"As I mused, the fire burned"

Reflection on life as a person of faith.

Daniels v. Canada (Indian Affairs and Northern Development), 2016 SCC 12

with one comment

This SCC case has radically redefined the status of Metis and metis in Canada by clearly (for the first time ever) stating that they fall under section 91(24) of the Constitution Act of 1867, that is, they are “Indians” within the meaning of the CA of 1867.  This engages some pretty fundamental questions of personal identity.

This blogger offers a good overview in text form of exactly what Daniels was about.

If you want a bit more in depth explanation, this Carleton law professor provides a good explanation as well as some discussion of the interplay between Daniels and another key case, Powley.  Powley involved the question of the ability of the Metis to hunt without requiring that they comply with the provincial law (ie, hunting licenses etc).  Powley established a three-part test to decide if someone was “Metis” (at paras 31-34):

31. First, the claimant must self-identify as a member of a Métis community. This self-identification should not be of recent vintage: While an individual’s self-identification need not be static or monolithic, claims that are made belatedly in order to benefit from a s. 35 right will not satisfy the self-identification requirement.

32. Second, the claimant must present evidence of an ancestral connection to a historic Métis community. This objective requirement ensures that beneficiaries of s. 35 rights have a real link to the historic community whose practices ground the right being claimed. We would not require a minimum “blood quantum”, but we would require some proof that the claimant’s ancestors belonged to the historic Métis community by birth, adoption, or other means. Like the trial judge, we would abstain from further defining this requirement in the absence of more extensive argument by the parties in a case where this issue is determinative. In this case, the Powleys’ Métis ancestry is not disputed.

33. Third, the claimant must demonstrate that he or she is accepted by the modern community whose continuity with the historic community provides the legal foundation for the right being claimed. Membership in a Métis political organization  may be  relevant to the question of community acceptance, but it is not sufficient in the absence of a contextual understanding of the membership requirements of the organization and its role in the Métis community.  The core of community acceptance is past and ongoing participation in a shared culture, in the customs and traditions that constitute a Métis community’s identity and distinguish it from other groups.  This is what the community membership criterion is all about.  Other indicia of community acceptance might include evidence of participation in community activities and testimony from other members about the claimant’s connection to the community and its culture.  The range of acceptable forms of evidence does not attenuate the need for an objective demonstration of a solid bond of past and present mutual identification and recognition of common belonging between the claimant and other members of the rights-bearing community.

34. It is important to remember that, no matter how a contemporary community defines membership, only those members with a demonstrable ancestral connection to the historic community can claim a s. 35 right.  Verifying membership is crucial, since individuals are only entitled to exercise Métis aboriginal rights by virtue of their ancestral connection to and current membership in a Métis community. [emphasis added]

This test was specifically about status under section 35 of the Constitution Act of 1982.  That section defines Canada’s aboriginal peoples as the First Nations, Inuit and Metis.  More specifically:

The term “Métis” in s. 35 of the Constitution Act, 1982 does not encompass all individuals with mixed Indian and European heritage; rather, it refers to distinctive peoples who, in addition to their mixed ancestry, developed their own customs, and recognizable group identity separate from their Indian or Inuit and European forebears. A Métis community is a group of Métis with a distinctive collective identity, living together in the same geographical area and sharing a common way of life. The purpose of s. 35 is to protect practices that were historically important features of these distinctive communities and that persist in the present day as integral elements of their Métis culture. [emphasis added]

The conclusion of the SCC in Powley was that the Metis who met the three-part test were part of Canada’s ‘aboriginal peoples’ and were therefore entitled to some special treatment with respect to things like harvesting animals.  The primary focus of the decision was to identify the reason behind section 35 of the Constitution Act of 1982.  That year will be important when we start talking about Daniels.

In the years after Powley, all the provincial Metis associations adopted the Powley test as the entry test for membership.  When my daughter and I were registered with the MNA a few years back, I had to prove that my family was connected to a historic Metis community (in our case, the Red River Settlement).  That meant demonstrating a genealogical connection from me back to a family member who had received Metis script (a land grant intended to extinguish the Metis treaty rights as indigenous people, although the government forgot about that aspect for the next 150 or so years).

