In an articulate commentary, Professor Signa A. Daum Shanks ruminates on the modern plight of Indigenous peoples and the rule of law, in light of a key 2016 court case about Métis status. Although the ruling is considered a ‘win,’ it raises more questions than answers.
When an Indigenous person enters the Canadian legal system, they are coming face to face with the establishment, or superstructure, that has a long history of perpetrating injustices against their people. Such was the 2016 Daniels v. Canada case, a highly contentious case that played out in the Supreme Court of Canada about Métis status.
Osgoode Hall Law School Professor Signa A. Daum Shanks considers the effects that have developed after the release of this pivotal case, which is, on the surface, considered a legal victory. She uses the case to delve deeply into the aftermath of colonialism, the modern plight of Indigenous Peoples and the rule of law. In doing so, she unpacks complex ramifications around the legal ruling. Her article, “The Wastelander Life: Before and After the Release of Daniel v. Canada,” was published in the Osgoode Hall Law Journal (Summer 2017).
This is Daum Shanks’ areas of expertise. She is a leader in the study of Indigenous Peoples and the legal profession, Indigenous slavery in Canada, the existence of Métis treaties, microhistory, competing Aboriginal claims, the role of Indigenous history as evidence and the future of Indigenous Peoples’ influence upon sustainable development.
Like Riel, Daniels sought to include the Métis in the Constitution
Harry Daniels (1940-2004) was an Indigenous leader, one of the founding members of the Saskatchewan Métis Society. He was twice elected the national leader of the Congress of Aboriginal Peoples.
Like Louis Riel, he sought to include the Métis in Canada’s Constitution. Fed up with historically inaccurate, non-Métis definitions of Métis as “in between” or the “middle ground” between Indigenous and French, he decided to take Canada to court to get judicial/legal recognition of this mislabelling.
“He wanted to make the point that Métis people had been misclassified for years, hurt by those actions and then denied the benefits such a classification should have provided,” Daum Shanks explains.
Daniels argued that when the nation of Canada came into being (1867), the Crown labelled the Métis as First Nations. But decades later, the country refused to admit that Métis were part of the original group in question, and failed to follow through with certain responsibilities.
Daniels, therefore, put forward three declarations to adjust modern understandings of the Métis:
- Métis and non-status Indians are “Indians” under section 91(24) of the Constitution Act, 1867.
- The federal government owes a fiduciary duty to Métis and non-status Indians.
- Métis and non-status Indians have the right to consultations and negotiations with the federal government respecting all their rights, interests and needs as Aboriginal Peoples.
Law professor analyzes the “win”
Although he passed away before the case concluded, Daniels won the legal battle: the court ruled that Métis and non-status Indians are “Indians” for the purpose of s. 91(24) of the Constitution Act, 1867. For this reason, the case is considered as a “win” and positioned as another successful chapter in the pursuit of reconciliation.
Daum Shanks, however, finds this a murky win. This ruling, she explains, means that Métis and non-status Indians are not ruled under the Indian Act – the principal statute through which the federal government administers Indian status. Métis people are not granted Indian status, in other words. Due to this lack of status, Métis people cannot live on reserves. Instead, Métis and non-status Indians should turn to the federal government for programs and services, which were not offered before Daniels v. Canada.
Daum Shanks notes that this ruling could lead to 200,000 additional people being recognized as Métis (since 200,000 people would now identify themselves as such) and 200,000 non-registered First Nations who will now live off-reserve. In this light, the decision could be seen as an incentive for Indigenous people to move off the reserves. This could undermine the economic viability of the reserves, Dam Shanks warns.
Some Indigenous scholars strongly question the “success” of Daniel vs. Canada, claiming that the ruling was rooted in a racist logic and it would mean a “road to nowhere” for many Indigenous people. Daum Shanks weighs in more prudently however, and argues that the wins of this case are hard to see.
On one hand, she recognizes some restorative value to the case. “Given the number of times courts have allowed the Crown’s view of history to prevail, Daniels v. Canada contains a sense of optimism. In this way, the ruling sends a strong message,” she says, although she also believes that early signs of progress don’t always last.
On the other hand, Daum Shanks points out that the decision reinforced the underlying problem that Daniels came to argue in the first place: Métis should define themselves, not be defined by the Court. In this way, Daniels v. Canada ultimately conflicts with Métis-based sources.
Daum Shanks believes that the case leaves the Métis in a kind of limbo. “In 1867, it might have been Canada that placed us there. But now, it’s the court’s definition of us that ensures we will remain in the Wasteland,” she writes.
Her article is a comprehensive and well-constructed resource for legal, history, Métis and Indigenous scholars.
By Megan Mueller, manager, research communications, Office of the Vice-President Research and Innovation, York University, firstname.lastname@example.org