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A Notable Legal Victory for the Métis

posted Mar 27, 2013, 12:25 PM by Ciara Sebastian

The Federal Court’s decision in Daniels v. Canada, released on January 8, 2013 is interesting in that it declares what everyone knew all along: Métis and non-status Indians are “Indians” within the meaning of s. 91(24) of the Constitution Act, 1867. According to Mr. Justice Phelan, it took 14 years of litigation and $5 or $6 million of the people’s money for the federal government to be told what the Minister of Indian Affairs had written in a letter to the Institute for Research on Public Policy in 1985.

A friend and former federal negotiator once told me privately that the federal government hadn’t won a significant Aboriginal rights case since 1973. He was referring to the Supreme Court’s decision in that year in the case of Calder. On that occasion, three judges of the Supreme Court held that the Aboriginal title of First Nations in British Columbia had not been extinguished, and three held that it had. The seventh judge decided the case on an unrelated technical point. My friend was, and remains, correct. The federal government has lost again, but the federal government has no shame and lots of our money, and an appeal is under way. This is also convenient for federal government politicians, as now they don’t have to answer questions about anything because “the matter is before the courts”.

It should be noted that the federal government has the power to refer an issue directly to the Supreme Court of Canada, but it refused to do so in this case. In fact, the government argued that Mr. Daniels action for a declaration about the constitutional status of the Métis should have been dismissed because it was in effect an “impermissible private reference”. A direct reference would have seen this issue settled years ago, for a fraction of the cost.

What is disturbing about these cases is that the federal government and its lawyers refuse to acknowledge anything where Aboriginal peoples and their rights are involved. This lack of recognition and co-operation extends even to the most mundane of technical points. For example, in the Daniels decision, the judge commented on the government’s refusal to acknowledge and consent to the receipt by the Court of documents that came from its own archives:

"Leslie had to be called by the Plaintiffs because the Defendants would not admit that a significant number of government documents were in fact government documents. The Defendants’ position was wholly untenable and just a further example of the extent to which the Defendants would proceed in attempts to frustrate this litigation."

Forcing a party in litigation to formally prove documents that will clearly end up being admissible is a waste of time and money. Parties in legal proceedings should focus on the issues that are actually in dispute, not be sidetracked by trivial technicalities. One wonders how the federal government justifies litigation by sharp practice as upholding the honour of the Crown in its relationships with Aboriginal peoples. Of course, that’s just another series of cases that they have also unsuccessfully litigated.

The Federal Court in Daniels was also critical of the federal government’s argument that it could define the term “Indian” through its own legislation. The definition contained in the Indian Act excludes the Métis (as well as other non-status Indians). As the judge said:

"That proposition would allow the federal government to expand and contract their constitutional jurisdictions over Indians unilaterally.

It is a settled constitutional principle that no level of government can expand its constitutional jurisdiction by actions or legislation. The federal government may wish to limit the number of Indians for which it will grant recognition under the Indian Act or other legislation but that does not necessarily disqualify such other Indians from being Indians under the Constitution."

When a court says, “it is a settled constitutional principle” it’s code for, “how can you make such a ridiculous argument?” One doesn’t have to think too long and hard about the point to realize that if a government can define its jurisdiction through ordinary legislation that it alone enacts, then the constitution isn’t worth the paper it’s printed on because it can be changed on a whim. In other words, the federal government based its case at least in part on an argument that it should have been embarrassed to make.

But the situation is worse than that. The federal government bases its policies in relation to Aboriginal peoples on a similar argument. It argues that anything that has to do with Aboriginal peoples that falls under a provincial area of jurisdiction is a provincial responsibility, and not federal under s. 91(24). So, it says education and child and family services, for example, are provincial matters. By this logic, then, with one exception, s. 91(24) has no content - because everything that isn’t already listed under s. 91 as a federal power is listed under s. 92 as a provincial power. The exception is in relation to Indians on reserves. Here, the federal government will admit to its responsibility, in spite of the fact that in 1983 the Supreme Court of Canada said, in a case called Four B Manufacturing, in effect, “an Indian isn’t any less an Indian because he lives off a reserve nor any more an Indian because he lives on a reserve”:

Section 91.24 of the British North America Act, 1867 [now the Constitution Act, 1867] assigns jurisdiction to Parliament over two distinct subject matters, Indians and Lands reserved for the Indians, not Indians on Lands reserved for the Indians. The power of Parliament to make laws in relation to Indians is the same whether Indians are on a reserve or off a reserve. It is not reinforced because it is exercised over Indians on a reserve any more than it is weakened because it is exercised over Indians off a reserve.

In that case and others, the Court held that there are two areas of jurisdiction in s. 91(24), “Indians” and “lands reserved for the Indians”. Through policy this time, not even legislation, the federal government continues to act as if there was only one head of power under s. 91(24), that being “Indians on their lands”.

The bottom line here is that the federal government works hard to find clever arguments to defeat the rights of Aboriginal peoples. It makes litigation as difficult and as expensive as possible for Aboriginal peoples in order to deter them from taking action to protect their legal rights. It is more subtle, but just as effective as the pre-1951 provision of the Indian Act that actually prohibited First Nations from hiring lawyers to advance their claims. Instead of expending human and financial resources on resisting the recognition and protection of constitutionally guaranteed rights, it makes more sense to put all those resources to positive use, to find the legal means and mechanisms to actually accomplish positive change for Aboriginal peoples and stop fighting

Mr. Daniels didn’t live long enough to see the result of his action. His grandchildren may not live long enough to see the end of it in the Supreme Court of Canada. All of us are the losers.


On March 7, 2013 the Supreme Court of Canada released its decision in the Manitoba MétisFederation Inc. v. Canada. This is another victory for the Métis who argued that the federal government breached its fiduciary obligations to the Métis people in its implementation of the land provisions of the Manitoba Act, by which Manitoba entered Confederation and the land claims of the Métis were addressed. The Supreme Court held that the land provisions of the Manitoba Act, did not give rise to fiduciary obligations, but were a solemn constitutional obligation aimed at reconciling Aboriginal interests with Crown sovereignty and thus engaged the honour of the Crown. Claims based on the honour of the Crown are not barred by statutory limitation periods or the equitable doctrine of laches (delay). The Manitoba Métis were therefore entitled to a declaration from the court that the transfer of land to Métis children as required by s. 31 of the Manitoba Act, was not carried out with diligence as required by the honour of the Crown. The Court also commented that equitable doctrines could not defeat the requirement to carry out a constitutional obligation.