, said he was “elated, happy, hopeful” about the decision.

“We won’t be left behind anymore,” Beaudin said.

The unanimous 9-0 ruling stated non-status Indians and Metis should be considered Indians under the Constitution “and it is the federal government to whom they can turn.”

Beaudin said it’s been a long wait for justice after the previous Conservative government appealed. Beaudin noted the court sided with aboriginal people on several major cases fought by the former government.

Beaudin and Doucette are optimistic that Justin Trudeau’s Liberal government will honour their rights and the ruling.

Doucette, however, cautioned that there will not be immediate changes, and that this ruling will not mean Metis people enjoy all the same rights as First Nations people.

“This opens the door to negotiate,” Doucette said.

Doucette, who was not invited to Ottawa by Metis National Council president Clem Chartier, admitted there are still wide rifts among Metis factions in Saskatchewan. He said Metis people must work together before they are able to assert their rights with the federal government.

“I think we need to get our own house in order first,” he said.

The high court was also asked to rule on whether the federal government has the same responsibility to them as to status Indians and Inuit.

The court said there was no need to rule on whether the federal government has a fiduciary duty to Metis and non-status Indians as aboriginal peoples or that they have a right to be consulted by the government on their rights and needs.

“It was already well established in Canadian law that the federal government was in a fiduciary relationship with Canada’s Aboriginal Peoples and that the federal government had a duty to consult and negotiate with them when their rights were engaged,” said Justice Rosalie Abella, writing for the court.

“Restating this in declarations would be of no practical utility.”

The long-awaited ruling will have an impact on the relationship between the federal government and 600,000 Metis and off-reserve Indians across the country.

“The constitutional changes, the apologies for historic wrongs, a growing appreciation that aboriginal and non-aboriginal people are partners in Confederation . . . all indicate that reconciliation with all of Canada’s Aboriginal Peoples is Parliament’s goal,” Abella wrote.

Abella cited the Report of the Royal Commission on Aboriginal Peoples, and the Final Report of the Truth and Reconciliation Commission of Canada.

A cheer arose from a crowd in the packed foyer of the Supreme Court as the decision was announced.

The government considered Metis to be Indians as far back as 1818 and the notion was upheld after Confederation, Abella wrote in a ruling that offered a sweeping review of government inquiries and studies of aboriginal relations dating back decades.

“Both federal and provincial governments have, alternately, denied having legislative authority over non-status Indians and Metis,” the ruling said.

“This results in these indigenous communities being in a jurisdictional wasteland with significant and obvious disadvantaging consequences,” it added, which included depriving them of programs, services and other government benefits.

The Congress of Aboriginal Peoples went to court in 1999 to allege discrimination because they were not considered “Indians” under the Constitution. [Emphasis added]

Métis, non-status Indians win Supreme Court battle over rights by Gloria Galloway and Sean Fine, April 14, 2016, The Globe and Mail

The Métis and non-status Indians are “Indians” within the meaning of Canada’s 1867 Constitution, the Supreme Court of Canada has said in a unanimous decision that sets the stage for potentially costly negotiations around land claims and enhanced social benefits for nearly 700,000 people.

The ruling states unequivocally that the term “Indians,” as it was written into law at the time of Confederation, includes all aboriginal people, not just those who hold status as members of a First Nation.

It naturally follows, Justice Rosalie Abella said in writing for the court, that the federal government has a fiduciary relationship with the Métis and non-status Indians, just as it does with status Indians, and that the Métis and non-status Indians have the right to be consulted and to negotiate on matters affecting them.

Thursday’s ruling is not a direct order to Ottawa to provide certain programs and benefits to the Métis and non-status Indians. But it may change the framework in which Ottawa deals with the 450,000 members of the Métis community and Canada’s roughly 220,000 non-status Indians.

Prime Minister Justin Trudeau called the decision “a landmark ruling that will have consequences and impacts right across the country.” He said his government “will be engaging, not just on our own but with indigenous leadership to figure out what the path is forward.”

The ruling, which ends a case that has been before the courts since 1999, was greeted with euphoria by leaders of Canada’s Métis community and those representing indigenous people who live off-reserve.

