Constitutional Jurisdiction over the Métis: The question now is what to do with it

Posted on April 15, 2016 in Equality Policy Context – Opinion
Apr. 15, 2016.   Eric Adams

Eric M. Adams teaches and researches constitutional law at the University of Alberta, Faculty of Law, and is a Research Fellow at the Centre for Constitutional Studies.

Thursday, in Daniels v. Canada, the Supreme Court of Canada decided, for the first time, who is a constitutional Indian. The case ends not only 17 years of expensive, protracted, and acrimonious litigation, but nearly 150 years of confusion, buck-passing, and dissembling about Canada’s legislative responsibilities towards indigenous peoples (disclosure: I was briefly involved as counsel for the plaintiffs at the outset of the litigation).

At its heart, the Daniels case is about which level of government has jurisdictional responsibility for the Métis and other indigenous peoples not recognized as “Indians” under the federal Indian Act. The answer, as in all constitutional division of powers cases, is contained in the Constitution Act, 1867, which divides jurisdictional authority between the provincial and federal governments. The intention of the constitutional framers was that each level of government would possess “exclusive” legislative jurisdiction – the power to pass laws in relation to specific matters – over a defined list of discrete subjects.

Among the 29 subjects assigned to the federal government was section 91(24) – “Indians, and Lands reserved for the Indians” – the document’s only mention of Canada’s indigenous peoples. John A. Macdonald predicted with satisfaction that the simplicity and clarity of the constitutional division of powers had “avoided all conflict of jurisdiction and authority.” He could not have been more wrong.

Canada, as it turned out, was much a much more complicated place to govern than the orderly lines of the Constitution suggested. Jurisdictional confusion, political disputes, and constitutional litigation over the division of powers came to define Canadian constitutional law over the ensuing century.

Like other provisions in the Constitution, the precise meaning of “Indians” in s. 91(24) almost immediately gave rise to disagreement. Unlike other provisions in the Constitution, governmental wrangling did not involve a claim of constitutional responsibility, but often a denial of it. The federal government often argued that it could not provide programs to the Métis and non-status Indians because they were not “Indians.” Provinces responded that they could not provide programs because they were.

The practical result, as Justice Rosalie Abella points out in her succinct and unanimous judgment, was to place certain “indigenous communities” in a “jurisdictional wasteland.” It was a wasteland that meant the further exclusion of vulnerable people and communities; the double-discrimination of not being Indian enough for government programs, while simultaneously encountering the racism of mainstream society.

But as the historical record makes clear (the trial judge heard evidence “from the time of Champlain in Passamaquoddy Bay in 1603 to the present day”), federal government practice in relation to Canada’s Indigenous peoples was often complicated, inconsistent, and contradictory.

In part, the problem was the inevitable collision of a racist and reductionist constitutional prism premised upon the idea of a single racial category of “Indian”, and the rich and varied reality of indigenous nations, communities, families, and lives. Quoting from Thomas King’s The Inconvenient Indian, the Supreme Court points out that “[n]o one really believed there was only one Indian,” despite the fact that the Constitution pretended otherwise.

And so in numerous examples involving treaties, legislation, residential schools, and other government programs – for good and bad – the evidence disclosed the reality that the federal government often considered Métis, non-status Indians, and persons of mixed ancestry as constitutional “Indians” when it was convenient and expedient to do so, just as it oscillated back and forth in internal legal memorandums about the scope of its constitutional jurisdiction.

The power and persuasion of those messy realities and that inconsistent history made the constitutional decision an easy one. Although clearly recognizing the distinctiveness among Canada’s diverse Indigenous peoples – First Nations, Inuit, Métis, non-status Indians, among others – the Court rightly held that the intention and often the historic practice of s. 91(24) was to take a broad and encompassing definition of “Indian” to include all of the Indigenous peoples of Canada, despite the inadequacy and dated language of the constitutional label.

Such an interpretation accords not only with the practice on the ground, but with the uncontroversial objectives of Confederation itself – to equip the federal government with the jurisdiction necessary to expand north and west, and to deal with all of the indigenous peoples it would encounter in doing so.

The challenge for Canada is what to do with its constitutional jurisdiction now clarified. In many ways, the Daniels case stands as an exemplar of the tremendous waste of resources that can be spent in litigation as opposed to sensible and good faith negotiations. After numerous and expensive hearings, motions, and appeals, we arrive at the place we should have begun: the moment for Canada to devote its energies to using its jurisdiction to find agreement with indigenous peoples about their needs and aspirations. A Constitution, in other words, not of power over people, but of recognition, justice, and respect.

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