When Jason Madden was growing up in Northwestern Ontario, his uncles lost much of their livelihood as fishermen, because they were Métis, and the Canadian government did not recognize and protect their rights as indigenous people.
"I saw how the law was being used against my uncles and the people I grew up with," he said.
Today, Mr. Madden, 40, is a big-city lawyer specializing in Métis rights. He has argued about the scope of those rights in four cases – including whether they exist at all – before the Supreme Court of Canada since 2003. And the court has sided with the Métis, those of mixed aboriginal and European descent, in the first three.
On Thursday, the Supreme Court of Canada will rule in the fourth case, the biggest of them all – potentially redefining the place of 450,000 Métis and 200,000 or more "non-status Indians" in Canada. The case was launched in 1999 by a Métis leader, Harry Daniels, who has since died.
"This is the unfinished business of Confederation," Mr. Madden, who practices in Toronto, told The Globe and Mail. (He is representing the Métis National Council, which intervened in the case.) "Métis have been Canada's illegitimate children, the forgotten people."
At issue is Canada's 1867 Constitution, which gave the federal government jurisdiction over "Indians, and lands reserved for the Indians." The Inuit have been included in that definition since a 1939 Supreme Court ruling. But the Métis have been excluded, and say they have been denied benefits such as education and health programs, and prosecuted for exercising aboriginal rights to hunt and fish. The same exclusion applies to non-status Indians – those who identify as indigenous but lost their right to register with the federal government for various reasons. For instance, aboriginal women who married non-aboriginals lost their status until a 1985 legal change. Some of their descendants never regained Indian status.
If they win, the implications are large. At a time when the Liberal government has sharply increased funding to First Nations communities, and spoken of new, nation-to-nation relationships, a Supreme Court declaration that Métis, and possibly non-status Indians, are a federal responsibility, would be a political bombshell – adding the prospect of untold costs and complications to Ottawa.
A victory would give the groups a greater political claim to a seat at the various tables from which they are barred – including land-claims negotiations in several provinces. (The Federal Court of Appeal said the Métis deserve recognition; the Federal Court said the Métis and the non-status Indians should be recognized.) Until now, the groups have often been shunted back and forth between Ottawa and the provinces.
Legal experts not directly involved in the case say that if the federal government loses the case, it could argue (as it already has) that having legal authority over the Métis is not the same as being legally responsible for them; Ottawa can have powers without exercising them.
The federal government says that Métis were not meant to be included in the 1867 definition of Indians, and that there is no such thing as non-status Indians. It also says the entire case is irrelevant and dangerous.
"An abstract declaration … will not provide the solutions the appellants appear to seek, and would risk creating unforeseen consequences that would impede the ability of both orders of government to work together to achieve reconciliation," the federal government says in a legal filing at the Supreme Court.
But constitutional law specialist Joseph Magnet, who is representing the Métis and non-status Indians who brought the case to the Supreme Court, points to what happened as a result of a very similar 1939 case known as Reference re Eskimos. At that time, starvation was severe among the Inuit of Northern Quebec; Quebec said the Inuit were Ottawa's responsibility, and Ottawa said they were Quebec's.
"When it was decided that Canada was responsible, federal programming followed, which has dramatically transformed their lives," Prof. Magnet, who teaches law at the University of Ottawa, said in an interview.
"Without good schools, without access to postsecondary, without healthy classrooms, without culturally specific health care, kids can't develop, they can't learn, and so they become an underclass," Prof. Magnet said. And this has been the experience of the Métis and non-status Indians."
Mr. Madden's forebears in Rainy Lake and Rainy River were among 15 "half-breeds" accepted by Ottawa as part of an 1870s agreement called the "Half-Breed Treaty 3 Adhesion" – and before the ink was dry, he says, forgotten about. He hopes the case heralds a new era for the Métis people.
"It will have generational effects."