Open letter to all Métis people in Canada, The BC Métis Federation writes today to Métis people throughout BC in response to the overwhelming calls, inquiries, and questions from across British Columbia and Canada about the recent ruling by a Federal Court that affects Métis and Non-Status Indians. This correspondence is therefore provided for further insight and comment about the immediate effects of this ruling and considerations for the future.

This letter has been drafted from our continuing review of the case and will be subject to much debate. BC Métis Federation recognizes various views and interpretations will be stated and we welcome future discussions. The purpose of the correspondence was to provide our initial insight and understandings for the BC Métis Federation members, affiliated Métis communities, and partner agencies.

Given the historic significance this letter will address the following questions:

1. What happened?
2. Does this mean there are no more Métis?
3. Does this mean “Indian” benefits will become available soon?
4. How were the Métis defined in this case?
5. Conclusions

What happened?

The Federal Court ruled on Tuesday, January 8th in a substantive case filed by the late Harry Daniels, Gabriel Daniels, Leah Gardiner, Terry Joudrey, and the Congress of Aboriginal Peoples (CAP) in 1999 against the Majesty the Queen, as represented by the Minister of Indian Affairs and Northern Development and the Attorney General of Canada.

The case entitled (Daniels v. Canada) was seeking recognition of three basic principles, in that:

• Métis and Non-Status Indians are Indians under subsection 91(24) of the Constitution Act, 1867,
• The Crown owes to Métis and Non-Status Indians a fiduciary duty as Aboriginal peoples,
• Canada must negotiate and consult with the Métis and Non-Status Indians, on a collective basis through representatives of their choice, with respect to their rights, interests and needs as Aboriginal peoples.

The Federal Court agreed that Métis and Non Status Indians are defined under the term “Indian” for the purposes of Section 91(24) [para 619]. The Federal Court did not support the fiduciary duty claim at this time. However, given the declaration of right in respect of section 91(24) the court stated that one would expect that the Federal Government would act in accordance with whatever duty arises in respect of any specific matter touching on the non-clarified fiduciary relationship [para 609]. Finally the Federal Court did not grant the declaration for negotiation and consultation. However once again the court stated that hopefully the resolution of the constitutional issue of section 91(24) will facilitate resolution on other matters [para 617].

The outcome of these three specific questions is critical to the future for all Métis and non Status Indians and the Federal Court was not prepared to essentially fully address all three aspects, specially the fiduciary duty and negotiations. However the significance now of the ruling that Métis and Non Status Indians falling under 91(24) will in essence force new processes that will ultimately further define such matters in our view.

Does this mean there is no more Métis?

BC Métis Federation has been inundated with calls and concerns expressed by Métis people that this decision somehow means they are no longer Métis. The answer “No” this does not in any way.

In 1939 the Supreme Court of Canada ruled that “Eskimos” were Indians under Section 91 (24) of the 1867 Canadian Constitution. It appears to the BC Métis Federation that a prime approach should be to demand from the Federal Government the same rights and treatment for the Métis that the Inuit presently have under Section 91(24). We presume this would include benefits related to health, education, hunting, fishing, trapping and gathering on public land, and other appropriate negotiations and benefits. This would also be consistent with the right of equality called for by section 15 of the Canadian Charter of Rights and Freedoms.

Although some have expressed concern that the Métis might lose their separate identity as a result of this decision, in the case of the Inuit (Eskimos), they certainly have not lost their separate identity as a result of the 1939 Supreme Court Case and consequently there is no reason to think that the Métis will lose their separate identity since the decision relates only to Section 91(24) of the 1867 Canadian Constitution. In addition in the 2003 Ernie Blais Case (decided the same day as Powley) the Supreme Court of Canada for purposes of the National Resources Transfer Act ruled that the Métis were not Indians.

Does this mean “Indian” benefits will become available soon?

The BC Métis Federation strongly advises all Métis people that this is yet to be determined. This was a Federal Court ruling only and will likely be appealed within the 30 days time frame by the Federal Government to the Supreme Court of Canada. If appealed the Federal Government would delay implementation and await a Supreme Court ruling which may take another 3-5 years. However one must not take this decision lightly and the Federal Court ruling clearly will force the Federal Government to respond in the future.

How were the Métis defined in this case?

