Daniels versus Canada

The Métis Nation has long argued that the federal government has primary responsibility to deal with Métis as a distinct Aboriginal people, but successive governments in Ottawa steadfastly adhered to the line that Métis were a provincial responsibility. The provinces for the most part claimed that Ottawa had constitutional responsibility for Métis. The resulting decades-long impasse excluded Métis from federal programs supporting Aboriginal education and health, and from participation in federal land claims resolution processes.

Section 91(24) of the Constitution Act, 1867, gives the federal government jurisdiction over “Indians and Lands reserved for the Indians.” Ottawa has exercised this legislative authority for status Indians through the Indian Act, 1876, which excluded “Eskimos” and Métis. In 1939, the Supreme Court of Canada ruled that, despite the Indian Act, Eskimos were “Indians” for the purposes of section 91(24) and therefore a federal responsibility.

During the lead-up to the Charlottetown Accord in 1992, Prime Minister Brian Mulroney, the premiers of the five westernmost provinces and the Métis Nation agreed in principle to a Métis Nation Accord. This Accord would commit the parties to negotiate Métis self-government agreements. It was to be accompanied by an amendment to s.91(24) making explicit the federal jurisdiction over all Aboriginal peoples. But this Accord did not reach fruition as the Charlottetown package of constitutional amendments was defeated in a national referendum.

In 1999, a well-known Métis leader named Harry Daniels launched a court case against Canada’s federal government seeking three declarations regarding the legal limbo that Métis people had been living under. Daniels argued that Métis fit within s. 91(24) of the Constitution Act, 1867, that Ottawa had a fiduciary duty to Métis as Aboriginal people, and that Métis had the right to be consulted and negotiated with, in good faith, by the federal government, with negotiation on a collective basis through representatives of their choice, respecting all their rights, interests and needs as Aboriginal peoples. The case did not proceed to court until 2011; by then Daniels had been dead for years and his son Gabriel had been added as a plaintiff.

The court found in favour of Daniels regarding the first declaration. An important finding of the court was that the term “Indian” used in s.91(24) is broader than “Indian” used in the Indian Act and, in effect, is synonymous with all three Aboriginal peoples – Indians, Inuit and Métis. However, the trial judge adopted a broad definition of Métis encompassing all people of partial Aboriginal ancestry rather than those of Métis descent who could prove ancestral connection to historical Métis communities. The federal government appealed the decision in February 2013. It went to the Federal Court of Appeal which in April 2014 declared that Métis were included in s.91(24), but only those identified in earlier decisions of the Supreme Court of Canada, in cases such as Powley and Manitoba Métis Federation v. Canada, that is, those from historically rooted Métis communities.

Métis National Council President Clément Chartier applauded the decision. “On behalf of the Métis Nation, I applaud today’s decision of the Federal Court of Appeal in the Daniels case. It reinforces our long- standing position that the federal government has constitutional responsibility to deal with the Métis.” Ottawa’s non-recognition of Métis for jurisdiction purposes never made sense. Logic dictates that it should be Canada’s national government that has a special relationship with the Métis, one of the three Aboriginal peoples.

Chartier added: “The resolution of constitutional responsibility has the potential to bring clarity to the respective responsibilities of the different levels of government. The recognition of Métis as “Indians” under section 91(24) should accord a further level of respect and reconciliation by removing the constitutional uncertainty surrounding the Métis. We as Métis are a practical people who seek practical solutions to make the Canadian federation work for us. As residents and taxpayers of the provinces, we always accepted that the provinces have an important role to play with us. At the same time, we always believed that Ottawa has primary responsibility to deal with us and must show leadership. The decision today buttresses this belief. The federal government can no longer shrug its shoulders and assume that Métis matters will be dealt with by others, all the while knowing this is not being done.”

The case has now been appealed to the Supreme Court of Canada, which will hear arguments beginning in October. A decision is expected in 2016.

Naturally, many participants were disappointed that the Government of Canada, rather than use this judgment as an opportunity to open negotiations, or at least discussions, with the Métis Nation, chose the continued adversarial route. “This is the last of the government road blocks,” says Jason Madden, a lawyer specializing in Aboriginal issues with Pape Salter Teillet, referring to the Supreme Court decisions on the Powley and Manitoba Métis Federation cases, which previously established other rights for Métis.“It is sad that instead of embracing and implementing opportunities for reconciliation, 20 years have been lost and millions of dollars spent.” Although negotiation would have been preferred, the advantage of the case going to the top court is that recognition is then unassailably proven in law.

At long last, there is hope that the Métis will no longer be kicked back and forth as a political football between federal and provincial governments, and that space will be created for Métis government to be empowered and financed to fulfill its responsibilities to its people.

There are hopeful signs. In June, the Honourable Bernard Valcourt, Minister of Aboriginal Affairs and Northern Development appointment of Tom Isaac, head of Osler’s Aboriginal Law Group, as the Ministerial Special Representative to lead engagement with the Métis. Isaac is to meet with the Métis National Council, its Governing Members, the Métis Settlements General Council, and the provinces to map out a process for dialogue on Section 35 Métis rights. This implies that there will be dialogue. Perhaps, reconciliation is finally within reach.