“It is a very, very important decision in terms of the future and the lives of our people, our families, and we will now expect the federal government to call a meeting, to sit down with us, to start a process of dialogue,” said Dwight Dorey, chief of the Indigenous Peoples’ Assembly of Canada.

David Chartrand, president of the Manitoba Métis Federation, had trouble finding the right word to describe his emotions. “Ecstatic, excited, happy, pleased,” he said.

Within the next year, Mr. Chartrand said, he hopes to begin negotiations around whether the Métis should be exempt from paying some forms of income tax, and whether they should receive extended health care and money for postsecondary education offered to First Nations people who live on reserves.

Sometimes called “the road-allowance people” because, for the most part, they lacked a land base and often set up makeshift communities, the Métis have been fighting for decades for recognition as a distinct aboriginal community with a claim to federal support and a seat at the table in land-claims talks.

“Both federal and provincial governments have, alternately, denied having legislative authority over non-status Indians and Métis,” Justice Abella wrote. “This results in these indigenous communities being in a jurisdictional wasteland with significant and obvious disadvantaging consequences.”

The federal government had argued that the Métis were not meant to be included in the 1867 definition of Indians and that there is no such thing as non-status Indians. It also said the entire case was irrelevant and dangerous.

But Justice Abella concluded that “in fact, ‘Indians’ has long been used as a general term referring to all indigenous peoples including mix-ancestry communities like the Métis.” And accepting that the Métis and non-status Indians belong under the umbrella of the definition, she said, will have the “undeniably salutary benefit of ending a jurisdictional tug of war.”

Jason Madden, the lawyer for the Métis National Council, said specific and comprehensive land claims will be an even larger issue than health and educational benefits. “Reconciliation for the Métis has been stalled since the eighties” he said. “Now, all of a sudden, the table is set for discussion.”

Constitutional law specialist Joseph Magnet, who brought the case to the Supreme Court on behalf of the Métis and non-status Indians, said the ruling means Canada must negotiate with those groups. “This decision today enables a productive relationship that has been blocked by this fighting between federal and provincial governments, basically, about who is going to pay,” [Or to delay until Métis and non-status Indians give up?] the Mr. Magnet said. “Canada has the primary responsibility here. They need to engage with us.”

In 2003, the Supreme Court affirmed that the Métis are a distinct aboriginal group with a right to hunt. Ten years later, the court said they had outstanding claims that were still at issue.

The current case was about whether federal responsibility for “Indians, and lands reserved for the Indians” includes the Métis. It was launched by Métis leader Harry Daniels in 1999. He has since died, and his son, Gabriel, signed on to the case.

Gabriel Daniels said his father would be proud and happy with the ruling. “But, as happy as he would be,” Mr. Daniels said, “I think he would be thinking about what happens tomorrow and thinking about the future and what’s the next steps and what are we going to do now.” [Emphasis added]

Unanimous ruling says Ottawa has jurisdiction over all indigenous people, ‘This is a great day for over 600,000 Métis and non-status Indians,’ says Dwight Dorey by Tim Fontaine ith files from Janyce McGregor, April 14, 2016, CBC News

“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.”

What does it mean to be Métis?
“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.

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)

“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. [Emphasis added]

Supreme Court recognizes rights of Métis and non-status Indians, The landmark ruling gives these groups a starting point for negotiating rights, treaties, services and benefits with Ottawa by Joanna Smith Ottawa Bureau reporter, April 14, 2016, Toronto Star 

OTTAWA—The Supreme Court of Canada has expanded the responsibility of the federal government for indigenous peoples in Canada, ruling unanimously that Métis and non-status Indians fall under its constitutional jurisdiction.

“The constitutional changes, the apologies for historic wrongs, a growing appreciation that Aboriginal and non-Aboriginal people are partners in Confederation, as well as the Report of the Royal Commission on Aboriginal Peoples and the Final Report of the Truth and Reconciliation Commission of Canada, all indicate that reconciliation with all of Canada’s Aboriginal peoples is Parliament’s goal,” Supreme Court Justice Rosalie Abella wrote in the unanimous decision delivered Thursday morning.