An interesting midpoint in the discussion was the case two years ago, Manitoba Metis Federation Inc. v. Canada (Attorney General), [2013] 1 SCR 623, 2013 SCC 14 (CanLII).  In that case the MMF sought a ruling that the Manitoba Act of 1870 had never been properly fulfilled by the federal government.  From the case summary:

Section 31 of the Manitoba Act is a solemn constitutional obligation to the Métis people of Manitoba, an Aboriginal people, and it engaged the honour of the Crown. Its immediate purpose was to give the Métis children a head start over the expected influx of settlers from the east. Its broader purpose was to reconcile the Métis’ Aboriginal interests in the Manitoba territory with the assertion of Crown sovereignty over the area that was to become the province of Manitoba. By contrast, s. 32 was a benefit made generally available to all settlers and did not engage the honour of the Crown.

Although the honour of the Crown obliged the government to act with diligence to fulfill s. 31, it acted with persistent inattention and failed to act diligently to achieve the purposes of the s. 31 grant. This was not a matter of occasional negligence, but of repeated mistakes and inaction that persisted for more than a decade, substantially defeating a purpose of s. 31. This was inconsistent with the behaviour demanded by the honour of the Crown: a government sincerely intent on fulfilling the duty that its honour demanded could and should have done better.

None of the government’s other failures — failing to prevent Métis from selling their land to speculators, issuing scrip in place of land, and failing to cluster family allotments — were in themselves inconsistent with the honour of the Crown. That said, the impact of these measures was exacerbated by the delay inconsistent with the honour of the Crown: it increased improvident sales to speculators; it meant that when the children received scrip, they obtained significantly less than the 240 acres provided to those who took part in the initial distribution, because the price of land had increased in the interim; and it made it more difficult for Métis to trade grants amongst themselves to achieve contiguous parcels. [emphasis added]

This decision was so startling that I swore out loud when I first read it.  Essentially, the SCC has declared that the Crown deliberately failed to implement the intention of s. 31 in providing a timely and preferential land grant to the Metis of Red River.  The entire purpose of s. 31 was to extinguish aboriginal title to the land to permit further settlement of the prairies.

Large portions of my Metis family, in the dark years after the 1870 rebellion, fled Red River and scattered west into the North West Territories (to become Saskatchewan and Alberta).  In the First Metis Census I can see the majority of the Anderson clan scattering west out of Red River.  That was mostly because of the loss of land, and because of the nasty situation in Red River at the hands of the Red River Expeditionary force.  The RREF is one of the reasons that Stephen Harper’s assertion that Canada has no colonial past is entirely laughable.

Now rolex forward to the present day, and the Daniels decision.  The main focus of this case was the status of the Metis under section 91(24) of the Constitution Act of 1867.  These Constitution Acts are key documents in Canadian law, as they set out the division of powers between the federal government and the provincial government.  From the case summary:

The jurisprudence also supports the conclusion that Métis are “Indians” under s. 91(24). It demonstrates that intermarriage and mixed‑ancestry do not preclude groups from inclusion under s. 91(24). The fact that a group is a distinct people with a unique identity and history whose members self‑identify as separate from Indians, is not a bar to inclusion within s. 91(24). Determining whether particular individuals or communities are non‑status Indians or Métis and therefore “Indians” under s. 91(24), is a fact‑driven question to be decided on a case‑by‑case basis in the future.

As to whether, for purposes of s. 91(24), Métis should be restricted to the three definitional criteria set out in Powley in accordance with the decision of the Federal Court of Appeal, or whether the membership base should be broader, there is no principled reason for presumptively and arbitrarily excluding certain Métis from Parliament’s protective authority on the basis of the third criterion, a “community acceptance” test. The criteria in Powley were developed specifically for purposes of applying s. 35, which is about protecting historic community‑held rights. Section 91(24) serves a very different constitutional purpose. The constitutional changes, the apologies for historic wrongs, a growing appreciation that Aboriginal and non‑Aboriginal people are partners in Confederation, as well as the Report of the Royal Commission on Aboriginal Peoples and the Final Report of the Truth and Reconciliation Commission of Canada, all indicate that reconciliation with all of Canada’s Aboriginal peoples is Parliament’s goal.

