Clément Chartier is president of the Métis National Council.
On April 17, the Federal Court of Appeal in the Daniels case upheld a decision of a lower court judge that the Métis people are included in section 91(24) of the Constitution Act 1867 and therefore within federal jurisdiction. The federal government's longstanding position was that it had jurisdiction for Indians and Inuit but the Métis were a provincial responsibility. The result has been the exclusion of Métis from important federal supports for Aboriginal post-secondary education and health care and an overall absence of a coherent policy for addressing the issues of the Métis.
I recently wrote to the Prime Minister with a request for his government not to appeal the decision further. I did so in the belief that there was enough common ground for Canada and the Métis nation to work out practical and mutually beneficial arrangements to fulfill the federal constitutional responsibility for Métis. The following are three considerations I put forward for the Prime Minister's consideration.
Canada should not appeal the Daniels decision further because it is a win-win for Canada and Métis in terms of Métis identification.
The Métis National Council represents the historic Métis nation that emerged along the fur trade route in western Canada. While divided on the issue of whether Ottawa has jurisdiction over Métis, the federal government and the MNC both argued that consideration of Métis for constitutional purposes should be limited to the previous recognition of Métis by the Supreme Court of Canada based on ancestral connection to this historical community.
Indeed, the Federal Court of Appeal did restrict the inclusion of Métis in 91(24) of the Constitution Act – which defines "Indians, and lands reserved for the Indians" as federal jurisdiction – to the historic Métis community. I advised the Prime Minister that this aspect of the ruling confirms the Métis as a definable group limited in number. Moreover, Canada and the MNC and its provincial affiliates have already made considerable progress in operationalizing Métis identification criteria through the establishment of membership registries and now the verification of the system by the Canadian Standards Association.
Metis registries ensure that only those who meet our own strict citizenship criteria will be registered. I hope that when considering the potential for an expanded relationship between Canada and the Métis Nation under 91(24), the Prime Minister takes into account the fact that the membership infrastructure is already in place for this to happen in a fiscally responsible manner.
Canada should not appeal the Daniels decision further because it is a win-win for Canada and Métis in terms of Court's affirming that the declaration had practical utility.
The Court's affirmation of a constitutional relationship should be seen as an opportunity to make strategic and meaningful investments that will advance Métis education, skills development, business development and participation in major resource and energy development projects, all of which fits squarely within the Harper government's jobs agenda. The infrastructure is in place for an expanded relationship under 91(24) in these areas in the form of a number of framework agreements we have with Canada. Putting flesh on these frameworks and building on the real track record of Métis organizations in these areas is surely within the interests of Canada and the Métis.
Canada should not appeal the Daniels decision further because it shifts decision-making to the courts.
While I welcome the decision of the Federal Court of Appeal on the Métis nation's special relationship with Canada, I favor working with the federal government to define this relationship through negotiated agreements. When there is no mutual will to negotiate, however, the courts inevitably become the only recourse.
As I expressed to the Prime Minister, I believe the time has come for he and his ministers to sit down with the Métis leadership to work out a constitutionally-defined relationship. I believe the time has come for his government to enter into meaningful negotiations with the leadership of the Manitoba Metis Federation to settle the outstanding constitutional obligations to the Métis people under the Manitoba Act 1870 as called for by the Supreme Court of Canada a year ago. Surely it is better to work out a relationship in practical and mutually beneficial terms than wait for more court decisions.