Supreme Court recognizes rights of Métis and non-status Indians

Posted on April 15, 2016 in Inclusion Policy Context – News/Canada – The landmark ruling gives these groups a starting point for negotiating rights, treaties, services and benefits with Ottawa.
Apr 14 2016.   By: Joanna Smith, Ottawa Bureau reporter

OTTAWA—The days of some indigenous peoples being caught in a “jurisdictional tug-of-war” are over, the Supreme Court of Canada has declared in a unanimous ruling that the federal government has constitutional responsibility for Métis and non-status Indians.

“As the curtain opens wider and wider on the history of Canada’s relationship with its indigenous peoples, inequities are increasingly revealed and remedies urgently sought,” Supreme Court Justice Rosalie Abella wrote in a short but powerfully worded 9-0 decision delivered Thursday.

“This case represents another chapter in the pursuit of reconciliation and redress in that relationship,” she wrote in Daniels v. Canada, a landmark case that Métis and non-status Indians — First Nations people who are not entitled to be registered under the Indian Act, and may or may not identify with a particular First Nation — have been fighting for since 1999.

The Supreme Court ruled that “Indians” in Sec. 91(24) of the Constitution Act of 1867 — which lists the areas over which the Canadian government has sole jurisdiction — does not just refer to First Nations with registered Indian status and Inuit peoples, but to all aboriginal peoples in Canada, including Métis and non-status Indians.

There were 213,900 non-status Indians and 451,785 Métis people in Canada counted in the 2011 Census, but they have often been relegated to what Abella described as a “jurisdictional wasteland” between provinces and the federal government when it comes to the provision of services, or holding someone to account for their absence.

The Supreme Court recognizes Sec. 91(24) does not create a duty to legislate, but including them in its scope “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,” Abella wrote.  The bottom line: “It is the federal government to whom they can turn.”

Clément Chartier, president, Métis National Council, said “Everything is in place for the Métis nation.”  “It is now up to us to seize the moment and move forward,” he said Thursday.

The Supreme Court decided against further declaring, as they had been asked to, that the federal government has both a fiduciary duty and an obligation to consult and negotiate with Métis and non-status Indians, not because it disagreed with this assertion, but because it is already so well-established in the law that it would have been redundant to say it again.

The mood was jubilant in the large crowd of indigenous leaders gathered in the foyer of the Supreme Court of Canada building in downtown Ottawa Thursday morning, many of them in traditional dress and some autographing paper copies of the decision.

Gabriel Daniels, whose late father, Harry Daniels, a prominent national Métis leader, launched the court action, said he imagined him looking down on the scene from above and dancing a jig.  But Daniels said his father would already be thinking: “What’s the next phase?”

That is because the goal of the 17-year-long quest for this landmark ruling was not simply a matter of semantics, but a starting point for people who identify as Métis and non-status Indians to negotiate with Ottawa over rights, treaties, services and benefits.

“The court recognized that our communities have been disadvantaged, underdeveloped, denied programs and services that all governments recognize are needed. I think the clear message is that those programs and services have to be provided in some way,” said Joseph Magnet, the lawyer who represented the Congress of Aboriginal Peoples in its appeal to the Supreme Court, which heard arguments last October.

The Supreme Court did not provide any instructions on how to proceed, and indigenous leaders said they are looking forward to engaging with Canada on how to go about it.

Prime Minister Justin Trudeau, who has made rebuilding the difficult relationship with indigenous peoples a priority for his new Liberal government and has committed to $8.4 billion in new spending in that area in his first budget, said he is ready to come to the table.

“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 Thursday at a news conference in London, Ont.

Ontario Aboriginal Affairs Minister David Zimmer said he would be meeting with federal Indigenous Affairs Minister Carolyn Bennett to discuss next steps, and that Attorney General Madeleine Meilleur will be doing the same with her federal counterpart, Jody Wilson-Raybould.  “(We will) see where this all leads us to,” Zimmer said in an interview.

The Conservatives urged the Liberal government to be more specific, especially when it comes to how they will pay for this vastly expanded responsibility to indigenous peoples in Canada.

“Canadians want to see their plan for accommodating the significant cost implications of this decision within their current fiscal framework,” Conservative MP and indigenous affairs critic Cathy McLeod said in a statement.
National Chief Perry Bellegarde of the Assembly of First Nations, whose organization that advocates on behalf of 634 First Nations communities in Canada received virtually everything it had asked for in the March 22 budget, said resources are always a concern.

“Let’s make sure we have the most effective and efficient utilization of those resources. Go where the most needs are and it is going to have an impact that benefits not only First Nations people but all of Canada as a country,” Bellegarde said in an interview.

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