National Vice-Chief Ron Swain looks on as Congress of Aboriginal Peoples National Chief Betty Ann Lavallée discusses the impact of a Federal Court decision on Métis and Non-Status Indians.Adrian Wyld/The Canadian Press
The federal government ought to take a restrained view of the practical implications of the Federal Court of Canada's decision last Tuesday concerning the Métis and non-status Indians. It should not be hasty to conclude that the judgment necessarily requires action to confer massive new benefits, make large transfers of Crown land or create a whole new class of reserves. The plaintiffs themselves were not asking for access to specific programs.
The government had argued that the court should not deal with the case because it was too theoretical. As it turns out, the decision is indeed quite theoretical. Mr. Justice Michael Phelan wisely declined to impose on the Crown in right on Canada a fiduciary duty or a duty to negotiate with the Métis and non-status Indians.
This case was about the division of legislative powers, between the federal Parliament and the provincial legislatures, in the Constitution Act, 1867 – specifically about the meaning of the word "Indian" in the federal power to make laws about "Indians, and Lands reserved for Indians." Mr. Justice Phelan's survey of usage of that word before and after Confederation is persuasive; in the Constitution, "Indian" is not a narrow technical term. The definition in the Indian Act is another matter.
That need not mean that the federal Parliament has to start madly churning out new statutes about the Métis and non-status Indians. It is not, however, simply a neutral event. If the legislative power over aboriginals is a federal one, then the corresponding Crown prerogative – an executive power – is conferred on the federal government, which, Mr. Justice Phelan says, must accept the obligations of the Royal Proclamation of 1763 to protect all Canadian aboriginals, and their rights to land.
The upshot is that the provinces are essentially not on the hook for land claims. It is not obvious what the duties of the federal government to the Métis and non-status Indians will turn out to be; after all, the Proclamation is almost 250 years old – issued by King George III in somewhat different circumstances from today's – and not easy to apply. This decision is likely to be appealed at least once; then more specific lawsuits may well follow. If Mr. Justice Phelan's reasons do stand, the federal government must think about what its obligations may be, but not rush into any ambitious new programs.