Chicken Little, Pandora[1] Et A. v. the Federal Court

There is a virus going around which incites selected journalists and commentators to lambaste the Courts for certain decisions, particularly constitutional decisions, and more particularly decisions about Aboriginal peoples. (For the moment I am refraining from saying “Aboriginal or treaty rights” for reasons that will become evident a short distance below.) It is always an advantage enjoyed by those who want to indulge in such lambasting not to have read the decision, or to have followed the proceedings, either in that Court or any other Court or any public inquiry or parliamentary committee that may be studying related issues. Indeed, the less the putative lambastor (one who lambastes) has read the greater advantage he/she enjoys.

I have the disadvantage of reading far too much, both in the way of legal judgments on such matters and parliamentary committees studying related (though significantly different) matters. This contributes to a severe tendency to say, “But that’s not what the judge (or a central character in the other for a mentioned above) said, and, if you’d read it you’d see he/she said quite the opposite. Plain as day!”

There are few recent decisions where this is exemplified better than in the journalistic fallout from Daniels v. Canada (2013 FC 6), decided in the Federal Court by Mr. Justice Phelan last week. If you don’t believe me when I say that reading puts a person at a disadvantage, try not to read the next case that comes along of great interest until you have fired off a few “think pieces”, as they used to be known in journalism. As regards Daniels I will limit myself to three examples of writers who had the supreme advantage of not being overly concerned with what Phelan J. actually said. I won’t mention the names of the journalists whose work I’m discussing. Those who really want the names can either google the terms I report or just ask me.

The late Harry Daniels and several other people, including his adult son and the Congress of Aboriginal Peoples asked the Federal Court to declare that “Métis and non-status Indians [MNSI] are Indians within the meaning of the expression “Indians and lands reserved for the Indians” in ss 91(24) of the Constitution Act, 1867. They also asked the Court to declare that the Canada has a fiduciary obligation to the MNSI and that the MNSI have a right to be consulted on matters affecting them. The Court, 19 years after they were first asked say “Yes, Métis and non-status Indians are Indians within the meaning of ss 91(24)” and dismissed the other two questions on the ground that they are ancillary.

A number of journalists, commentators and bloggers, on hearing a highly truncated version of this jumped up and down, some for joy, more to try to stamp out what that nasty, irresponsible judge had said. Interestingly, those who jumped for joy had fallen into the same mistaken rendition as those who jumped with disdain. The wing nuts were opposed to “granting” new Aboriginal rights while the progressives that it was a good idea.

One conservative journalist predicted that the number of Aboriginal people in Canada could double before very long. How would we ever know? Nothing that Phelan J said obligates the federal government to put MNSI on a registry or band lists or any other record. Census data on affiliation is voluntary.

The most dire prediction from the Chicken Little camp was that the cost of “servicing” this large increase would be an enormous burden on the national debt. Likewise, a progressive online journal declared that, as a result of Daniels, more people would have Aboriginal rights with the implications that that was wonderful. Phelan J was most emphatic that Daniels is not about Aboriginal or treaty rights under ss 35(1) of the Constitution Act, 1982 nor about any Charter right. He acknowledged that the plaintiffs might come back and ask for more at a later time but Phelan J was of the opinion that that will be then and this is now. [My emphasis.] No less important, he pointed to the two SCC decisions on “existing Aboriginal rights” of Métis, Powley and Blais which explored Métis harvesting rights some years ago. The Court specified that a person identifying as a Métis had hunting rights if (1) he identified as a Métis, (2) was accepted as a Métis by a particular Métis community and (3) that community has a connection with an ancestral community which had those rights in the early 19^th century. Mr. Powley met those conditions. Mr. Blais did not. Nothing Phelan J said added to or detracted from those two SCC decisions. Indeed, Phelan J asked, rhetorically perhaps, what he could possibly add to those Supreme Court decisions.

Lastly, will it cost more money? Nobody doubts that “non-status Indians” is already “constitutional Indians”. They simply lack “status” under the Indian Act. Governments have refused to expand the range of services to more “Indians” for many years; nothing in the Constitution requires them to do so. On the other hand, there has been, in the Federal Cabinet, a minister with responsibility as the “Federal Interlocutor for Métis and Inuit” for many years now. And, following the last election, that position was moved from being a branch of the Privy Council Office to becoming a program within the Aboriginal Affairs Branch.

As a follow-up to these dire predictions, one member of the Chicken Little school had an item in the Saturday Globe saying that Pierre Trudeau had it right in 1969 – forced assimilation was the answer. That had been Preston Manning’s argument against ratifying the Nisga’a treaty in 2000. He emphatically says that, in 1969, “the Indians” wanted the Indian Act repealed (unqualified). George Manuel, whose biography I co-authored in 1973, said that he sat through most of the hearings prior to the 1969 White Paper and “not one Indian” asked for the Indian Act to be abolished without putting something else in its place. Perhaps the journalistic emphasis on history does not extend back into history?