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Supreme Court Métis ruling perceived as ‘game changer’

Thursday, April 28, 2016 @ 8:00 PM | By Cristin Schmitz

The Supreme Court’s groundbreaking ruling that Ottawa has constitutional responsibility for the Métis and non-status Indians is expected to bring gains in education, health, social assistance, economic development and self-governance for the victorious plaintiffs, but if the federal government drags its heels on negotiations, it will be sued, lawyers warn.

Much must be negotiated or litigated in the wake of the top court’s 9-0 affirmation April 14 that Métis and non-status Indians are “Indians” within federal jurisdiction under s. 91(24) of the Constitution Act 1867, and that the federal Crown owes them a fiduciary duty, as well as a “context-specific duty to negotiate when Aboriginal rights are engaged”: Daniels v. Canada (Indian Affairs and Northern Development) [2016] SCC 12.

However, while future disputes are anticipated over such issues as who qualifies as Métis and as a non-status Indian, and between the federal and provincial governments over their respective funding obligations, the Supreme Court has laid the constitutional foundation for a more equal relationship between Ottawa and Métis and non-status Indians going forward, counsel say.

“It’s been recognized that we are a full partner in that relationship…and that before anything is done that impacts on that relationship or our rights, that we have to be consulted and engaged —we’ve had problems that way,” remarked University of Ottawa law professor Joseph Magnet, who with Andrew Lokan and Lindsay Scott of Toronto’s Paliare Roland, for the past 15 years successfully fought the case up from trial on behalf of the appellant Congress of Aboriginal Peoples and four individuals, including Chief Harry Daniels (now deceased).

The court restored Federal Court Justice Michael Phelan’s 2013 declaration that “Indians” under s. 91(24), is a broad term referring to all indigenous peoples in Canada, including 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,” Justice Rosalie Abella wrote. The respective denials of responsibility by federal and provincial governments for Métis and non-status Indians “results in these indigenous communities being in a jurisdictional wasteland with significant and obvious disadvantaging consequences.”

Her judgment clearly states that “programs and services are not a matter of grace, that they’re a constitutional obligation — they’re not ‘noblesse oblige,’ ” a beaming Magnet told The Lawyers Weekly minutes after the ruling was greeted by cheers, fiddle music and dancing among the Métis and non-status Indians thronging the Supreme Court’s Grand Entrance Hall.

“The federal government will have to engage with Métis and non-status Indians on the effective recognition of their rights, land claims and the criteria for federal Aboriginal programming,” Lokan added. “If the government does not engage constructively, and in a timely manner, it risks having decisions imposed upon it by the courts. Federal government policies and programs with exclusionary criteria may now be more at risk of (equality rights) challenges under s.15 of the Charter.”

Ottawa can therefore no longer maintain its decades-long refusal to engage or negotiate with Métis and non-status Indians, nor continue to decline funding for the necessary services and programs for Métis and non-status Indians that have so far been restricted to status Indians, said Jason Madden, a Métis lawyer who represents the intervener Métis National Council.

“This is a game changer,” Madden said, clutching the historic judgment. “They say that s. 91(24) is about [Ottawa’s] relationship with all of Canada’s Aboriginal peoples, not just some. That’s a huge win for Métis. They say Parliament has a responsibility to deal with these issues; [that Métis] have been left with — in the language of the court — ‘a jurisdictional wasteland,’ and that needs to end.”

The judgment has the potential to lead to future additional spending in the billions of dollars. Self-reported Métis and “non-status” Indians (totalling approximately 665,695 people) outnumber Canada’s 637,660 “status” Indians, according to Statistics Canada.

(Stats Can’s 2011 household survey says there are 1.4 million Canadians claiming Aboriginal identity, among them 637,660 First Nations people registered under the Indian Act (so-called status Indians); 213,900 First Nations people who are not registered (non-status Indians); 451,795 Métis; and 59,445 Inuit.)

