Canadian Supreme Court Ruling on Métis & Non-Status Indians

Before Canada entered the NW part of Turtle Island (North America) the majority of the people living and residing in this region (known as the Northwest and Rupertsland) were Métis.

(Metis fur trader 19th Century, Rupertsland)

 

(Métis flag; one predating Canada)

 

 

Now we have a new ruling in this country.

One Métis living, in what became Canada, have waited on for many years.

 

RULING: Canada’s 450,000 estimated Métis and approximately 200,000 ‘non-status’ Indians are indeed “Indians” under the Constitution, the Supreme Court of Canada declared Thursday in a long-awaited landmark decision more than 15 years in the making.

“It is the federal government to whom they can turn,” the unanimous 9-0 ruling said.

The high court was also asked to rule on whether the federal government has the same responsibility to them as to status Indians and Inuit, and whether they have a right to be consulted by the government on their rights and needs.

 

No need, the court said.

 

“It was already well established in Canadian law that the federal government was in a fiduciary relationship with Canada’s Aboriginal Peoples and that the federal government had a duty to consult and negotiate with them when their rights were engaged,” said Justice Rosalie Abella, writing for the court.

“Restating this in declarations would be of no practical utility.”

 

 

SIGNIFICANCE: A 9-0 ruling is not a small thing psychologically. Usually, one does not see a unanimous decision at any level of court – let alone the Supreme Court of Canada.

 

What will the  Supreme Court of Canada decision on the Daniels case likely mean in real terms for Métis and non-status Indians in Canada?

First, let us view establish some context to better understand the meaning of this April 2016 Supreme Court decision first.

The April 14, 2016 ruling which was a 9-0 unanimous decision from the highest court in Canada. It takes the discussion far beyond the earlier Federal Court of Canada ruling on the Métis and the non-status Indians.

 

 

Question: Who are the Métis anyways?

The Métis we should know already are not simply a mix between Indians and Europeans. No. The Métis existed as a distinct people and culture with their own identity, economy, lifestyle, flag and languages pre-dating Canada’s  founding.  Something which took place only – in 1867. ‘Only yesterday in the scheme of things.’

The non-status Indians have also found themselves a non man’s land for years as First Nations/Native Americans because of earlier bureaucratic decisions by the Federal Government of Canada. These non-staus Indians at present are not “recognized” by the Federal Government. As a result, these non-status indians ‘have laid on the side of the road’ for decades, much like their Métis cousins. Many members of the same household have situations wherein one sibling is Métis on the government paperwork. The other sibling is a Non-Status Indian on provincial or federal documents.

Both of these two groups have not lived but instead existed in a jurisdictional wasteland outside of the responsibility of the Federal Government since the Federal Government began to segment Aboriginal peoples in this land. This relationship has been one of ‘You guys go here; and you other guys go there’ attitude. The result limbo for the  aboriginal groups in question.

“We are charting new waters now but have not yet reached land”, one might call this recent ruling.

In hard terms what might the recent Supreme Court ruling mean with concern to long discussed matters such as healthcare coverage and sharing profits from mineral rights?

Why might non-aboriginal Canadians want to view this recent Supreme Court decision? Are we talking special rights here? or a correction which should have occured towards these two aboriginal groups many years ago?

 

What does Federal obligation mean?

The Federal Government will need to take consultation more seriously than it has in the past. Also, the Feds will need to think twice when giving corporations access to natural resources and minerals which the Métis and non-status were not consulted on traditionally. The governed just decided unilaterally or with provinces and then gave away access to those resources to various companies.

 

Does the Federal Government need to live up to law in this country?

On this question let us first discuss the Parliament, which is the legislative branch of Canadian Government. The Judicial branch of Canadian government ruling now means that the legislative branch can no longer ignore Section 91.

Understand that the Parliament is not above the Canadian Constitution; the parliament cannot simple do its own thing; or act in a way that is against the law or spirit of the Charter. Instead, the parliament is to uphold the Charter.

