Supreme Court gives rights to Métis, non-status Indians under Canada’s 1867 Constitution

Posted on in Equality Policy Context

TheGlobeandMail.com – News/National
Apr. 14, 2016.   Sean Fine – Justice Writer

The Métis are “Indians” within the meaning of Canada’s 1867 Constitution, the Supreme Court ruled unanimously Thursday, setting the stage for possible negotiations over land and government education and health programs.

And non-status Indians, those of aboriginal ancestry who for various reasons have not been permitted to register for federal benefits, are also within the definition, the court said.

“Both federal and provincial governments have, alternately, denied having legislative authority over non-status Indians and Métis,” Justice Rosalie Abella wrote for the court. “This results in these Indigenous communities being in a jurisdictional wasteland with significant and obvious disadvantaging consequences. While finding Métis and non-status Indians to be “Indians” under s. 91(24) [of the 1867 Constitution] does not create a duty to legislate, it has the undeniably salutary benefit of ending a jurisdictional tug-of-war.”

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

The ruling hands them and non-status Indians a victory that may prove at least as important as the Supreme Court ruling in the Tsilhqot’in case two years ago will be for some First Nations communities. In that case, the court ruled that native Canadians still own their ancestral lands, unless they signed away their ownership in treaties with government. The current case involving the Métis may prove to have a larger impact on the lives of indigenous people.

The ruling does not mean 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 700,000 non-status Indians. The Trudeau government has stressed that it respects the Supreme Court, and the court’s ruling suggests that the Métis had been wrongly denied their place in Canada.

“They are some of the most disadvantaged communities,” lawyer Jason Madden, who represented the Métis National Council, an intervener in the case, said in an interview before the ruling. “The Indian Act was not great by any stretch of the imagination, but at least there were some supports there. You see these communities struggle to find any government to deal with. The game that has been afoot almost since Confederation is ‘not this wicket, go see that wicket. You go to the other wicket and the door is closed, or they say, ‘Out for lunch, come back another day.’”

In 2003, the Supreme Court affirmed the Metis are a distinct aboriginal group with a right to hunt. In 2013, the Supreme Court said they have outstanding claims that are still at issue. The current case was about whether federal responsibility for “Indians, and lands reserved for lands,” includes the Metis.

The case was launched by Metis leader Harry Daniels, in 1999. He has since died, and his son Gabriel signed on to the case. The federal government argued that that 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.

“An abstract declaration . . . will not provide the solutions the appellants appear to seek, and would risk creating unforeseen consequences that would impede the ability of both orders of government to work together to achieve reconciliation,” the federal government said in a legal filing at the Supreme Court.

The ruling has thrust a challenge squarely before the federal government. The federal government has promised to improve the living conditions of First Nations communities, and has set aside an additional $8.4-billion over the next five years. Addressing the additional claims of Métis and non-status Indians could prove expensive.

“They can’t use this one last excuse – not our jurisdiction – to avoid these claims and rights,” Mr. Madden said.

< http://www.theglobeandmail.com/news/national/metis-ruling/article29628869/ >

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