MNO President Lipinski speaks about the Federal Court of Appeal’s Daniels v.
Canada decision.
On October 8, 2015, the Supreme Court of Canada heard final arguments on Danels v Canada. It is expected that the Supreme Court will provide its final decision sometime in 2016. Click here for a story about Daniels going before the Supreme Court.
Below are previous updates on Daniels v Canada.
In a memorandum sent July 29, 2015, Métis Nation of Ontario (MNO) President Gary Lipinski revealed that the next hearing for the Daniels v. Canada case was scheduled for October 8, 2015, at the Supreme Court of Canada in Ottawa. Prior to the hearing, President Lipinski was interviewed about the case on the APTN news program InFocus. Click here to view the program.
President Lipinski’s memorandum included additional documents pertaining to the case and the upcoming court date.
On April 17, 2014, the Federal Court of Canada released its decision on Daniels v. Canada. The Court upheld key aspects of the rulings of lower courts that asserted that Métis are the responsibility of the federal government and should be defined as “Indians” under the Canadian Constitution and therefore should receive similar rights and benefits.
Rather than open discussion with Métis governments about the decision, the Federal Government made a request to appeal the Federal Court decision to the Supreme Court of Canada.
On November 20, 2014, the Supreme Court announced their decision to grant leave to hear an appeal on Daniels v. Canada. Métis Nation of Ontario (MNO) President Gary Lipinski declared that the MNO would seek intervener status during hearings for the case expected in 2015.
“We would have preferred if the Supreme Court had chosen to not hear the case,” explained Lipinski, “as the Federal Court of Canada ruling earlier this year clarified all issues impacting Métis but since the case will go to the High Court, we will be intervening in order to urge the Justices to uphold the decision of the Federal Court.”
President Lipinski stated: “The message from lower courts was clear: the federal government cannot continue its complete exclusion of Métis from specific and comprehensive claims processes that are open to the two other constitutionally recognized Aboriginal peoples. The jurisdictional football the Métis are subjected to with respect to their rights, claims and needs must end.”
“It is unfortunate,” President Lipinski added, “that the Federal Government chose to appeal the case to the Supreme Court rather than enter into negotiations with Métis governments. Now that the case is going to appeal, however, the MNO will intervene to ensure that the voice of Métis in Ontario is heard.”
Federal Court of Appeal Daniel v Canada Judgement
Federal Court of Appeal Daniel v Canada Judgement (French)
Federal Court of Appeal Daniel v Canada Reasons for Judgement
Federal Court of Appeal Daniel v Canada Reasons for Judgement (French)
Métis leader Harry Daniels who initiated Daniels v
Canada in 1999.
The MNO intervened in the Daniels case earlier this year and was represented in court by Jean Teillet. From Teillet’s persepective the most salient paragraphs in the findings were as follows:
[3] The respondents’ position with respect to the appeal and cross-appeal is supported by two interveners: the Métis Settlements General Council and the Métis National Council. The intervener Gift Lake Métis Settlement asks that both the appeal and the cross-appeal be dismissed. The intervener the Manitoba Métis Federation asks that the appeal be dismissed, but that the Judge’s declaration be restated to separate reference to non-status Indians from the declaration. It would restate the declaration as follows: “The Court declares that the Métis are included as ‘Indians’ within the meaning of s. 91(24) of the Constitution Act, 1867.” The intervener the Métis Nation of Ontario asks that the appeal be dismissed and that the Court decline to define the Métis other than to say that the individuals included as Métis within section 91(24) are the members of the Métis peoples of Canada.
[5] For the reasons that follow, I would allow the appeal in part by deleting reference in the declaration to non-status Indians and would restate the declaration as proposed by the Manitoba Métis Federation. I would dismiss the cross-appeal, reserving the issue of the costs of the appeal and cross-appeal between the appellants and respondents.
[42] The Judge began by considering the request, made prior to the Treaty 3 negotiations, that 15 families of half-breeds living on the Rainy River be included in the treaty. Thereafter, the Indian Act, 1876 was passed and the Indian Affairs branch took the position that the department could not “recognize separate Half breeds bands”. As a result, the Rainy River half-breeds were given a reserve, but were required to join a First Nations band for which an adjacent reserve had been surveyed. The Judge found that this adhesion to Treaty 3 was an instance where the federal government treated the half-breeds/Métis group as if it had a claim to Indian title, and gave the group a reserve as part of the surrender of that claim. It was a further instance of the federal government exercising jurisdiction over a Métis group based not on their connection to European ancestors, but on their connection to their Indian ancestry (reasons, paragraphs 424, 430, and 434).
[55] Relying upon Canard v. Canada (Attorney General), [1976] 1 S.C.R. 170, 52 D.L.R. (3d) 548 at page 207 of the Supreme Court Reports, the Judge viewed section 91(24) as a race-based power (reasons, paragraph 568); both non-status Indians and Métis were found to be connected to the racial classification Indian by way of marriage, filiation and most clearly, intermarriage (reasons, paragraph 531). In the Judge’s further view, the single most distinguishing feature of non status Indians and Métis is that of their “Indianness” not language, religion or connection to European heritage (reasons, paragraph 532).
