Comment: Understanding the Daniels case
- Paul Chartrand | May 15, 2014
On Thursday, April 17, 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 Métis rights. It has nothing to do with the Indian Act or Indian status, nor with benefits for Indians defined by the Act.
The decision did not provide a definition of Métis or restrict the meaning of the term. Daniels is not about federal 'responsibility' for Métis. It is about the authority of the federal Parliament to make laws on the subject matter of 'Métis,' 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 Métis. There have been many instances of federal law that targeted Métis people, including a provision in the Indian Act of 1884 that prohibited Métis or Indian people from meeting in public to express disagreement with government authorities.
This 1884 provision shows that federal authority to make laws about Métis and Indian people includes authority to make laws about persons as well as about communities that have Treaty or Aboriginal rights and shows why it is wrong to confuse the idea of a 'Métis Nation' with the idea of federal law-making authority. The Daniels case does not define the Métis people in s.35 of the Constitution Act 1982.
The Daniels case is named after the late renowned Métis political leader Harry Daniels from Regina Beach, Saskatchewan, 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.
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 Métis 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 federal and not the provincial governments can enact 'Métis laws.' The case was necessary because federal governments often refused to accept the role of law-maker. Politically the case helps the potential for Métis representatives to advance negotiations with federal and provincial governments.
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 or to Saskatchewans Métis Act. Neither should it be believed that the provinces can no longer make laws that affect the Métis 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 Métis people who are constitutional 'Indians,' an immense challenge since the emergence of claimants to Métis identity from parts of Canada where historically there has never been a need for a Métis 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. I am dumbfounded by editorial comments such as that of the Winnipeg Free Press which states, "It rejected, however, the notion non-status Indians are in fact Indians under the Constitution." The court expressly recognized the opposite, which is why it held that a declaration on NSI would serve no purpose!
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 ones 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.