Canada’s 600,000 Metis and Non-Status Indians won a major victory from the Supreme Court of Canada. Today the Court rendered its decision in Daniels v. Canada (Indian Affairs and Northern Development) finding that Metis and Non-Status Indians fall under Federal legislative authority because they are “Indians” under the Constitution Act, 1867 . Metis and Non-Status Indians will no longer be bounced back and forth between the Federal and provincial governments. The provinces have always maintained that Canada had jurisdiction over Metis and Non-Status Indians while the Federal government denied it. While it took 149 years for the question to be settled, it is now clear that Canada has responsibility for Metis and Non-Status Indians.

The decision paves the way for progress on the recognition of Constitutional rights and the provision of adequate services to some of Canada’s most disadvantaged citizens. However, the Supreme Court took care to point out that just because Canada can pass legislation dealing with Metis and Non-Status Indians does not mean that it has to.

In earlier cases the Supreme Court of Canada had held that Canada owes a fiduciary duty to Canada’s Indigenous peoples including the Metis. Now that the jurisdictional question has been settled the Metis can force Canada to the table.

As for Non-Status Indians, in its arguments before the Supreme Court of Canada the Federal government finally admitted that Non-Status Indians were Indians within the meaning of the Constitution Act, 1867. Now that Canada has admitted responsibility and the Supreme Court has confirmed it, Non-Status Indians are now in a stronger position as well.

For the purpose of section 91(24) the Supreme Court of Canada did not find it useful or necessary to lay down a test for determining whether a person is Metis or a Non-Status Indian. This will no doubt be left to future court decisions. In the trial decision which was upheld by the Supreme Court of Canada, Justice Phelan rejected the use of “blood lines” as a criteria for determining membership in a Metis or Non-Status Indian community in favour of self-identification:

“It is clear that the non-status Indians description is based on substantial connection, both subjectively and objectively, to Indian ancestry. Degrees of “blood purity” have generally disappeared as a criterion; as it must in a modern setting. Racial or blood purity laws have a discordance in Canada reflective of other places and times when such blood criterion lead to horrific events (Germany 1933-1945 and South Africa’s apartheid as examples). These are but two examples of why Canadian law does not emphasize this blood/racial purity concept.”

The Supreme Court of Canada quoted with approval the decision of the trial judge who found that Metis communities exist outside of the Red River area of Manitoba, the only communities recognized until now. This is good news for the Metis of Nova Scotia and in other parts of Canada.

My favorite quote of the decision is found in the Justice Abella’s opening words:

“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. Many revelations have resulted in good faith policy and legislative responses, but the list of disadvantages remains robust. This case represents another chapter in the pursuit of reconciliation and redress in that relationship.”

It remains to be seen how quickly the government responds to the Court’s decision. I predict it will not be soon. Canada has been failing in it’s obligations to Canada’s First Nations for decades as the Canadian Human Rights Tribunal recently found in First Nations Child and Family Caring Society of Canada et al. v. Attorney General of Canada (for the Minister of Indian and Northern Affairs Canada) 2016 CHRT 2.

Although it has taken 150 years to get this far, the fight has just begun. However, there is now good reason for optimism.

Read the full decision here: Daniels v. Canada (Indian Affairs and Northern Development)

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