We recently discussed the case of Harry Daniels, et al. v. Her Majesty the Queen, which was heard by the Supreme Court of Canada in October 2015. The claimants, initially represented by the late Chief Harry Daniels, have spent 16 years litigating for Métis and non-status Indian rights.
The claimants are seeking 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 and negotiated with, in good faith, by the federal Crown.
The Supreme Court of Canada has previously defined the Métis as a distinct Aboriginal people, that differ from their “Indian forebearers”, and thus to define the Métis in relation to their “Indianness” is inconsistent. In R. v. Powley, the SCC established a test for purposes of s. 35 rights. In addition to the mixed aboriginal and European ancestry, a Métis is a person who
- Has some ancestral family connection (not necessarily genetic);
- Identifies himself or herself as Métis; and
- Is accepted by the Métis community or a locally organized community branch, chapter or council of a Métis association or organization.
Non-status Indians are clearly Indians who have no status under the Indian Act, but possess a strong connection to their Indian heritage. Because these peoples are Indians, status could be granted by legislation. Since 1857, Indians have been subject to different government policies, which has led to the loss of status or enfranchisement. Many policies have been aimed at the assimilation of Indians into mainstream society. For example, Indians who wanted to acquire property had to renounce their status, as did those seeking to obtain higher education or carry on a profession. The laws also set up enfranchisement against Indian women who married non-Indian men, which resulted in the loss of status also for their descendants.
Why does it matter that Métis and non-status Indians be recognized as falling within the ambit of s. 91(24) of the Constitution Act?
Over the years, the courts have recognized that Métis and non-status Indians are some of the most vulnerable segments of the Canadian population. They are excluded from the benefits, services, programs and protection offered by the federal government to status Indians.
In fact, the Secretary of State, in a memorandum to Cabinet dated July 6, 1972, stated, as cited by the honourable Judge Phellan of the Federal Court in Daniels:
“The Métis and non-status Indian people, lacking even the protection of the Department of Indian Affairs and Northern Development, are far more exposed to discrimination and other social disabilities. It is true to say that in the absence of Federal initiative in this field they are the most disadvantaged of all Canadian citizens.”
Historically, Métis and even non-status Indians have at times been included in treaties and their related benefits. Even today, Canada and Ontario are negotiating a land claim with the Algonquins of Ontario, a group comprised of one Indian Act Algonquin band and a number of non-status Algonquin groups. These groups elect representatives to sit at the negotiation table and will have the opportunity to ratify the land claim settlement.
In 1995, Canada estimated that there were 404,200 non-status Indians living south of 60th parallel, and 191,800 Métis.
Many of these people continue to practice traditional activities, which can be impacted by development and government policies. It is therefore essential that they be recognized and consulted on matters that may impair their rights.
Hopefully the SCC will take this opportunity to give certainty to the Métis and non-status Indians, who continue to live on the fringes of both mainstream society and aboriginal communities. These groups have essentially fallen between the cracks over the years in terms of access to programs and services. If it weren’t for outdated policies that define what it is to be “Indian”, they would have had the benefit of these services years ago.