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The Supreme Court of Canada building in Ottawa, April 14, 2015. (Sean Kilpatrick/THE CANADIAN PRESS)
The Supreme Court of Canada building in Ottawa, April 14, 2015. (Sean Kilpatrick/THE CANADIAN PRESS)

Chris Andersen

The Supreme Court ruling on Métis: A roadmap to nowhere Add to ...

Chris Andersen is a Métis professor at the University of Alberta, Faculty of Native Studies

In its long awaited judgment, the Supreme Court of Canada handed down its decision in the “Daniels” case. This case was brought by the late Métis leader, Harry Daniels, who was centrally responsible for the inclusion of “Métis” in section 35 of the 1982 Constitution Act. As jurisprudential scholars, lawyers directly involved in the SCC case and relevant policy actors pore over the paragraphs of a surprisingly short decision, they will no doubt have much to say about the definition of Métis fashioned to include both the Métis people of Red River and those who have begun to self-identify as Métis in recent years, based on their “mixed ancestry.”

I’ve joked that the logic contained in this court decision amounted to a coming of the zombie apocalypse since it raised from the dead the racialized logic of “Métis-as-mixed” that an earlier 2003 SCC case, R. v. Powley, had already attempted to put a stake in.

But as it turns out, zombies are not so easily killed.

The important thing to understand about court decisions – especially those written by the Supreme Court of Canada – is that they are beginnings as much as they are endings. That is to say, court decisions must be understood as imparting important – if sometimes necessarily vague and often maddeningly contradictory – policy principles that have the power to enormously impact the dynamics of future policy relationships.

This potential is why, in reading the actual court decision, I was so puzzled to see the SCC repeatedly fall back on a racial “Métis-as-mixed” logic to understand Métis identity – rather than one based in peoplehood. Here, the Daniels court held that distinctive historical events, leaders, territories, economies, cultures and political actions or mere mixed aboriginal and non-aboriginal ancestry were equally valid for understanding the term Métis.

Moreover, in reinterring a deeply racist logic partially laid to rest in the earlier Powley decision (a decision about rights rather than jurisdiction), this decision has created a patchwork of contradictions that will beguile aboriginal policy dynamics pertaining to Métis and non-status Indians long into the future.

Having said all of this, where does the Daniels decision leave us, exactly? Clearly, the decision’s findings are significant, and expectations from aboriginal organizations that already hold policy relations with the federal government will no doubt be high. Is the federal government now on the financial hook for provincial Métis organizations who receive provincial funding? What about current, federally funded Métis training-to-employment programs – will these be expanded?

On a different scale, if Métis identity really is simply about mixed aboriginal and non-aboriginal ancestry, can a distant ancestor located in an archival document or even a DNA test now serve as bases for adjudicating claims of Métis identity rather than culture, community or link to the Métis people?

If past experience with SCC decisions has taught us anything, the myriad interveners involved in this case are already interpreting the decision in light of their existing and future policy needs, and will use it to shape their future dealings with governments. The federal and provincial governments are doing the same. Prime Minister Justin Trudeau tweeted Thursday that the government of Canada plans to respect the Daniels decision and will work toward reconciliation – let’s hope that governments are clear on what it means to reconcile with historically rooted indigenous peoples rather than more recently identifying individuals.

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