Daniels: A New Threshold? – Joe Desjarlais

BC Métis Federation Secretary Joe Desjarlais reflects on the recent Supreme Court Daniels ruling.

Canadians woke up on April 14 to the news that The Supreme Court of Canada granted a declaration that Métis and non-status Indians are “Indians” under s. 91(24) of the Constitution.

Many will indeed celebrate this form of recognition on this historic day as a legitimate victory as a step in the hunt for justice.

For too long, as lawyer Jason Madden once opined, Métis have been treated as proverbial political footballs, falling between the jurisdictional cracks of this country. There was no one to turn, for, in the words of the high court, “policy redress.”

The ruling opened up the question of Métis identity, and appears to support the “many ways of being Métis.”

It appears that restricted definitions and traditional historical definitions that have been endorsed and encouraged by certain Métis groups and governments in Canada to maintain status quo relations are challenged by this ruling, and it is unlikely that current relational restrictive models will hold or remain valid:

In the words of the court, “Métis can refer to the historic Métis community in Manitoba’s Red River Settlement or it can be used as a general term for anyone with mixed European and Aboriginal heritage.”

There will be much speculation by Métis across this country how this ruling will translate to access to increased programs and services like health care or schooling, exercising rights to hunt and fish, or whether Métis will now be included in a seat at tables to reconcile Métis interests.

Some will look to characterize this ruling in terms of fiscal liability if benefits and claims are to be realized. Fear of scarcity often dominates the public imagination of Canadians, as well as First Nations. As example some years back, popular First Nations author Calvin Helin referred to “Worst case Fiscal Impact,” citing among other factors, the “Métis factor,” expressing apparent fears that if Métis rights develop further in law, “this could add billions to existing federal government spending.” Then on the eve of the SCC ruling, Sean Fine in The Globe and Mail ominously referred to “untold costs and complications to Ottawa.”

The more discriminating will perhaps recognize by this ruling that as collectives the Métis peoples in Canada have a direct Constitutional relationship with the Crown. By extending the legal definition of Métis beyond the Powley Test and by defining Métis as s.91 Indians, Daniels brings Métis communities into conversation with broader legal discussions on the nation-to-nation relationship as defined in the historical treaty process.

Not all Métis appeared jubilant. Métis Academic Adam Gaudry responded dryly on twitter, “And with the tiny opening the SCC provided in terms of “non-RR Métis,” watch for an explosion in pop-up Métis in the East hoping to cash in.” Gaudry, an academic with research interests in Red River history, also states, “What Daniels leaves unexplained is how the Métis Nation came to fall under Canadian jurisdiction in the first place, federal or provincial.”

Speaking to Gaudry’s point, amidst the jubilation of victory, Métis people currently find themselves in a state of limbo. Are they landless-rights-bearing Canadians with special status or are they a people(s) moving towards becoming self-governing nations/communities?

Nobody appears to be asking this question. Not the Métis National Council and affiliates. The Métis Federation of Canada and The Congress of Aboriginal peoples have been silent.

In addition, nobody is asking what role these organizations will play. Will they “regulate” or will they facilitate? The practical reality is that by setting themselves up as a ‘protection’ or ‘guarantor’ of Métis ‘individual rights’ with national registries they compromise the movement towards self-determining Métis nations and make their organizations subject to government regulation.

What is clear is that this ruling makes it even more urgent that Métis and non-status communities negotiate the concept of mutual recognition for self-determined indigenous peoples. The courts seem to have indicated that days of ‘splitting the pot’ are over and a new possibility for reconciliation has been opened up if indigenous nations are willing to coexist and establish meaningful partnerships that can be to the mutual benefit of everyone.

At this important time the BC Métis Federation calls upon other Métis organizations to join other forward looking Métis leaders across Canada who are speaking in the language of partnership (nation to nation) so that we can get on with the more important work of getting governments, corporations and courts to begin thinking in those terms and speaking in that language as well.

In the spirit of “many ways of being Métis”, BC Métis Federation seeks to establish mutually-recognized relationships with other Métis organizations in order to support its mandate to facilitate and assist its member organizations/community/nations in their movement towards self-determination.

We desire to create a shared-future with Métis political organizations that are open to creating policies that translate competing interests into cooperative action in order to open up possibilities and opportunities for all Métis Nations in Canada.

At its best, the Daniels ruling provides the possibility to “consider” Métis communities as self-determined and self-governing nations with a unique historical connection to the Crown and First Nations. This also means a future in Canada where Métis are part of the national imagination that guides the actions of the Canadian government, its courts of law, and its society.

If people take the opportunity to open up the national conversation to a broader narrative, this ruling could set a new threshold for Métis-Canadian relations for the next 150 years.

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