Back at the turn of 1980, federal-provincial
negotiations towards the framing of the Constitution Act, 1982 were beginning
to get hot and heavy going with respect to certain provisions of the proposed
legislation.
At the time, I was working in the
Saskatoon Regional office of the Federal Department of Justice and one of one
of my colleagues and I were keenly interested on what was going on during the
negotiations concerning: the rights and
jurisdiction of Quebec; the rights of French-speaking minorities across Canada (Saskatchewan in particular), and the rights of Indians (and Inuit) in the proposed
legislation , particularly, since my colleague dealt with Indian related issues
addressed to our office by the Saskatchewan Branch of Indian Affairs and
Northern Development located in Regina.
One of the contentious provisions
was section 35 that addressed the aboriginal and treaty rights of the aboriginal
peoples. The proposed section 35(1) read:
“The aboriginal and treaty rights
of the aboriginal peoples of Canada are hereby recognized and affirmed.”
A number of provinces fearful
that the proposed wording would throw the monkey wrench into provincial and
interprovincial resource-based economic development projects which would cross
the traditional hunting, fishing and gathering grounds reserved to Indians
under to the terms of the numbered treaties.
In the end, a compromise solution
was reached by inserting the word “existing”.
By inserting this word, it was
believed this would avoid being confronted with unexpected surprises through the
revival of ancient land claims that were thought to have been extinguished
under the numbered treaties.
Hence, the final wording of the
section reads:
35. (1) “The existing aboriginal
and treaty rights of the aboriginal peoples of Canada are hereby recognized and
affirmed.”
But, for my colleague and I that
was not the end of the issues concerning the section. In particular, we were
struck by the wording of section 35(2). that provides the definition of the
phrase “aboriginal peoples of Canada”?
The section reads:
35. (2).In this Act,” aboriginal
peoples of Canada” includes the Indian, Inuit and Métis peoples of Canada.
My colleague and I could not quite
figure out how and why the Métis people ended up being included in the definition.
We could not think of any
aboriginal rights to hunt fish and harvest the flora which would have existed
prior to the arrival of the newcomers, since by definition, the Métis did not exist prior to the newcomer’s arrival.
Indeed, as the Supreme Court of
Canada pointed out in a case involving these rights subsequent to the enactment
of the Act, aboriginal rights came into existence upon first contact with the
newcomers and the Métis could not have had such contact with the
newcomers.
Likewise, the Métis could not have had aboriginal title to lands
because this title crystallised upon the newcomers’ assertion of sovereignty
and there were no Métis, prior to the arrival of the French who first
asserted sovereignty over New France or in Rupert’s Land on which in 1670 the Crown granted the Hudson’s Bay
Company the right to trade throughout the territory.
Then at one point, we started
hearing from colleagues close to the
action in Ottawa, the story the Métis had managed to get themselves added to the
definition in subsection 35(2) by lobbying Jean Chrétien, who at the time was our Minister of Justice and
the Prime Minister’s point man in the ongoing negotiations on the repatriation
of the Constitution and in the framing of the proposed legislation.
What we were hearing was that the
Métis asked Mr. Chrétien not to deny them their chance to have their day
in Court to assert aboriginal rights as the Indians and the Inuit would and that, if they failed, that would be the end of
the matter.
Mr. Chrétien, a man with a big heart for the aboriginal
peoples, and for the underdog, bought the argument and agreed to insert the Métis into the definition of “aboriginal peoples of
Canada”.
Surely, if one of the facts
stated in 35(2) was wrong and consequently a particular right under section
35(1) did not exist, the provincial and federal parties to the negotiations
would not have put them in. It was not for the courts to go behind the wording
of the two sections
The courts had to give full
effect to the wording of section 35(1).
The Powley case
And this they did in the Powley case decided by the Supreme Court
of Canada in 2003.
Steve and Roddy Charles Powley, members
of an Métis community near Sault Ste. Marie, were charged
under Ontario’s Game and Fish Act with (1) unlawfully hunting a moose without a
hunting licence and (2) knowingly possessing game hunted in contravention of
the Act.
The defendants pleaded their
aboriginal right to hunt for food and that Ontario was breaching this right
without justification. They were acquitted by the trial judge and the
acquittals were upheld by the Superior Court of Justice, the Court of Appeal
and finally by the Supreme Court of Canada.
However, in order to reach the
decision to uphold the acquittal and to give effect to section 35(1), the
Supreme Court had to skate around the original formulation of the test that the
right in question must have existed on the day of contact. To do otherwise
would have amounted to the Supreme Court refusing to give effect to the rights
of the Métis section 35(1). If section 35(1) states that the
Metis have existing aboriginal rights, than the Court must somehow find them.
And so it did on the ground that “ the test
must be adjusted to take into account the post-contact
ethnogenesis of the Métis…This modification is required to account for the
unique post-contact emergence of Métis community, and the post contact foundation of
their aboriginal rights.”(Italics mine).
The phrase post-contact ethnogenesis being another way of saying that the Métis became an aboriginal people sometime after the
arrival of the newcomers and by my reading of history after the Crown asserted
its sovereignty
Hence, the scenario said to have
been put by the Métis to win over Mr. Chrétien’s acquiescence
that might possibly even have
been in accord with his own thinking to give “une chance pour les petits gars
de l’ouest” as he would have phrased it.