In Madden’s view, the ruling obliges the federal government to “immediately” review and re-evaluate all of its existing exclusionary policies and approaches, including those dealing with health benefits, education and economic development, to see whether they comply with Ottawa’s constitutional responsibilities, as recognized in Daniels. “The question is, if you have this relationship to all, why are you only providing to a few?” he asked. “Now the issue is: Does Canada get in front of the bus and sit down and negotiate these issues, or does it wait for those claims to be filed all across western Canada, providing uncertainty and frustration?”

“I can tell you…if the refusal to negotiate continues, we will turn to the courts,” Madden warned. “The court has essentially given us a whole new tool of saying…‘If you have claims, if you have rights, and there is still no place for you to talk to the federal government with it, go to court, and we’ll issue declarations forcing the government’s hand.’…I think the path to reconciliation with Métis looks like modern-day land claims agreements with the Métis. It includes sitting down and negotiating agreements that deal with land, that deal with self -government, that deal with [hunting, fishing and other] rights, that deal with programs and services. That’s what they’ve done with the Inuit peoples. That’s what they have done with First Nations. And now it needs to happen with Métis.”

Indigenous law practitioner Robert Janes of Victoria’s JFK Law Corporation predicted Daniels will impact treaty or self-government negotiations with First Nations, as well as existing agreements.

Ottawa “pretty consistently” takes the position that non-status Aboriginal people have to be included in agreements, but it generally restricts funding for programs and services to status Indians, leaving the bands or provinces to fund non-status Indians, Janes explained. “That justification has been significantly undermined, and I expect we’ll immediately see a great deal of pressure at the negotiation tables to take the non-status people into account and that will affect two things. One is the fiscal funding, so the program funding,” he said.

Secondly the judgment will affect the land and cash parts of treaties, which are, in many cases, geared to the number of status Indians, but now First Nations negotiators will seek to include non-status Indians.

There is also likely to be considerable wrangling as between the federal and provincial governments over who has to pay what, he said.

Janes said he “fully expects” to see non-status Indians and Métis launch Charter equality rights challenges “in the near future” — to federal funding policies or the definition of status Indian under the Indian Act. “It will start off as a negotiation issue, but if there’s not progress made on this it will become a Charter issue very quickly,” Janes predicted, “essentially arguing there is no principled reason to distinguish between status and non-status people in these bands for funding purposes [because they’re all] federal responsibility.”

University of Ottawa law professor Sébastien Grammond agreed litigation is likely, including over equality between indigenous groups. “There are two big issues. Number one is: what services will be negotiated for these people? And number two is: Who are these people? And then that’s an issue of recognition, and defining a form of status, and on that front I think we will have to go back to the recommendation of the Royal Commission (on Aboriginal Peoples) back in 1996 that Ottawa should put in place a process for the assessment of claims to indigenous identity, and the recognition of new indigenous groups, and then these groups would have to set up a process to identify their members. So this is the task that lies ahead.”

In a statement, Indigenous and Northern Affairs Minister Carolyn Bennett said, “the government of Canada welcomes and respects this decision, which will guide our work with indigenous peoples to advance real reconciliation and renew the relationship, based on recognition of rights, respect and partnership.”

A statement from her department also points out that the top court held that determining whether particular individuals or communities are non-status Indians or Métis, and therefore “Indians” under s. 91(24), is a fact-driven question to be decided on a case-by-case basis.

“Not all Canadians who self-identify as Métis” are rights-holders under s. 35 of the Constitution, the government notes. “There is a distinction between Métis self-identification and Métis Aboriginal rights. The 2003 Supreme Court of Canada decision in R. v. Powley outlines the test to prove Métis Aboriginal rights, and Métis self-identification is only one component of a broader objectively verifiable process that is required in order to meet the Powley test.”

Moreover, the Daniels ruling does not impact on Métis and non-status Indian eligibility for programs and services currently targeted to status Indians,” the department asserts.

“For myself, and people like me that’s been around and fighting this fight, and gone on with this struggle for years, it’s a new turn in the journey,” Dwight Dorey, national chief of the Congress of Aboriginal Peoples told The Lawyers Weekly when the judgment was handed down. “For years we, as Métis and non-status people have been looking at the horizon and all around the horizon wondering which path we should go on. Now we know which path we will go on, and it’s straight, and we know what to do.”

He said he expects Ottawa to get moving on serious discussions with his group.