Aboriginal activist in front of the Supreme Court.
What is the legal definition of a status “Indian”? That was at the forefront of a lawsuit heard last week by the Supreme Court of Canada that has been stuck in the court system for 16 years.
In Daniels v. R, the plaintiff Harry Daniels, who was a founding member of the modern Métis Society of Saskatchewan and the Métis Association of the Northwest Territories, filed a constitutional challenge against the federal government in 1999.
Initially, the challenge was to get Métis and “non-status Indians” living off reserves, recognized as status Indians under the Constitution Act of 1867. Historically, both groups were excluded under the Act, meaning they didn’t fall under federal jurisdiction and weren’t part of the government’s obligations and benefits that are owed to status Indians.
See: Who’s a 'status Indian' and what does it mean?
This has caused these two groups great disadvantages, because if they didn’t fall under federal jurisdiction, their hardships were even greater than those of natives who did fall under federal jurisdiction, as they didn’t have access to the protections under the Department of Indian Affairs and Northern Developments.
It took 12 years just to get the case heard in federal court, too late for Daniels to find out if he would be successful as he died in 2004.
The plaintiffs asked the Federal Court of Canada to make two declarations:
- The Crown in right of Canada owes a fiduciary duty to Métis and non-status Indians as Aboriginal Peoples.
- The Métis and non-status Indian peoples of Canada have the right to be consulted and negotiated with, in good faith, by the federal government on a collective basis through representatives of their choice respecting their rights, interests and needs as Aboriginal Peoples.
It turns out, posthumously, that Daniels was partially successful before the case headed to the SCC.
The Federal court decision was a victory for the plaintiffs in 2013 and the court declared:
“Those persons who are Métis and those who are non-status Indians as set forth in the Reasons for Judgment are ‘Indians’ within the meaning of the expression ‘Indians and Lands reserved for the Indians contained in s.91(24) of the Constitution Act, 1867.’”
The Crown appealed the decision and the Federal Court of Appeal pulled back a little on the previous court’s decision and ruled that Métis are status Indians – but when it came to non-status Indians the court said it had to be assessed on a case-by-case basis.
Both parties took exception with the court’s ruling, and appealed to the SCC – for different reasons, of course.
The Crown is seeking to get the decision of both the federal court and the court of appeal reversed as they argue that Métis and non-status Indians weren’t meant to be part of the 1867 Constitution, which places natives under the jurisdiction of the federal government.
Daniel’s side argues, amongst other things, that the court of appeal made an error when it took out the reference to non-status Indians from the federal court’s declaration.
The SCC decision would affect 200,000 Métis and 400,000 non-status Indians in Canada who want the right to be designated as status Indians under the Constitution.
The ruling by the Supreme Court is expected within six to 12 months.