 

Indigenous People in Canada are protected by two different bodies of law:

1. The Constitution Act Canadian and the Canadian Charter of Rights and Freedoms

2. Aboriginal Rights

 

 

 

Background:

Until 1982, section 91(24) was the only reference to the Aboriginal peoples of Canada in the Canadian Constitution. The enactment of section 35(1) of the Constitution Act, 1982 recognized and affirmed the Aboriginal and treaty rights of the Aboriginal peoples of Canada existing in 1982. The Supreme Court of Canada first addressed the relationship between section 91(24) and section 35(1) in the 1990 decision of R. v. Sparrow. Acknowledging that the exclusive federal power to legislate in relation to “Indians, and Lands reserved for the Indians” continued after 1982, the Supreme Court of Canada held that this power “must, however, now be read together with s. 35(1).” This requirement led the Court to acknowledge that s. 35(1) mandates that the power of the federal government pursuant to section 91(24) be reconciled with the federal duty “to act in a fiduciary relationship with respect to aboriginal peoples” that is “trust-like, rather than adversarial.”

Prior to 1982, the Aboriginal and treaty rights of the Aboriginal peoples of Canada were vulnerable to governmental extinguishment by way of clear and plain legislative action. With the enactment of the Constitution Act, 1982, such rights received constitutional protection by virtue of section 35(1): 35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are here-by recognized and affirmed. Immediately following the enactment of section 35(1) as part of the Constitution Act, 1982, the import of the provision was unclear. A series of First Ministers’ Conferences during the 1980s failed to clarify the content of the provision. In 1990, the Supreme Court of Canada interpreted section 35(1) for the first time in R. v. Sparrow. Speaking to its content and the scope of its protection for Aboriginal and treaty rights, the Court also assessed the effect of section 35(1) on section 91(24) of the Constitution Act, 1867:

Rights that are recognized and affirmed are not absolute. Federal legislative powers continue, including, of course, the right to legislate with respect to Indians pursuant to s. 91(24) of the Constitution Act, 1867. These powers must, however, now be read together with s. 35(1). In other words, federal power must be reconciled with federal duty and the best way to achieve that reconciliation is to demand the justification of any government regulation that infringes upon or denies aboriginal rights.

 

The Court in Sparrow held that section 35(1), at the very least, provides “a solid constitutional base upon which subsequent negotiations can take place” to determine and recognize the still unproven Aboriginal rights embedded within the provision. While the Court states that section 35(1) provides the constitutional base for Crown-Aboriginal negotiation, it does not go so far as to identify section 35(1) as the constitutional mechanism to see the processes of negotiation carried out. Indeed, the Court does not identify a constitutional source of governmental power that occupies this role. However, it appears that section 91(24) is that source. Negotiations consecrated to determine Aboriginal and treaty rights fall under the classes of subjects “Indians, and Lands reserved for the Indians,” and therefore under the exclusive legislative jurisdiction of the federal government. Furthermore, reading section 91(24) together with section 35(1) illustrates that the former provision must also serve as the constitutional vehicle by which Crown-Aboriginal negotiations will transpire. One must recall that section 35(1) delivers the constitutional base for negotiation; it gives Aboriginal peoples a constitutional bargaining chip at the negotiating table, but not the negotiating table itself. As the provider for the welfare and protection of Aboriginal peoples and the level of government with the appropriate legislative jurisdiction, the federal Crown by virtue of section 91(24) is obligated to fulfill the promise of section 35(1) through honourable negotiation, so that the Aboriginal and treaty rights of the Aboriginal peoples of Canada are “recognized and affirmed” in both letter and reality.

 

What is Section 91 and Section 35 and why is it important?

How do the two relate to one another?

 

Section 91 (24) of the Constitution Act of 1867 provides that the federal government has the legislative jurisdiction over “Indians and lands reserved for the Indians.”

Section 35(1) illustrates that the former provision must also serve as the constitutional vehicle by which Crown-Aboriginal negotiations will transpire. One must recall that section 35(1) delivers the constitutional base for negotiation; it gives Aboriginal peoples a constitutional bargaining chip at the negotiating table, but not the negotiating table itself.

 

Daniels Decision

What is the consequence of this Daniels decision?

It is a is PSYCHOLOGICAL one.

YET for any  MATERIAL benefits (healthcare coverage, access to mineral rights, a real voice in the Commons, etc…) to acrue to Métis and non-status Indians we are very likely going to wait for some time.

The Feds, and the Corporations which lobby them, and in well thought out strategized strength, will not easily hand over their long-privileged access and use of the hard resources of this land.

 

Who are Canada’s Métis ?

 

My own view:

For real provision my Metis brethren would look not to the Canadian government for sustenance from ANOTHER PLACE (Hebrew: ‘Ha Makom’ meaning the Omnipresent God) . This is the One who can bring lasting changes for you.