By Chris Coppin, Canadian Lawyer Magazine

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Jason Madden
Jason Madden.

Canadian Lawyer recently named Jason Madden to its list of Top 25 influential figures in Canadian law for his work on behalf of the Métis people. The Métis are a distinct cultural group of native peoples who are descendants of mixed First Nation and European heritage.

As the chief editor of the Conference of Western Attorneys General’s American Indian Law Deskbook, I wanted to learn about the challenges the Métis faced in using the legal system in Canada to gain recognition and the differences between how the United States and Canadian governments treat indigenous peoples. I asked Madden to speak with me about his work on behalf of the Métis people, and he graciously agreed.

One challenge to gaining legal rights for the Métis was to have a legal definition of who is a Métis, according to Madden. In R. v. Powley, in which Madden was counsel for the interveners Métis National Council and the Métis Nation of Ontario, the Supreme Court of Canada described the term Métis as “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.”

Thus, Métis are not considered to be Indians (First Nations), but are a separate cultural group. One of the problems presented by this distinction, as described by Madden, is that the Métis people have found it difficult, if not impossible, to get the federal government or provincial governments to engage the Métis in negotiations to resolve Métis claims to lands, harvesting rights, self-governing rights and compensation for past wrongs.

It is clear under the Canadian Constitution that the federal government has authority to legislate regarding “Indians, and Lands reserved for Indians,” as referenced under S.91(24) of the Constitution Act, 1867. However, unlike in the United States where the federal government owns a majority of the lands in the west, the Canadian provinces were given ownership of the public lands. Thus, the provinces are a necessary party in the negotiation of the land claims of Métis as well as other native groups. Madden explained that the federal government denies it has responsibility to address the Métis claims while, at the same time, the provinces also deny any responsibility. Thus, the Métis have been denied a place at the negotiation table to address their grievances.

That may all change with the case of Daniels v. Canada. In that case, where Madden represented the intervener Manitoba Métis Federation, the plaintiffs did not challenge any laws or government action, but sought a resolution of the issue as to which government – federal or the provinces – has jurisdiction for the Métis people under the Constitution (i.e., are the Métis, who are culturally distinct from “Indians,” still included within the meaning of Section 91(24) of the Constitution Act, 1867?).

The Federal Court found that over the years, the federal government had a flexible policy toward the Métis that at times treated the Métis as under federal jurisdiction and at times not under federal jurisdiction. The Federal Court concluded that the Métis are included as a group under the term “Indians” as it is used in the Constitution Act, 1867. The Federal Court of Appeal has upheld the Federal Court, and the federal government appealed the decision to the Supreme Court of Canada. A decision on whether the Supreme Court will hear this appeal is expected soon.

I found in speaking with Madden, who is Métis, that native peoples in both the United States and Canada face many of the same legal obstacles in dealing with their respective federal governments. Although the federal governments have enacted laws to recognize and restore native peoples’ rights, it is through the courts that those rights are enforced.