The Supreme Court ruled that the roughly 418,000 Métis and 214,000 non-status Indians—or First Nations people without registered Indian status – should be considered “Indians” under section 91(24) of the Constitution Act of 1867, just like Inuit peoples and First Nations with registered Indian status.

The landmark ruling gives these groups a starting point for negotiating rights, treaties, services and benefits with Ottawa, although it does not provide the federal government with directions on how to proceed.

Prime Minister Justin Trudeau called it a “landmark decision” and reiterated his Liberal government has committed to reset Canada’s relationship with indigenous peoples.
“Quite frankly, we as a government have positioned ourselves in a way that is focused on renewing the relationship with indigenous peoples across this country through an open, respectful, honest, engaged partnership and relationship,” said Trudeau, noting that the Liberals’ first budget committed billions in spending to help indigenous communities “close the gap” with other Canadian communities.

“We of course respect the Supreme Court decision, and we will be engaging, not just on our own but with indigenous leadership, to figure out what the path is forward. But I can guarantee you one thing: the path forward will be together, as we move forward,” Trudeau said.

The Supreme Court said this decision should put an end to the back-and-forth over whether provinces or the federal government has legislative jurisdiction over Métis and non-status Indians, which often left these people with no sure way of who to turn to or negotiate with, or who to hold to account for unfulfilled obligations.

“Delineating and assigning constitutional authority between the federal and provincial governments will have enormous practical utility for these two groups who have, until now, found themselves having to rely more on noblesse oblige than on what is obliged by the Constitution,” Abella wrote in the decision.

“This results in these Indigenous communities being in a jurisdictional wasteland with significant and obvious disadvantaging consequences,” Abella wrote, adding that while the Supreme Court recognizes section 91(24) does not create a duty to legislate, “it has the undeniably salutary benefit of ending a jurisdictional tug-of-war in which these groups were left wondering about where to turn to for policy redress.”

The ruling noted that even before Confederation, the Crown had often included Métis and others of mixed aboriginal ancestry in its understanding of “Indians”, used then as a generic term for aboriginal peoples, and that it often applied laws and policies to them as such.
That included sending an untold number of Métis children into the Indian residential school system, where the Truth and Reconciliation Commission noted they suffered the same dark legacy of abuse as First Nations and Inuit children.

The Supreme Court, however, did not deliver the other two declarations that Métis and non-status Indians had been seeking: that the federal government, rather than the provinces, has a fiduciary duty to Métis and non-status Indians, and that it has a constitutional obligation to consult and negotiate with Métis and non-status Indians.

The Supreme Court ruled these two declarations were not needed, because the fiduciary duty and the obligation to consult for all aboriginal peoples are already well-established.
The Supreme Court also noted that this ruling should not be taken to mean that provincial laws regarding Métis and non-status Indians are constitutionally invalid.

Harry Daniels, the late national Métis leader best known for negotiating the inclusion of the rights of Métis people in section 35 of the Constitution Act of 1982, launched the case with Dwight Dorey, chief of the Congress of Aboriginal Peoples (now calling itself the Indigenous Peoples’ Assembly of Canada), in 1999.

They argued the federal government was being discriminatory on its delivery of programs and services, negotiations and interpretation of aboriginal rights by refusing to view Métis and non-status Indians – First Nations people, most often living off-reserve, who are not registered according to the criteria of the Indian Act – as their constitutional responsibility in the same way it does for status Indians and Inuit people.

Section 91(24) of the Constitution Act of 1867 gives the federal government jurisdiction over “Indians, and lands reserved for Indians,” which now also includes Inuit people in that definition.

This affects everything from the way negotiations work for land claims and natural resource development, the right to hunt, fish or trap on public land and the way housing, health and education services are funded and delivered, with untold additional costs to Ottawa at a time when the Liberal government has already dramatically increased its budget for First Nations and named improving their outcomes as a top priority.

Daniels died in 2004, but his case made history in January 2013 when a Federal Court judge ruled both Métis and non-status Indians would be considered “Indians” and fall under federal jurisdiction.

That decision, however, did not define a path for the federal government when it came to fiduciary responsibility or the duty to consult.