The historical, philosophical, and linguistic contexts establish that “Indians” in s. 91(24) includes all Aboriginal peoples, including non‑status Indians and Métis. The first declaration should accordingly be granted. [emphasis added]

So, this finding is quite apart from the previous discussion about s. 35 in Powley.  s. 91(24) establishes federal responsibility for Indians, placing them solely under the jurisdiction of the Parliament of Canada:

91. . . . it is hereby declared that . . . the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated . . .

. . . 24. Indians, and Lands reserved for the Indians.

So the question Daniels brought to the court was if the Metis (and non-status Indians) were contained within section 91(24).  Since the Manitoba Act was not implemented, the Metis have been a ping-pong ball bounced back and forth between the federal and provincial governments, each declaring that the other had responsibility for the Metis.  Only Alberta, in the establishment of the Metis settlements, has taken positive steps to provide a land base for the otherwise dispossessed Metis.

This is the first time that such a definitive statement has been made about the status of Metis and non-status Indians (those not registered under the Indian Act).  It does not mean that the Metis are now “status Indians” and have fallen under the sway of the Indian Act.  What it does mean is that the Metis are now unarguably under federal jurisdiction.  What that might mean into the future is entirely up in the air, and I expect there will be years of negotiation, argument and further court cases in order to sort out the practical implementation.  Given that the MMF case has resulted in little change some two years later, I’m not holding my breath.

What difference it does make, for those of us trying to understand what it means to be Metis, is that a question some 131 years unanswered has now been clearly resolved.  Riel’s vision has come one step closer to reality — a vision where the Metis are a unified people with a real standing within Canada.  An undoing of many decades of abuse and marginalization.  So, Maria Campbell’s “road allowance people” have now come into an identity that reaffirms what we have always known, that we stand as a people distinct.  This is perhaps the real starting point, as now we can work out the relationship with settler culture that should have been established in 1870.

As a footnote, one of the additional major shifts that Daniels has brought into being is a broader definition of who constitute the Metis.  Up until now we have Powley, which is fine if you are from one of those historic communities, but what if you’re not?  There are large groups of people on either coast that call themselves “Metis”, but are unable to pass a Powley test, at least a Powley test the way it is established right now.  These are also people of mixed ancestry, who have also developed a unique culture, but very distinct from that of the Red River Metis.  Up until now, even the established Metis rejected these other groups (see for example, Chris Andersen’s book, Metis, where he states that only the Red River Metis are able to call themselves by that title).

Daniels pushes that aside, at least for the purpose of section 91(24), and states that, “It demonstrates that intermarriage and mixed‑ancestry do not preclude groups from inclusion under s. 91(24).”  Because the ultimate goal of all of this is reconciliation between the government and all of Canada’s aboriginal peoples, the definition of those aboriginal peoples for the purpose of s. 91(24) is quite broad.

So the internal arguments about who is and who is not Metis, have been undone by the SCC decision.  Whether we Red River Metis like it or not, our family just got a bit larger.  I think that a good thing.





Written by sameo416

April 16, 2016 at 3:17 pm

Posted in Uncategorized

One Response

Subscribe to comments with RSS.

  1. See you in Grand-Metis Quebec. Just 4 hours
    Drive from Carquet NB (Acadia). You know the place where metis never existed? Kind of hard to ignore towns and villages with metis included in the name. Many Western metis deny the existence out of a deeper hate for anything that is east. Its a western religion almost.

    Émile LeClerc

    August 11, 2016 at 12:59 pm

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

Urbane Adventurer: Amiskwacî

thoughts of an urban Métis scholar (and sometimes a Mouthy Michif, PhD)

Joshua 1:9

Reflection on life as a person of faith.

Engineering Ethics Blog

Reflection on life as a person of faith.


Today, the Future and the Past all kinda rolled up in one.


For Those Courageous in Standing for Truth


Law, language, life: A Plains Cree speaking Métis woman in Montreal

Malcolm Guite

Blog for poet and singer-songwriter Malcolm Guite

"As I mused, the fire burned"

Reflection on life as a person of faith.

%d bloggers like this: