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Nelligan O'Brien Payne gratefully acknowledges the contribution of Eric Kerson, Student-at-Law in writing this blog post.

On Thursday, October 8, 2015 the Supreme Court of Canada held its long-awaited hearing in Harry Daniels, et al. v. Her Majesty the Queen. The Supreme Court is being asked to determine whether the approximately 200,000 Métis and 400,000 non-status Indians fall under s. 91(24) of the Constitution Act, 1867.

Section 91(24) of the Constitution Act, 1867 gives exclusive federal jurisdiction over “Indians, and Lands reserved for Indians”. The Métis argued that the political wrangling between the federal and provincial governments has produced a large population of collaterally damaged Métis and non-status Indians and that, as a result, Métis and non-status Indians have been deprived of programs, services and intangible benefits all governments recognize are needed.

The hearing marked the culmination of 16 years of litigation. The initial application was commenced in 1999 by prominent Métis leader Harry Daniels, but did not proceed to trial until 2011. The Applicants have sought a declaration that (1) the Métis and non-status Indians are “Indians” within the meaning of s. 91(24) of the Constitution Act, 1867; (2) the federal Crown owes a fiduciary duty to the Métis and non-status Indians; and (3) the Métis and non-status Indians have the right to be consulted on a collective basis through representatives of their choice.

While the Federal Court ruled in favour of the Métis and non-status Indians, declaring they fall under federal jurisdiction, the Federal Court of Appeal (FCA) reversed the decision with respect to non-status Indians, while upholding the declaration regarding Métis. According to the FCA, non-status Indians are Indians to whom status may be granted by legislation. The FCA explained that the factors determining Indian status are complex and far-ranging, and the validity of any particular exclusion depends on the reason for that exclusion and must be assessed on a case-by-case basis. Consequently, “non-status Indians as a group do not lend themselves to the declaration of general application”.

The Supreme Court of Canada has previously defined the Métis as a distinct Aboriginal people, which differs from their “Indian forebearers”, and thus to define the Métis in relation to their “Indianness” is inconsistent.

The Council of Aboriginal Peoples appealed to the Supreme Court, in order to obtain clarification on that court’s previous ruling that Métis are a distinct Aboriginal people in the context of Canada’s constitution. As a sign of the importance of this appeal, there are 12 intervenors, including various Aboriginal organizations and provincial governments. “We've been treated as a people without rights and basically as a third class aboriginal peoples,” said Clément Chartier, president of the National Métis Council, one of the intervenors in the case.

Given that certain rights have been recognized in favour of the Métis, such as hunting and fishing, one hopes that the Supreme Court of Canada declares that the Métis fall within s. 91(24) of the Constitution Act, 1867 and recognize the right to be consulted on decisions and activities that may impair the exercise of their rights.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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