Understanding The Daniels Case – Earlene Bitterman

Métis Communities
BC Métis Federation Members

Re: Daniels Case Overview 

Members and Partners,

What does the Daniels v. Canada decision mean to our Métis Community? 

The Supreme Court of Appeal ruled today on a long standing court case redefining the Constitutional place of Métis and “non-status Indians” in Canada.

“Indians” under s. 91(24) of the Constitution Act, 1867 is a broad term referring to all Indigenous peoples in Canada. 

The Daniels case was initiated by the late Métis leader, Harry Daniels, who was centrally responsible for the inclusion of “Métis” in section 35 of the 1982 Constitution Act.

The Constitution act, 1867 (originally enacted as the The British North America Act, 1867, and referred to as the BNA Act), is a major part of Canada’s Constitution. The Act created a federal dominion and defines much of the operation of the Government of Canada, including its federal infrastructure, the House of Commons, the Senate, the justice system, and the taxation system. 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 our Nation.

While it took 150 years for the question to be settled, there were three declarations sought in this case:

(1) that Métis and non-status Indians are “Indians” under s. 91(24) of the Constitution Act, 1867;
(2) that the federal Crown owes a fiduciary duty to Métis and non-status Indians; and
(3) that Métis and non-status Indians have the right to be consulted and negotiated with.

As it leaves much to interpretation once the negotiations begin on a “Nation to Nation” basis, as to what it means for the Métis Nation in the future. For many, the occasion is celebratory, as the first declaration was granted, which assigns the exclusive power to the federal government. The courts would not officially make a ruling on the other two declarations sought as there are already established guidelines of ‘fiduciary duty’ and “duty to consult” Métis and non-status established by previous court challenges. (Delgamuukw v. British Columbia, MMF v. Canada, Haida Nation v. British Columbia, Tsilhqot’in v. British Columbia, and R v. Powley)

This will affect all Métis, not just those with certain Métis organizations. The Supreme Court decision appears to speak more broadly to support non-status and all Métis not just the alleged “Powley Criteria” Métis put forward by the Métis National Council. Justice Rosalie Abella wrote: “There is no need to delineate which mixed-ancestry communities are Métis and which are non-status Indians. They are all “Indians” under s. 91(24) by virtue of the fact that they are all Aboriginal peoples.”

It is most importantly defined within the Daniels case description paragraph 17, the question of mixed blood ancestry:

“There is no consensus on who is considered Métis or a non-status Indian, nor need there be. Cultural and ethnic labels do not lend themselves to neat boundaries. ‘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. Some mixed-ancestry communities identify as Métis, others as Indian: 

There is no one exclusive Métis People in Canada, any more than there is no one exclusive Indian people in Canada. The Métis of eastern Canada and northern Canada are as distinct from Red River Métis as any two peoples can be. . . . As early as 1650, a distinct Métis community developed in LeHeve [sic], Nova Scotia, separate from Acadians and Micmac Indians. All Métis are aboriginal people. All have Indian ancestry.”

Responsibility and funding for things like systems of education, health care, social services, and provincial infrastructure are generally a provincial power. There is an important exception though in section 91 (24) of the Constitution, which is that the federal government is responsible for “Indians, and Land Reserved for Indians”. The federal government must provide to “Indians” the services normally provided by the provinces (education, health care, social services,…).

The Daniels decision classifies non-Status Indians and Métis as “Indians” under section 91(24) of the Constitution. This clarifies that both groups are a constitutional responsibility of the federal government and not the provinces, although further clarification was given that this Federal responsibility over Métis and non-status did not give exclusive powers, but operation of statues enacted by both levels of government. The fact that federal jurisdiction exists in the matter does not necessarily invalidate any provincial legislation.

Our Métis and non-status ancestors have fought for generations to be recognized as true partners in confederation, creating a jurisdictional conundrum of whose constitutional responsibility it was after the declaration in Section 35.

The positive news; the Daniels decision clarifies that non-status Indians, and Métis are “Indians” under section 91 (24) of the Constitution, and further defines responsibility. It is apparent after this ruling of 9-0 there is still much to determine, this decision does not ensure that non-status and Métis will have new federal funding opportunities, until negotiations begin, or fought from the federal government. Today’s declaratory ruling does not compel the federal government to do anything, but relies upon the “honour of the Crown”, now that the legal issues have been determined by the Supreme Court to respond appropriately.

Prime Minister Justin Trudeau tweeted Thursday that the government of Canada plans to respect the Daniels decision and will work toward reconciliation – let’s hope that governments are clear on what it means to reconcile. Federal Indigenous and Northern Affairs Minister Honourable Carolyn Bennett issued the following statement:

“I thank the Supreme Court of Canada for this historic ruling on such an important matter, bringing much needed clarity to an issue that has lingered for too long. 

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. Today’s decision speaks to a renewed relationship with Métis and non-Status Indians, one the Government of Canada has already been actively pursuing. 

There is much work to be done. We are committed to working in partnership with Métis and non-Status Indians on a nation-to-nation basis, along with other partners, to ensure we are following the court’s direction in implementing this decision. 

Making progress will require real co-operation and genuine partnership in order to advance this important dialogue and map the way forward together. This is both the right thing to do and a key path to economic growth for all Canadians.” 

In conclusion, on this day we play a great fiddle tune and hold our hats up high to a Métis icon Harry “the dog” Daniels who is one of the prime instrumental forces in having the Métis enshrined in Canada’s Constitution Section 35, and today’s decision of Métis and non-status inclusion in Section 91 (24) of Canada’s Constitution.

As we enter into Canada’s 150-year anniversary celebration, we need leaders that project a ‘positive’ future, our ancestors who have fought for our rights and freedom would be proud to know they are not “Canada’s forgotten people”.

Earlene Bitterman
BC Métis Federation

[ilink url=”http://bcmetis.com/wp-content/uploads/BC-Metis-Federation-Insight-on-Daniels-Case-What-Does-It-Mean-April-15th-2016.pdf” style=”download”]Click here to read the full article in PDF format.[/ilink]

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