Daniels Case Update

Many of the Métis people of Canada remain confused about the Daniels Case as it relates to the impacts on Métis people and our constitutional rights.

This week the BC Métis Federation is pleased to provide an update written by George and Terry Goulet. The article provides a current snapshot of the case and where it stands today as an appeal has been filed and various intervenors are making applications.

By George & Terry Goulet

Significance of the Case: The Daniels Case is highly significant with respect to Métis and non-status Indians (MNSI). In this article we are concentrating in particular on aspects relating to the Métis. As far as the Métis are concerned, the prime issue in the Daniels Case is to determine whether the Métis are “Indians ” within the meaning of the expression “Indians and Lands reserved for Indians” in section 91(24) of the Constitution Act, 1867 (Canada).

Both the Federal Government and the Provincial Governments have over many years played “political football buck-passing” between themselves with respect to who was legally responsible for jurisdiction with respect to the Métis, each taking the view that the other was responsible. This political and policy wrangling deprived the Métis of government programs, services and intangible benefits resulting in discrimination and marginalization of the Métis.

If the final Court decision is that the Métis are “Indians” under section 91(24) this jurisdictional vacuum will be settled. The Federal Government will be responsible for the Métis thereunder. The Supreme Court has confirmed in the 2013 Manitoba Métis Federation Case that the Métis are in a fiduciary relationship with the Crown.

If the s. 91(24) declaration in favor of the Métis is confirmed, this would effectively require the Federal Government to act in good faith towards the Métis with respect to negotiations relating to relevant matters. These would include programs similar to those which the Government has for the First Nations and Inuit Peoples such as education, health, housing, employment, heritage and cultural activities and other appropriate benefits and rights of the Métis people.

Background of the Case: The Daniels Case has been in the Court system since 1999. It was filed with the Federal Court of Canada by, among others, the great Métis activist Harry Daniels (who died in 2004), and the Congress of Aboriginal Peoples (CAP) of which he was President. During this time the Federal Government has brought various proceedings in order to stop this action proceeding without success. Over the years significant time and millions and millions of dollars of public funds have been spent on this Case. These funds could have been redirected to provide programs and services to MNSI.

The Plaintiffs in the Daniels Case asked the Court to issue three declarations: (a) That MNSI are “Indians” under s. 91(24) of the Constitution Act, 1867 (Canada). (b) The Federal Government owes a fiduciary duty to MNSI. (c) MNSI have the right to be consulted and negotiated with, in good faith, by the federal Government.

Federal Court of Canada Decision: In its decision of January 8, 2013 the Federal Court of Canada gave the following ruling: (a) A declaration that Métis and non-status Indians are “Indians” within the meaning of Constitution Act, 1867, s. 91(24) will be granted. (b) The Court was not prepared to grant a declaration with respect to fiduciary duty because there were no specific facts as to what duty had been breached. (c) The Court will not grant the declaration for negotiation and consultation without reference to a specific matter.

In the section “Problem of Definition” Judge Phelan stated with respect to the Powley Case “In identifying who is a Métis, the Court did not set out a rigid test or explore the outer limits of the definition.” He also stated “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.”

Federal Court of Canada Appeal Decision: The Daniels Case was appealed by the Federal Government to the Federal Court of Appeal in order to have the Lower Court’s declaration set aside. In its decision of April 17, 2014 the Court of Appeal stated that the Federal Government did not challenge the Lower Court’s detailed findings of fact and concluded that the Lower Court’s “declaration, limited to the Métis, is founded in fact and law”.

The Court also concluded “I would allow the appeal [by the Federal Government] in part by deleting reference in the declaration to non-status Indians. I would restate the declaration as follows: The Court declares that the Métis are included as ‘Indians’ within the meaning of section 91 (24) of the Constitution Act, 1867.” The Appeal Court found no errors in the Lower Court’s decision to refuse to grant declarations with respect to fiduciary duty and negotiation and consultation.

