OTTAWA — A briefing note prepared for Aboriginal Affairs Minister Bernard Valcourt sheds light on how the federal government plans to respond if the Supreme Court rules in favour of recognizing Métis and non-status Indians in the Constitution.
“Expectations on access to federal programs are high,” said the memo prepared June 13, 2014 and released to the Star in response to an access-to-information request.
The Supreme Court of Canada is expected to hear arguments from the Congress of Aboriginal Peoples and the federal government — as well as several other interested groups — this October in a case first launched in 1999 by Métis leader Harry Daniels.
The groups representing Métis and non-status Indians argue they are being discriminated against because the federal government does not consider it has a constitutionally defined responsibility to them in the same way as it does to First Nations and Inuit peoples.
It therefore does not grant them access to the same programs and services.
The Federal Court handed them a historic victory in January 2013 when it ruled that both Métis and non-status Indians should be recognized as “Indians” under the Constitution Act, which created the potential for some 600,000 aboriginal peoples living away from reserves to gain access to government benefits.
The Federal Court of Appeal walked that decision back a bit in April 2014, when it upheld those rights for the Métis but said the recognition of non-status Indians should be determined on an individual basis.
The memo obtained by the Toronto Star was written two months later, at a time when the Conservative government was still figuring out whether it would appeal that decision to the Supreme Court, and it outlines a number of “next steps” that would take place if it decided to let the Federal Court of Appeal ruling stand.
Ultimately, the Congress of Aboriginal Peoples decided to appeal — in the hopes that it would regain the recognition it won from the lower court — and the federal government launched a cross-appeal.
But the content memo suggests what would happen in the event that the Supreme Court rules against the government, and stresses the importance of moving quickly.
“Relations could be strained if Canada is not willing to quickly address the (Congress of Aboriginal Peoples and the Métis National Council)’s expressed desire to sit down and discuss program eligibility,” says the memo outlining the relationship and communications implications for a decision not to appeal.
“Next steps could include a multi-departmental review of federal programs to determine whether they are susceptible to charter equality or human rights challenges if they are not accessible to Métis. Discussions with provinces to clarify what Canada’s and the provinces’ roles and responsibilities are for the Métis could also be undertaken,” says the briefing note.
Betty Ann Lavallee, the national chief of the Congress of Aboriginal Peoples, said her group has long been asking Aboriginal Affairs to sit down and talk about these issues “so that we would be able to manage some of the expectations.”
“It’s really sad, because a lot of these issues could have been well on their way in discussions,” Lavallee said Friday.
Clément Chartier, president of the Métis National Council, said the memo shows the federal government quietly acknowledges a ruling favouring the Métis, whether or not it extends to non-status Indians as well, would mean a change to the status quo.
“I think they realize that they will have to do something,” Chartier said Friday.
Valcourt was not available for an interview Friday, but his spokeswoman, Andrea Richer, emailed a statement that said the earlier decision “raised complex legal issues it was prudent for Canada to obtain a decision from a higher court.”
They are one of the three aboriginal peoples in Canada, along with Inuit and First Nations.
They are people who identify as First Nations, but are not entitled to be registered as such with the federal government under the Indian Act.