A much anticipated court case about Métis and non-status Indian rights is finally before the Supreme Court of Canada Thursday, 16 years after the legal wrangling began.
The top court is being asked to determine whether the approximately 200,000 Métis and 400,000 non-status Indians in Canada have the right to be treated as "Indians" under the Constitution Act and fall under federal jurisdiction.
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Métis and non-status Indians argue that because neither the provinces nor Ottawa have been willing to accept jurisdiction, they have fallen through the cracks.
"So you see them showing up on our streets in our major cities, not properly educated, without proper health care, without proper social services; the forgotten people, said Joseph Magnet, lead counsel for the Congress of Aboriginal Peoples (CAP).
The landmark case was launched in 1999 by prominent Métis leader Harry Daniels, but it did not go to trial until 2011. In an historic victory, the Federal Court ruled in the Métis and non-status Indians' favour, declaring they fall under federal jurisdiction, meaning they could try to negotiate access to federal programs and services.
'Most disadvantaged of all'
In his 175-page judgment the trial judge highlighted 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."
After the federal government appealed the ruling, the federal Court of Appeal upheld the lower court's ruling in favour of the Métis, but not in favour of non-status Indians.
Neither lower court gave the Métis and non-status Indians the additional declarations they were looking for: that if they do fall under federal jurisdiction, the federal government has a fiduciary obligation to them and an obligation to negotiate with them.
CAP appealed to the Supreme Court, hoping to get a final determination. In a sign of how big the stakes are, the case has 12 intervenors, including aboriginal organizations and provincial governments.
"We've been treated as a people without rights and basically as a third class aboriginal peoples," said Clément Chartier, president of the National Métis Council, one of the intervenors in the case.
Harry Daniels died in 2004. His son, Gabriel Daniels, says he believes his father was put on earth for this case, to fight for the betterment of his people.
"One of the big reasons he was here was to do this," Daniels says. "It's really an honour to see it unfold and I just hope it goes the way we want."
The federal government continues to argue that the framers of the Constitution did not intend Métis to be part of Section 91(24) of the Constitution, which spells out that "Indians" are the exclusive jurisdiction of the federal government.
And the federal government says in its factum that even if Métis and non-status Indians were to get that recognition, it would not compel Parliament to "exercise that legislative power in any particular way."
That is why CAP says it wants the court to also impose both negotiating and fiduciary duties on the federal government.
"Then they can't keep denying that they have to do something," says Dwight Dorey, CAP national chief.