The Daniels case
Hence, it was no great surprise
when Supreme Court of Canada on April 14, 2016
rendered judgment in the Daniels case that the Métis along with the
Indian and the Inuit were indeed under Federal jurisdiction pursuant to section
91(24) of the Constitution Act of 1867.
As the Court pointed out, since
the Métis are defined
as one of the three aboriginal peoples
of Canada in section 35(2) it made no sense to exclude them from the purview of section 91(24)
And indeed one wonders why the
Federal government wasted monies for 17
years of court proceedings when, as a
matter of common sense the outcome was bound, almost guaranteed, to favour these two groups and did so at all
three levels of court,
And indeed, the decision hardly
came as a surprise to the government, since barely two days after the judgment
came down, on April 16, 2016, the government with great fanfare inked the
Canada- Métis Nation Accord. Henceforth, the Métis will be the beneficiary of government funding.
Non-Status Indians
Further, the Court also rendered
judgment in favour of the other plaintiffs, the so-called “non-Status Indians” and
held that they too were Indians within the meaning of section 91(24).
The ruling makes eminent sense
since they have been deprived of government funding simply because while the
government considered them to be Indians, they failed to meet the criteria
prescribed in the Indian Act in order to become or to remain registered as Status,
despite the fact that both the concepts of Status and non-Status and the criteria
established to distinguish between the two had been pure inventions of the
government.
After the enactment of the
Constitution Act, 1982, surely the fact that non-status Indians and the Métis had to be under Federal jurisdiction was hidden in
plain sight.
In the result, but in this
instance without any fanfare on the part of the government, the non-Status
Indians will also become the beneficiaries of government funding.
And that is not all
The Court upheld the dismissal of
two other declarations sought by the appellants; namely, that
b) “Métis and to non-status Indians 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 all their
rights, interests and needs as
Aboriginal peoples.”
The Court did not so much uphold
the dismissal of these two declarations because they were devoid of merit but
because there was no practical utility to grant them at this juncture.
More specifically, the Court attributed
the lack of utility to the facts that
a) With respect to the
declaration sought in foregoing paragraph a) because the Court had already
issued two judgments that support the declaration sought; and
b) With respect to the
declaration sought in the foregoing paragraph b) because three decisions
rendered by the Court already recognized a context-specific duty to negotiate
when aboriginal rights are engaged.
A concluding Note: The Federal Government, The Metis,
the non-Status Indians
The federal government’s decision
and willingness to leave these two groups in no men’s land between the federal
and the provincial jurisdictions was dastardly and unconscionable.
This combined with the Daniels
case provide a perfect illustration of
the successive Federal governments’
chronic failures a) to think through
aboriginal issues based on reliable and
valid empirical evidence analytically, methodically, carefully,
systematically, and b) to put together a
rationally coherent plan to direct and administer the portfolio of Indigenous affairs with insight,
foresight, one that is capable of addressing both the issues of the moment as
well as the long term issues to help achieve the government’s short and long term objectives, whether these
are ideally attained through co-operation with the aboriginal peoples or, where
necessary, without such co-operation,
where in the broader short and long term
interests of Canada and of Canadians as a whole, including the peoples identified in section 35(2), are
at stake and must be protected, promoted
and pursued for the benefit of all.
Looking to the future
Since section 35(1) came into
force, the Supreme Court has yet to meet a case involving aboriginal and treaty
rights that it did not fancy and as the intensity of its fancy increased with
time, so did its propensity to increase the scope and contents of these rights,
while enlarging the contours and adding to the contents of the duties and obligations
it imposes upon the federal and provincial governments in dealing with these
rights.
Returning to the Daniels case, by
one estimate, the decision will add over 600,000 Métis and non-status Indians to the federal payroll. How
many over 600,000, remains to be seen.
Certainly, the Court’s refusal to
define who is a Métis has also, potentially left the door open to a
great deal of litigation on this issue.
In this connection, it must be
remembered that In addition to the new beneficiaries of the Daniels case, the
government still has the task of getting rid of the remaining gender based
discriminatory provisions of the Indian
Act and thereby adding yet another group of beneficiaries under the rubric of
Status Indians, whose numbers have yet to be determined.
Commenting on the Daniels case,
the Prime Minister declared “This is a landmark ruling that will have broad
consequences and impacts” adding that the government will need to study what
those impacts might be. Thus, once again, the Prime Minister, as is his wont,
made a statement of fact in ignorance of the facts that provide the specifics
of the broad consequences and impacts.
To top it all, the Prime Minister
then, as is also his wont, grandly declared: “I guarantee you one thing: The
path forward will be together as we move forward.”
Canadians can now look forward to
living with a federal public treasury burdened, with extremely heavy and potentially,
exponentially increasing financial responsibilities to finance the management
of aboriginal affairs of this country, without any relief in the foreseeable
future and, I venture to say, beyond.
Whether these expenditures can and will
achieve the positive results desired by the Canadians whose taxes finance the
government expenditures remains to be seen.
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