Live from the SCC: Canada’s Forgotten People Have Hope in Harry Daniels v The Queen

The Metis and non-status Indians of Canada have fallen through the cracks of this country. Yesterday, the Supreme Court of Canada livestreamed their hearing of Harry Daniels v The Queen [Daniels], a case that may bring some relief to Canada’s “forgotten people” (in the words of Ian Cowie, one of the appellants’ witnesses).

Daniels has only one question at its core: Does the federal government have jurisdiction over Metis and non-status Indians under section 91(24) – the section that describes the federal head of power – of the Constitution Act, 1867?

The reason this question is important is that, without knowing under whose jurisdiction they fall (federal or provincial), the Metis and non-status Indians have no one to hold accountable for the fact that this group is denied access to desperately-needed programs available to other Aboriginal groups. They have no one to turn to when they are consistently excluded from Crown consultations and negotiations.

In 1999, the Congress of Aboriginal Peoples and its President, Harry Daniels (famed Metis leader and social activist), sought an answer to this question. But 16 years of litigation later, the Metis of Canada still don’t have a complete one, and Harry Daniels has since passed away.

The trial judge claimed that Metis and non-status Indians were Indians for the purposes of section 91(24). Historically, the trial judge found that the Metis were treated as a separate group, but within the broader overarching class of “Indians” – they suffered the same discrimination, the same burdens as Indians. The trial judge said: “It is true today that in the absence of federal initiative in this field they are the most disadvantaged of all Canadian citizens.”

The Federal Court of Appeal agreed that Metis were included under section 91(24), but did not include non-status Indians in their declaration because, they stated, such a declaration “lacks practical utility.”

On Thursday, October 8, the two parties, as well as a swathe of intervenors representing various provinces and Aboriginal groups, appeared before the Supreme Court of Canada in an attempt to resolve this once and for all.

The appellants sought to re-include non-status Indians. They also wanted two more things: a confirmation that the Crown owes the Metis a fiduciary duty, and that the Metis and non-status peoples have the right to be consulted and negotiated with – in good faith – by the federal government. The last two requests are necessary, they say, to actually exercise the legislative power in section 91(24) once recognition is granted.

Their arguments focused on the historical, linguistic, and philosophical context of the words “Indian.” Counsel pointed to the government policy of “Indian if necessary, but not necessarily Indian” to explain that government officials would change their stance on Metis categorization to further whichever policy goal was in their back pockets at the time. Most importantly, counsel argued that the Metis can be considered a distinct and unique group, but can still fall under the term “Indian” in section 91(24). As counsel for the intervener, Metis Nation, said, “The Stalo, the Cree don’t conceptually think of themselves as Indians either. Others put those terms on them.” Those others (the term-putters) would have intended a fluid categorization of the Metis – in the words of Mitch McAdams QC for AG of Saskatchewan, the fathers of confederation would have intended a “flexible definition so Parliament would have the authority to deal with the myriad of policy concerns related to Indians in the future.”

In addition – and I found this argument particularly persuasive – McAdams outlined that defining Metis could be divided up into four different approaches: a race-based definition, a culturally-based one, self-identification, or community acceptance. McAdams argued that all of the above could be a proper basis for Parliament to exercise its jurisdiction if it chooses to do so, and the Metis, even as a distinct group, could easily fall within any and all of these four categories.

The bench was relatively inactive during many of these submissions – until the Assembly of First Nations (“AFN”), who took a direct line of argument that stated First Nations must themselves define their communities and the membership within. McLachlin CJ seemed taken aback: “We are asked here to give an answer – do they fit into a certain jurisdictional power or not.  I think what you are saying is that the courts shouldn’t be giving an answer.” AFN confirmed that it thinks it is not for the Crown to determine who is First Nations, but for the First Nations themselves to decide. “So not for us to decide, then” quipped Brown. “Well, then I guess we are done here!”

The court seemed to become much more engaged with opposing counsel, Her Majesty the Queen as represented by the Minister of Indian Affairs and Northern Development (hereafter referred to as the federal government). Karakatsanis, Abella, Cromwell, Brown JJ, and McLachlin CJ all jumped in at various points in the federal government’s argument, asking a lot more questions than they did with counsel for the Congress of Aboriginal Peoples. It’s possible they had more energy, which is perhaps indicative of the Court’s concerns with the stability of the federal government’s argument – whether this will end in a positive result for the federal government is tricky to say.

One of these lines of questioning may prove enlightening.

The court’s involvement started when counsel for the federal government expressed the concern that all present were trying to define something in a “vacuum.” He said, “What we have now is a request for a broad and amorphous declaration with respect to a group of aboriginal peoples. And with respect, that can cause problems down the road.” Counsel then stressed the need for “prudence.”

Abella J quickly jumped on this: “Every time we are urged to expand the scope of a right, there’s no question that that will have consequences, and we have to be aware of them. But the question before us squarely is whether or not Indians in 91(24) includes Metis and non-status. So you’re saying what?”

Counsel responded quickly with his party’s position, that section 91(24) does not include Metis, and then went on to say that “what a government chooses to do or not to do is the decision of the elected representatives.”

McLachlin CJ seemed perturbed by this argument, particularly as it related to accountability. “There needs to be clarification on these things so that the electorate is accountable to the voters and our basic democratic system works properly,” she said. “We need to know what the federal government has power over so we can know whether they are doing their job.”

Counsel affirmed his party’s belief that this accountability or responsibility doesn’t necessarily come from placing Metis people in section 91(24). He said, “There’s no magical constitutional wand. Placing Metis people in 91(24) does not resolve many of the issues raised in this litigation.” He argued that these issues should instead be addressed under section 35 of the Constitution and section 15 of the Charter. Counsel continued by restating what he believed McLachlin CJ’s question to be – “Your question seems to be: what should have been in 91(24). We have to look at what 91(24) actually contains.”

Counsel insisted that the historical record and context indicated a narrow approach to the definition of “Indian” because of the distinct nature of the Metis people. This argument was taken up by the Attorney General of Alberta, who stated that the Metis saw themselves as a unique group and should be treated as such.

If it has not already been made clear, I must confess my own bias – my fingers are crossed that the court was so active with the federal government’s submissions because they wanted to shake the loose soil on which their argument stands in order to expose the roots. For now, we will have to wait.  The court has reserved their judgment.