One of the most substantive points that Métis people should be aware of is how the Federal Court agreed that the definition of Métis is across Canada and broad in context as described in paragraphs 126 – 130 as follows:

[126] However, in Powley, above, the Supreme Court was dealing with a Métis from Sault St. Marie. In the present case the geographic range of the question of whether Métis are Indians under s 91(24) is country-wide. The evidence shows that the term Métis was and is used well outside of Western Canada. Cases involving agreements or provincial laws are not necessarily determinative of the issue. [127] In Powley, above, the Supreme Court did not attempt to define the outer limits of “Métis” but it did provide a method for finding who a Métis is for purposes of s 35. Aside from the sine qua non of mixed aboriginal and non-aboriginal ancestry, a Métis is a person who (a) has some ancestral family connection (not necessarily genetic); (b) identifies himself or herself as Métis; and (c) is accepted by the Métis community or a locally organized community branch, chapter or council of a Métis association or organization with which that person wishes to be associated. [128] As Powley, above, was a question of collective right to hunt, the last point was critical. However, there may be individual circumstances where there is no such association, council or organization but the individual participates in Métis cultural events or activities which show objectively how that person identifies himself or herself subjectively as a Métis. [129] As the further historical evidence will show, there was no “one size/description fits all” when it comes to examining Métis on a national scale. Page: 40 [130] However, it is those persons described in paragraph 117 who are the Métis for purposes of the declaration which the Plaintiffs seek.

The Federal Court has applied a broad interpretation that Métis people eligible under section 91(24) also include a provision for self identification and group acceptance as mentioned in paragraph 117.

The BC Métis Federation stresses the significance of these Federal Court findings in light of the other Métis provincial group known as the Métis Nation British Columbia (MNBC) and how they define who is or is not Métis. MNBC continues to assert they have the only membership system that can legitimately validate who is or who is not Métis. According to this Federal Court decision MNBC has one way, but clearly not the only way to prove Métis identification before the Federal Court for section 91(24) rights. In fact Métis people are well aware of the how MNBC only provides services for their MNBC citizenship card holders and chartered communities. There are many Métis people who do not wish to be associated with MNBC and BC Métis Federation believes MNBC policies, program implementation and access to publicly funded services are inconsistent with this latest Federal Court ruling. In fact, all MNBC citizenship applicants who have been denied membership for various reasons may have legitimate claims of discrimination with the Human Rights Tribunal against this organization which is essentially a club, not protected nor defined in law by any Provincial or Federal legislation for their membership despite their ongoing claims.

The Federal Court has accepted that Métis people eligible for recognition under the Constitution section 91(24) is a more broad application from across the country and as Métis communities and organizations we all need to consider how this affects your membership systems.

Conclusion

There are no immediate expectations of changes to access for new programs and services from the Federal Government for Métis people in BC or the rest of Canada. However, clearly the case moves the rights for all Métis and Non-Status Indians forward and the affects to current Federal and Provincial policies and programs will be substantive in the future.

This ruling also emphasizes to the BC Métis Federation that the approach that the Metis should pursue in the future should be primarily based on Constitutional Law and aggressive negotiations with the Federal Government. In addition a complete review of existing Provincial and Federal Government program delivery and policy consultation should be examined carefully. Expensive court proceedings should be avoided if possible but Métis people across Canada also need a new transformational relationship with the Federal Government and courts continue to support or rights.

This landmark court ruling by the Federal Court affirms the belief that the late Harry Daniels and the Congress of Aboriginal Peoples had; that Métis and Non-Status are Indians under the Constitution. With this historic ruling, this is a significant time in history for all Métis and Non-Status Indians. It is a culmination of a lifetime of work by Harry Daniels and his search for social justice for Métis and Non-Status Indian people of Canada.

BC Métis Federation acknowledges Harry Daniels, Gabriel Daniels, Leah Gardiner, Terry Joudrey, and the Congress of Aboriginal Peoples (CAP) for their commitment to seeing this case through. This significance of this decision cannot be understated and future implications are substantive. BC Métis Federation will continue to review and update our members once the Federal Government reacts.

Thank you,
Keith Henry
President

Enclosure Daniels Case Decision

[ilink url=”/wp-content/uploads/BCMF-Letter-to-Metis-People-January-11th-2013-Daniels-Case.pdf” style=”download”]Click here to download this in PDF format.[/ilink]
[ilink url=”/wp-content/uploads/Daniels-Decision-January-2013.pdf” style=”download”]Daniels Decision January 2013[/ilink]

Harry Daniels Tribute – The Life And Times of Harry Daniels -Sept 16, 1940 – Sept 6, 2004

The Congress of Aboriginal People (CAP)