Looking beyond Daniels

    Upcoming conference brings together academics and community members to look beyond the law at the social and political implications of the Daniels decision.

    By Bridget Stirling on January 24, 2017


    In April of 2016, the Supreme Court of Canada ruled on the Daniels case, which had been making its way through the courts for 17 years. The decision, on its surface, seems simple: Métis and non-status Indians are ‘Indians’ under Section 91(24) of the Constitution, meaning that they fall under federal jurisdiction.


    But the case has far-reaching consequences, particularly for the relationships between Métis people and provincial and federal governments (and associated structures) and for the ongoing debate about claims to Indigenous identity.


    “Daniels is a landmark legal decision because it stops the jurisdictional table tennis match that was being played between provincial and federal governments. The Métis were the ball, and they were being whacked back and forth by these two levels of government who would deny responsibility for them.” — D’Arcy Vermette

     

    This week’s conference, “Daniels: In and Beyond the Law,” hosted by the Rupertsland Centre for Métis Research (RCMR) in partnership with the Faculty of Native Studies, will explore some of these themes. Nathalie Kermoal, the centre’s director and Native studies associate dean (academic), says, “Most analyses have focused mainly on the legal aspects of the decision. The goal of this conference is to emphasize other issues and look more closely at the social and political impacts of the decision, focusing more specifically on identity, membership and university registration.”


    Native studies associate dean(research) and assistant professor D’Arcy Vermette, whose research focuses on constitutional and Aboriginal law, notes that “Daniels is a landmark legal decision because it stops the jurisdictional table tennis match that was being played between provincial and federal governments. The Métis were the ball, and they were being whacked back and forth by these two levels of government who would deny responsibility for them.”


    This lack of jurisdictional clarity has meant that over time the Métis have often turned to provincial partners, rather than federal, to get necessary services and supports, leaving Métis with fewer resources than status First Nations.


    “In the immediate term, Daniels could perhaps open new funding streams for Métis organizations and improve access to scarce resources for Métis people,” notes Native studies and political science assistant professor Adam Gaudry. “Over the longer term, I think many Métis are hopeful that this will allow us to engage on a nation-to-nation footing with the Canadian government.”


    More than jurisdiction


    Although the decision is quite specifically about jurisdiction, the case has often been seen as being about more than simply which government is responsible for Métis relations, says Gaudry.


    “Daniels is interesting. Although it is often seen as a Métis rights case, it deals primarily with jurisdiction, determining which branch of Canadian government is responsible for working with the Métis Nation.” He adds, “Métis Aboriginal rights have a different test, which is defined in R. v. Powley.”


    The Powley test, which sets out three criteria for the understanding of Métis in Section 35 of the Constitution, sets out a much narrower definition of who is Métis than the Daniels decision.


    Faculty of Native Studies interim dean Chris Andersen, whose most recent book, Métis, focuses on Métis peoplehood, says the two decisions have created confusion and debate about who is entitled to claim Métis identity.


    “The law possesses a broad cultural power in Canadian society, which means that people will often look to the courts and their decisions for validations of their identities. Non-lawyers and legal actors in particular often read things into court decisions (and judicial wording) not intended by judges.” He adds, “In the case of this decision in particular, the Supreme Court made several comments that many folks have seized on as validating their particular understanding of Métis history and Métis identity.”


    One of the problems with understanding Daniels, says Vermette, is the court’s decision to avoid too narrowly defining “Métis” in determining jurisdictional responsibility, which is why it’s important to examine the decision from a Métis perspective.


    “This focus on mixing is troubling for Métis people who see themselves not as a mixing of races, but as distinctive political and cultural communities.” — D’Arcy Vermette

     

    “Examining Daniels from a Métis perspective helps in identifying how the ‘Métis’ are constructed in law. While the court tries not to venture into a restrictive definition of ‘Métis,’ the decision tends towards characterizations of ‘Métis’ in terms of racial mixing. This focus on mixing is troubling for Métis people who see themselves not as a mixing of races, but as distinctive political and cultural communities.”


    The implications of Daniels for the broader conversation about Métis identity are far-reaching. While it does not change the definition of who is Métis under Section 35, it does affect how people may “read” claims of Métis identity, especially when it comes to public services such as education or health care.


    “Often, the end users of important court decisions ‘read’ into the decision different things depending on their employment and professional training,” Andersen explains. This reading will affect social understandings of who is Métis, even if legal definitions and Métis definitions of their own peoplehood remain unchanged.


    Daniels on campus


    One area in particular that will be explored at the conference is the impact that Daniels may have on post-secondary education. Andersen notes, “This decision may have an enormous impact on university campuses—or not—but what we do know is that further discussion on this issue will be crucial.”


    The University of Alberta’s dean of students, Andre Costopoulos, says that although Daniels does not have significant direct implications for post-secondary institutions, it is informing the debate on campuses.


    “What the decision says, broadly, is that you can’t have a whole class of people who don’t have clear recourse or access to redress or justice or to equity.” —Andre Costopoulos

     

    “It reflects changing societal attitudes, and those changes are reflected in the universities. What the decision says, broadly, is that you can’t have a whole class of people who don’t have clear recourse or access to redress or justice or to equity. Universities need to be at the forefront of that change. Our policies and our practices, and the outcomes that they produce, have to be in line with our values, and our values are equity, access, diversity.”


    Like most universities in Canada, the U of A uses a self-identification model, which is contentious among Indigenous communities.


    Costopoulos explains, “It’s a question of resource allocation and a question of creating equity. We recognize that historically there is a lack of equality of opportunity, and that’s an injustice. We want to remedy that, so we want to create equity. That means we need to compensate in some ways by additional funding, access, bridging programs and so on. That means there are resources to allocate.”


    The allocation of those resources forms part of the debate over identity claims within Indigenous communities, with questions regarding how communities define membership and therefore access to those programs and supports. And though Daniels hasn’t changed the legal rules, it does feed into those arguments over how to decide who belongs.


    What it comes down to, says Costopoulos, is listening to communities and understanding how university policies and practices are affecting them, including young people and their access to higher education, and how those policies and practices reflect communities’ understanding of belonging.


    This practice is something Gaudry hopes will be reflected in the federal relationship with Métis people.


    “Like all court cases, how these decisions get taken up and how they are put into policy often involves extensive interpretation (and ideally negotiation as well). Daniels has some potential to reconfigure Métis-Canada relations, but it requires the Government of Canada to approach the Métis people with the same goodwill we've always been willing to show to them.”


    Looking forward


    Kermoal is excited by the possibilities the conference will bring in the exploration of these themes.


    “Two of RCMR's mandated research areas are contemporary issues and developing research and analysis capacity on current topics and general policy areas. The conference is the perfect forum to start a dialogue but also to explore the social and political implications of the Daniels decision. By giving voice to academics, Métis organizations and community members on such an important issue, we hope to be able to identify future research directions.”


    Andersen shares this hope and says that RCMR and the Daniels conference reflect the strength of the Faculty of Native Studies.


    “The Faculty of Native Studies is one of the top Indigenous studies units in the world, and we have a number of scholars who have been at the forefront of the kinds of identity issues at play in the Daniels decision. As well, we have strong relationships with our colleagues across Canada and the United States. Part of the reason the conference has the lineup it does is due to those relationships.”


    In the end, Gaudry hopes, the conference will offer insight into what comes next.


    “I think this conference will provide a multitude of perspectives on the impacts of Daniels—from the legal outcomes of the case, to the policy outcomes, to how it is being interpreted by Métis and Canadian civil societies. It's a multifaceted decision whose outcome is not yet entirely known.”