The Federal Court of Appeal narrowed the scope in April 2014, excluding non-status Indians and upholding those rights for Métis people who met specific criteria.

The Congress of Aboriginal Peoples decided to appeal to the Supreme Court, hoping the ruling would provide the recognition it had won from the lower court, and then the federal government launched a cross-appeal.

The Supreme Court heard arguments from the Congress of Aboriginal Peoples (recently renamed as the Indigenous Peoples’ Assembly of Canada), the federal government and several other interested groups last October.

The Supreme Court ruling issued Thursday upheld the Federal Court ruling and overturned the appeal, concluding that it was not necessary to agree on a definition of who is and is not a Métis – or a non-status Indian – for the purposes of section 91(24) of the Constitution Act.

“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,” Abella wrote.
Read the full decision here.

NEXT STEPS
A memo obtained by the Star through an access-to-information request sheds some light on how the Liberal government might act in the wake of this Supreme Court decision.
The Conservative government prepared the memo for Bernard Valcourt, who was then minister of aboriginal affairs, in June 2014 when the government was deciding whether to let the decision of the Federal Court of Appeal to stand. [Emphasis added]

The Supreme Court ruling on Métis: A roadmap to nowhere by Chris Andersen, April 14, 2016

Chris Andersen is a Métis professor at the University of Alberta, Faculty of Native Studies

In its long awaited judgment, the Supreme Court of Canada handed down its decision in the “Daniels” case. This case was brought by the late Métis leader, Harry Daniels, who was centrally responsible for the inclusion of “Métis” in section 35 of the 1982 Constitution Act. As jurisprudential scholars, lawyers directly involved in the SCC case and relevant policy actors pore over the paragraphs of a surprisingly short decision, they will no doubt have much to say about the definition of Métis fashioned to include both the Métis people of Red River and those who have begun to self-identify as Métis in recent years, based on their “mixed ancestry.”

I’ve joked that the logic contained in this court decision amounted to a coming of the zombie apocalypse since it raised from the dead the racialized logic of “Métis-as-mixed” that an earlier 2003 SCC case, R. v. Powley, had already attempted to put a stake in.

But as it turns out, zombies are not so easily killed.

The important thing to understand about court decisions – especially those written by the Supreme Court of Canada – is that they are beginnings as much as they are endings. That is to say, court decisions must be understood as imparting important – if sometimes necessarily vague and often maddeningly contradictory – policy principles that have the power to enormously impact the dynamics of future policy relationships.

This potential is why, in reading the actual court decision, I was so puzzled to see the SCC repeatedly fall back on a racial “Métis-as-mixed” logic to understand Métis identity – rather than one based in peoplehood. Here, the Daniels court held that distinctive historical events, leaders, territories, economies, cultures and political actions or mere mixed aboriginal and non-aboriginal ancestry were equally valid for understanding the term Métis.

Moreover, in reinterring a deeply racist logic partially laid to rest in the earlier Powley decision (a decision about rights rather than jurisdiction), this decision has created a patchwork of contradictions that will beguile aboriginal policy dynamics pertaining to Métis and non-status Indians long into the future.

Having said all of this, where does the Daniels decision leave us, exactly? Clearly, the decision’s findings are significant, and expectations from aboriginal organizations that already hold policy relations with the federal government will no doubt be high. Is the federal government now on the financial hook for provincial Métis organizations who receive provincial funding? What about current, federally funded Métis training-to-employment programs – will these be expanded?

On a different scale, if Métis identity really is simply about mixed aboriginal and non-aboriginal ancestry, can a distant ancestor located in an archival document or even a DNA test now serve as bases for adjudicating claims of Métis identity rather than culture, community or link to the Métis people?

If past experience with SCC decisions has taught us anything, the myriad interveners involved in this case are already interpreting the decision in light of their existing and future policy needs, and will use it to shape their future dealings with governments. The federal and provincial governments are doing the same. Prime Minister Justin Trudeau tweeted Thursday that the government of Canada plans to respect the Daniels decision and will work toward reconciliation – let’s hope that governments are clear on what it means to reconcile with historically rooted indigenous peoples rather than more recently identifying individuals. [Emphasis added]

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