The Federal Court of Appeal is being asked to overturn a historic victory that had granted Métis and non-status Indians the right to be treated as "Indians" under the Constitution Act.
After 12 years of legal wrangling, the case finally went to trial in May 2011. It took the Federal Court judge a year and a half to release his ruling that approximately 600,000 Métis and non-status Indians fall under federal jurisdiction. The decision meant they could negotiate access to federal programs and services long denied to them.
'The Métis and non-status Indian people, lacking even the protection of the Department of Indian Affairs and Northern Development, are far more exposed to discrimination and other social disabilities. It is true today that in the absence of federal initiative in this field they are the most disadvantaged of all Canadian citizens.' — Federal Court Judge Michael Phelan, quoting government documents
But this past spring, the federal government appealed. It said the decision to do so was not taken lightly and came after careful consideration. The appeal hearings wrapped up Wednesday.
"What they're doing is putting off the inevitable," said Ron Swain, the national vice-chief of the Congress of Aboriginal Peoples, or CAP, in an interview with CBC News. "We won the very first time. We're going to win in appeal. We'll win all the way to the Supreme Court of Canada. Eventually our government has to sit down and negotiate."
Métis and non-status Indians have argued that because neither the provinces nor Ottawa would accept jurisdiction, they fell through the cracks.
"It's very hard to make progress when you don't have proper schooling, when you don't have proper health care," said Joseph Magnet, the lead lawyer representing CAP at the hearing. "And we're very hopeful that the court will agree with us about that and that this will provide the stimulus needed for change."
The trial judge highlighted, in his 175-page judgment, the real effects of a lack of status, when he quoted an internal government document on the matter: "The Métis and non-status Indian people, lacking even the protection of the Department of Indian Affairs and Northern Development, are far more exposed to discrimination and other social disabilities. It is true today that in the absence of federal initiative in this field they are the most disadvantaged of all Canadian citizens."
The federal government lawyers, however, in submissions at the hearing Tuesday, argued that the trial judge erred in his judgment and that the framers of the Constitution did not intend Métis to be part of Section 91(24) of the act, which spells out that "Indians" are the exclusive jurisdiction of the federal government.
The case dates back to 1999 when well-known Métis leader Harry Daniels, along with several non-status Indians, took the federal government to court, alleging they were being discriminated against because they were not considered "Indians" under the Constitution. Daniels has since died, but the case continued and many believe it will end up at the Supreme Court.
"There's not a one-size-fits-all solution. It requires some fortitude, some imagination, some resources, some goodwill and some hard work," lawyer Magnet said. "And apparently the government needs also a court to tell it to get started."
CAP National Chief Betty Ann Lavallée said in a statement Wednesday that she is confident of a win, but lamented that the government continues to fight.
"I ask Prime Minister Stephen Harper to stop listening to his justice advisers, and keep the promise that he made to us in 2007 at our annual general assembly when he stated that ... the forgotten peoples of Canada cannot be forgotten or ignored any longer," she said.
"I believed then that he wanted to do the right thing and I want to believe in him now."