The
Daniels decision hasn’t been out for 24 hours yet and already there is mass
confusion about what it does and does not say. Despite the buzz in mainstream
and social media, it does NOT make Metis and non-status Indians “Indians” under
the Indian Act. The case also does
NOT give Metis and non-status Indians any “rights”. This wasn’t a case about
hunting or fishing. So, for all the emails, Facebook messages and inquiries I have
received from people asking if I can help them become registered (status) Indians
or whether they can get free education now – this case does not do that. While the case itself was an important one, the actual decision imported more problems than it resolved.
It
was a case designed specifically to answer the question about whether Metis and
non-status Indians are included in the definition of the term “Indian” in
section 91(24) of the Constitution Act 1867
(also referred to as British North
America Act). The Supreme Court of Canada’s (SCC) answer was “yes”.
Sections
91 and 92 of the Constitution Act 1867 set out the jurisdictional powers
of the federal and provincial governments. Jurisdiction means an authority or
power over a certain area. Generally, it does NOT create a legal obligation to
act or legislate in that specific area. These individual areas of jurisdiction
are referred to as “heads of power”. For example, the federal government has
jurisdiction over things like criminal law, divorce law, banking and the
military. The provinces have powers over hospitals, charities and taverns. The
head of power at issue in this case is section 91(24) Indians and lands
reserved for the Indians.
It
should be remembered that this is NOT the first SCC case on what the term “Indian”
includes under section 91(24). In 1939, the federal government and province of
Quebec sought clarification from the court as to whether the term “Eskimo” now
referred to as “Inuit” was included in the term “Indian”. In that case, the
court used historical documents to demonstrate that while the Inuit were
unique, they were considered to one of many “tribes” of Indians. As a result,
the Inuit are considered “Indians” for the purposes of section 91(24) federal
jurisdiction. This did NOT mean that all Inuit were registered as Indians under the
Indian Act. In fact, section 4(1) of
the Indian Act specifically states:
4(1)
A reference in this Act to an Indian does not include any person of the race of
aborigines commonly referred to as Inuit.
The
term “aborigine” is not defined in the Indian
Act, but commonly refers to an indigenous person of a particular territory
or country –the original inhabitants. The question now is whether Canada will make Metis and non-status Indians a new group of "aborigines" to be specifically excluded from the Indian Act, like the Inuit.
Just because Metis and non-status Indians have been recognized as “Indians” for
the purposes of section 91(24) of the Constitution
Act 1867, this does not mean that they will ever be included in the Indian Act or registered as Indians. Nor
does it mean they will get a house on reserve, be considered treaty beneficiaries,
or access any other legal entitlement. Inuit do not live on reserves nor are they considered First Nations. It is unlikely that the federal government will put Metis on reserves either.
Remember, it is not the Indian Act that sets out rules and
regulations around “benefits” or “rights”. Whether or not Indian and Northern
Affairs Canada (INAC) grants a benefit or decides to recognize a legal right is
a matter of policy - i.e., a government decision made at Indian and Northern
Affairs Canada (INAC) usually in consultation with Justice Canada, Treasury
Board, the Prime Minister’s Officer and/or various other interested departments
like Fisheries and Oceans (if related to fishing right for example).
Despite
the fact that many of our rights are LEGAL rights protected by Indigenous laws,
treaties and agreements, as well as domestic and international laws – most often
the government lumps all “Indian” issues into generic policies that may not
reflect the extent of our legal rights at all. In fact, Canada’s most common legal
argument is that any “benefit” provided to Indians is out of the good will of
the government (a matter of policy) and not out of any legal obligation. This
is what the SCC referred to as “noblesse oblige” where the government
mistakenly thinks that Indigenous rights are a matter of charity or generosity
versus legal obligation.
What
this case will do is break through the jurisdictional “limbo” to which Metis
and non-status Indians have been relegated and force both federal and
provincial governments to include Metis and non-status Indians in their
consultation activities. While the court did not grant 2 of the 3 requested
declarations, it DID confirm that governments have a fiduciary duty towards
Metis and non-status Indians (duty to act in their best interests), AND that
they must negotiate with them and consult with them on decisions impacting
their rights.
That
is the most neutral thing that I can say about this decision. In EVERY other way,
this decision is one of the worst messes to come out of the SCC. While it may sort
out who is an Indian, it does nothing to address the problems faced by
Indians in accessing various federal programs and services. Remember,
Jordan River Anderson was a registered Indian child, under federal jurisdiction, yet the province and federal government BOTH refused to pay for his health
services and he died in hospital never seeing his home. Magically becoming an
Indian doesn’t resolve the ongoing federal-provincial dispute over coverage for
individuals living OFF reserve, let alone those normally resident on reserve.
On
the Indigenous rights front – inherent, Aboriginal and treaty rights - this case
is damaging.
To
my mind, the Daniels decision is less about reconciliation and more about
erasure of Indigenous sovereignty and identity. It takes John Ralston Saul’s
idea of “we are all Metis people” together with the newest Canadian slogan “we
are all treaty people” and opens the
floodgates to every person in Canada claiming a long lost Indian ancestor and
asserting their identity and control over our lands and rights. It has the
potential to effectively eliminate any real sovereignty or jurisdiction Indigenous
Nations have over our own citizens and territories. It does not bolster Metis
claims, but instead confuses them. It does not address the discrimination faced
by actual non-status Indians, but paints them with the Metis “mixed people”
brush. The very unique and specific circumstances of non-status Indians are completely over-looked in this decision.
We
have gone from sovereign Indigenous Nations - to one generic group of Indians -
to distinctions-based groups (Indian, Inuit and Metis) - and now back to Indians
– all for the express purpose of reducing us to an “interest group” of “Aboriginal
people”. This is not good for anyone. Certainly, no one asked us what we
thought. Once again, National Aboriginal Organizations are at the helm –
directing the pirate ship to ensure they get their cut of program funds for
their organizations. Their win is big – they’ll likely get increased funding to
set up new negotiating tables. For the Indigenous Nations on the ground – a new
burden has been placed on us – proving that the thousands of newly-minted,
self-identified “Indians” do NOT speak for us and do NOT have a say over our lands.
For those who have been wrongly excluded by government laws policy (like
Indigenous women and their children) – their new challenge will be to
distinguish themselves from the floodgate of false claims to come – a burden
not rightly borne by those who have already suffered so long at the hands of
government discrimination.
This decision, taken together with Trudeau's White Paper 2.0 (the nice version), means we have many battles ahead. Please read this decision critically - don't partake in the celebrations just yet.
