By William Wicken
Last week the Supreme Court of Canada released its decision in the Daniels vs. Canada case. Writing for the court, Justice Abella declared that ‘Métis and non-status Indians are “Indians” under section 91(24).’ Much has already been written about the decision and its possible implications. Less well known are the historical arguments which were the foundation of the trial judge’s decision, and which the Supreme Court upheld. In this post, I discuss my involvement as an historian, and the questions of law, power, and intent that were at the heart of the case.
Two principal witnesses presented the historical evidence on behalf of the Congress of Aboriginal Peoples, the main plaintiff in the case. These witnesses were Gwynneth Jones and me. Both of us did original archival research and submitted written reports to the Court. My report was 171 pages, and Gwynneth’s report was similarly lengthy. Each of us also testified at trial before Justice Phelan of the Federal Court of Canada in May of 2011 and we were both cross-examined by federal lawyers. Afterward, the federal government presented their evidence, most of which was given by Professors Stephen Patterson and Alexander Von Gernet.
History as evidence
Why was this historical evidence important? The plaintiff sought to make the federal government recognize that they had a legal responsibility for Métis and non-status Indians. This would mean “that the Government of Canada can no longer disclaim responsibility and continue playing a game of political hot potato with the provinces over jurisdiction.” In making this argument, the Congress’s lawyers focused their attention on section 91 of the 1867 British North America Act. Continue reading