[69] … as a matter of law, a challenge to the constitutionality of actual or proposed legislation is not a condition precedent to the issuance of a declaration. Similarly, a declaration does not lack practical utility simply because it does not create an enforceable obligation to enact legislation.
[76]… if Parliament can grant status to a person under section 91(24), that person is necessarily an “Indian” within the meaning of that section. In the result, a declaration that non-status Indians who could be granted status through section 91(24) are Indians for the purpose of that section is redundant and lacks practical utility.
[77] It is also inappropriate to grant a declaration clarifying the limits of who may be considered an Indian notwithstanding their exclusion from the Indian Act…
[78] … to determine the limits of the word “Indian” as it pertains to non-status Indians under the division of powers it is necessary to analyze the reason each class of individual was excluded from the Indian Act on a case-by-case basis. To the extent that exclusions, or for that matter inclusions, are within the limits of section 91(24) of the Constitution Act, 1867, they can be validly imposed. Otherwise such exclusions are outside the limits of Parliament’s powers and are, therefore, invalid. This question can only be answered after reviewing the particular reason for each Exclusion.
[79] It follows that non-status Indians as a group do not lend themselves to the declaration of general application sought by the respondents. However the matter is considered, no purpose is served by addressing the question on the generic basis proposed: the declaration lacks utility and will not settle any issue between non-status Indians and the federal government. In consequence, the Judge ought not to have granted the declaration as it pertains to non-status Indians. I would therefore set aside the declaration as it applies to non-status Indians.
[88] I agree with the appellants that the definition [of Métis] advanced by the Judge is problematic. It lacks clarity and is open to at least three interpretations, one of which I believe is contrary to history and the jurisprudence of the Supreme Court.
[92] I reject the interpretation that by using the term “Indian heritage”, the Judge meant descent from members of the “Indian race” …
[96] I accept the submission of the Intervener Métis Nation of Ontario that a progressive interpretation of section 91(24) requires the term Métis to mean more than individuals’ racial connection to their Indian ancestors. The Métis have their own language, culture, kinship connections and territory. It is these factors that make the Métis one of the Aboriginal peoples of Canada.
[97] This is reflected in the jurisprudence of the Supreme Court of Canada in Powley, Cunningham and Manitoba Métis Federation. In Powley, the Supreme Court did not exhaustively define who were included in the term Métis for the purpose of section 35 of the Constitution Act, 1982. However, as discussed above, the Court rejected the notion that the term Métis encompassed all individuals with mixed Indian and European heritage. Instead, the term refers to a distinctive group of people who developed separate and distinct identities. The three broad factors that are the indicia of Métis identity for the purpose of claiming Métis rights under section 35 were found to be: self-identification, ancestral connection and community acceptance (Powley, at paragraphs 31 to 33).
[98] While these comments were made with reference to section 35 of the Charter, individual elements of the Constitution are linked to one another and must be interpreted by reference to the structure of the Constitution as a whole (Reference re Secession of Quebec, [1998] 2 S.C.R. 217 at paragraph 50). In Reference re: Firearms Act (Can.), 1998 ABCA 305, 164 D.L.R. (4th) 513, at paragraph 35, the Alberta Court of Appeal found there was no reason to exclude the Charter from an interpretation of the division of powers provisions in the Constitution Act, 1867. I agree.
[99] It follows that the criteria identified by the Supreme Court in Powley inform the understanding of who the Métis people are for the purpose of the division of powers analysis. The Powley criteria are inconsistent with a race-based identification of the Métis.
[108] … The Métis Aboriginal heritage or indigenousness is based upon self-identification and group recognition as Métis, not First Nations. It follows from this that the Judge recognized the Métis to be a distinct people.
[110] That said, I am not satisfied that it is necessary to exhaustively or definitively define the term Métis in order to determine whether the Métis people fall within the scope of section 91(24). The Constitution does not define “Indian” and the Supreme Court did not define “Eskimos” when determining they were included in section 91(24) in Re Eskimo Reference.
[111] It is sufficient that the Court not define the term Métis in a manner that is contradictory with history or the jurisprudence of the Supreme Court.
[120] … The objectives of section 91(24) included the need to control all native people and their communities in order to facilitate the development of the Dominion and to pursue the federal government’s plan to develop and settle lands in the North-Western Territory.
[135] The Judge then went on to make a number of findings of fact that were confirmatory of his view that the section 91(24) power was intended to include the Métis. Those findings included the following: … 15 families of half-breeds living on the Rainy River adhered to Treaty 3. The government treated the half-breeds group as if it had a claim to Indian title, and gave the group a reserve as part of the surrender of that claim (reasons, paragraphs 424, 430, and 434).
[159]…The Court declares that the Métis are included as “Indians” within the meaning of section 91(24) of the Constitution Act, 1867.”
Additional news articles:
Canadian Lawyer: /news–media/news/who-are-indians-within-parliament’s-authority-and-why-does-it-matter
Globe and Mail: http://www.theglobeandmail.com/news/national/landmark-ruling-on-rights-of-metis-upheld/article18053859/
APTN http://aptn.ca/news/2014/04/17/non-status-severed-ruling-giving-metis-rights-status-indians/
Ottawa Life Magazine: http://www.ottawalife.com/2015/07/daniels-versus-canada/