CAP’s Application for Leave to Appeal to the Supreme Court of Canada: On June 16, 2014 CAP and the other plaintiffs filed an Application for Leave to Appeal the Court of Appeal Judgment in the Daniels Case with the Supreme Court of Canada. This application seeks leave to appeal: (a) the deletion of “non-status Indians” from a declaration as to the Federal Government’s jurisdiction under s. 91(24) of the Constitution Act, 1867; and (b) the refusal to grant to Métis and non-status Indians the declarations with respect to fiduciary duty owed to them, and the right to be consulted and negotiated with (in good faith) by the Federal Government.

In its argument, CAP indicates its concern that the Court of Appeal may have adopted a more restrictive approach to the meaning of Métis and may have excluded many Métis from the scope of section 91 (24). The Court of Appeal stated that the Supreme Court`s (restrictive) criteria of Métis identity in the Powley Case (relating to section 35 harvesting rights under the Constitution Act, 1982) inform the understanding of who the Métis people are for the purposes of Section 91(24) of the 1867 Constitution.

However the Court of Appeal further stated that it was not necessary to exhaustively define Métis. It is sufficient that the Court not define Métis in a manner that is contradictory with history or the jurisprudence of the Supreme Court (in cases such as Powley, Cunningham or Manitoba Métis Federation). It should be noted that if these comments of the Court of Appeal can be interpreted as adopting a restrictive description of Métis, they are not binding on the Supreme Court of Canada.

At present Indians and Inuit are included within section 91(24) of the Constitution Act 1982. It would be anomalous, and perhaps discriminatory under section 15 of the Canadian Charter of Rights and Freedoms, if Canada’s other constitutionally recognized Aboriginal people, the Métis are not included.

Federal Government’s Conditional Application to Cross-Appeal to the Supreme Court of Canada: Subsequent to CAP filing its Application, the Government of Canada filed a Conditional Application for Leave to Cross-Appeal on August 11, 2014. In the Government’s Response, it requested leave to cross-appeal on the issue of whether the Métis are “Indians” within the meaning of section 91(24) of the Constitution Act, 1867.

The Cross-Appeal requested a decision from the Supreme Court with respect to certain Constitutional and Supreme Court matters relating to Métis. For example it argues that the Lower Courts’ decisions (i) cannot be reconciled with prior Supreme Court of Canada decisions; (ii) depart from principles of constitutional interpretation; (iii) that the declaration applies to all Métis peoples, not simply the parties; and (iv) creates uncertainty concerning certain provincial laws.

In its Memorandum of Argument, the Federal Government stated in part that the Lower Courts gave almost no weight to the meaning of the term “Indians” as it would have been understood by the framers of the Constitution in 1867, and that Métis were not considered “Indians” in 1867.

Interveners: A number of interveners, including the Métis National Council, have applied to become involved in the Supreme Court of Canada Case.

What Happens Next: The Supreme Court of Canada will now have to make a decision as to whether or not to grant Leave to Appeal to CAP and the other plaintiffs and Leave to Cross-Appeal to the Federal Government. In our opinion it is virtually certain that the Supreme Court will grant both of these Leaves on the basis that The Daniels Case involves Constitutional matters of national public importance.

If the Leaves to Appeal are granted, the Daniels Case will then proceed to a Hearing before the Supreme Court of Canada. The Decision of the Supreme Court would not be given for a number of months after the Hearing.

Legacy of Harry Daniels: There are only two men in the history of the Métis People who were the prime instrumental forces in having the Métis enshrined in Canada’s Constitution – Louis Riel in section 31 of the 1870 Manitoba Act and Harry Daniels in section 35 of the Constitution Act, 1982. If the Daniels Decision of April 17, 2014 by the Federal Court of Appeal is upheld on further appeal to the Supreme Court of Canada, inclusion of the Métis in section 91 (24) of the Constitution Act, 1867 can be added as an additional achievement by Harry Daniels.


August 2014
© George and Terry Goulet

[ilink url=”http://bcmetis.com/wp-content/uploads/Daniels.SCC_.Update-George-and-Terry-Goulet-August-2014.pdf” style=”download”]Click here to download the article as a PDF.[/ilink]

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