UNDERSTANDING DANIELS On Thursday 17 April the federal court of appeal gave its decision in the Daniels case. Contrary to what is widely reported and claimed the case is not about Metis rights. It is about the authority of the federal Parliament to make laws on the subject matter of ‘Metis’, who are included in the meaning of ‘Indian’ in section 91(24) of the Constitution Act 1867. This is not a change in the law. The courts’ role is simply to declare what is the meaning of the law of the Constitution so that s.91(24) has always included the Metis. There have been many instances of federal law that targeted Metis people, including a provision in the Indian Act of 1884 that prohibited Metis or Indian people from meeting in public to express disagreement with government authorities. The most important piece of legislation is s.31, the Metis lands provision in the Manitoba Act 1870 which created the province of Manitoba and provided for a gradual settlement scheme in exchange for the Indian title of the Metis in Manitoba. That provision is part of the Constitution and was the subject of a Supreme Court of Canada decision last year in the Manitoba Metis Federation case. The Daniels case is named after the late renowned Metis political leader Harry Daniels who initiated it in the 1990s when he was President of the Congress of Aboriginal Peoples, the successor to the historic Native Council of Canada, one of the major national Aboriginal organisations of the modern era along with the National Indian Brotherhood. Harry fought ferociously and endearingly at the same time with four Prime Ministers of Canada in a battle to clarify a basic constitutional muddle that the majority of Canadians would not tolerate for themselves. Daniels opens the door for federal legislation in areas that touch specifically on Metis interests, whether for the protection of hunting or fishing rights or for the establishment of distinct institutions for the preservation of the culture of the people. But the existence of any rights is a matter for determination on a case-by-case basis and is not at issue in Daniels. One intended result of Daniels is to clarify whether the provinces and not the federal government can enact ‘Metis laws’. The case was necessary because federal governments often refused to accept the role of law-maker, resulting in some provincial legal initiatives such as Alberta’s Metis Settlements legislation which created Metis reserves during the hard times of the Depression era in that province. The question of federal and provincial ‘jurisdiction’ or authority to make laws is exceedingly complex and Daniels should not be seen as a threat to existing regimes such as the Alberta Settlements. Neither should it be believed that the provinces can no longer make laws that affect the Metis people or their interests. To delve more deeply into these constitutional mysteries would be to peek into the deep mysteries of legal magic that is constitutional law. The Daniels case should not be expected to produce quick and happy results. There is still the need to identify the Metis people who are constitutional ‘Indians’, an immense challenge since the emergence of claimants to Metis identity from parts of Canada where historically there has never been a need for a Metis policy or law. It must be pointed out that the federal court of appeal excluded Indians who are not included in the Indian Act definition, the ‘non-status Indians’ from its declaration on the meaning of s.91 (24). This is for ‘technical’ reasons and still leaves it open for the tens of thousands of Indians outside the federal reserve system to press their legal claims in court. All in all the analysis in Daniels suggests it has a good chance of not being overturned by the Supreme Court of Canada if the federal government seeks leave to appeal. But for the need to hold one’s nose at a basic mistake by the judges in misunderstanding the difference between Charter rights and Aboriginal rights, and the insistence to use the despicable and insulting term ‘half-breed’ the decision is one that deserves applause. Harry must be smiling. Paul Chartrand Metis Lawyer
Posted on: Sat, 19 Apr 2014 20:13:09 +0000
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