Section 91(24) and Canada's Legislative Jurisdiction with Respect to the Métis

Abstract

Section 91 (24) of the Constitution Act of 1867 provides that the federal government has the legislative jurisdiction over “Indians and lands reserved for the Indians.” However, the Federal government has consistently held that the Métis fall within the authority of Provincial governments. This has resulted in the anomaly of the Federal government presently claiming jurisdiction for two of the three Aboriginal peoples of Canada—the Indians and the Inuit—while there is a de facto jurisdictional vacuum in respect to the Métis. With the Federal government’s assertion of jurisdiction over Indian and Inuit issues has come the Federal allocation of lands and services to persons of those groups. The Métis in the meantime are mostly left to fend for themselves. While the author is aware of the distinction between legislative jurisdiction and responsibility over Métis affairs, this paper focuses on the former in exploring the matter of Federal jurisdiction over the Métis under section 91(24) of the Constitution Act of 1867. The starting point for this analysis is the Supreme Court decision in Re the term ‘Indians’ which held that examining documents contemporaneous to Confederation is central to a determination of the scope of the term. As such, much of this article focuses on examining contemporaneous material including the British Parliamentary Papers. It is argued that the reports examined show that the term “Indians” was often used in a generic sense including the Métis. This article also looks at pre and post Confederation legislation dealing with Aboriginals and posits that such legislation generally defines “Indians” broadly enough to include most Métis. Additionally, Métis land grants and treaty entitlements are examined, and it is argued that at least some Métis were considered “Indians” for the purposes of accessing rights under a number of treaties. The article reasons that the inclusion of Métis under section 91(24) of the Constitution Act of 1867 is consistent with the approach taken by the Supreme Court in Re the term ‘Indians’ and is consistent with a purposive approach to the constitutional interpretation of s. 91(24) which was to have one central authority responsible for the Aboriginal inhabitants of the Dominion. While the acceptance of Federal jurisdiction over issues pertaining to the Métis is expected to create some complications pertaining to the Métis in Alberta, this article forwards the position that these can and should be overcome in the interest of legal consistency and in the interest of furthering the equity of services and rights available to the Aboriginal peoples of Canada.