Daniels v. Canada: In and Beyond the Courts ed. by Nathalie Kermoal and Chris Andersen

Reviewed by: Daniels v. Canada: In and Beyond the Courts ed. by Nathalie Kermoal and Chris Andersen Laura E. Forsythe (bio) Daniels v. Canada: In and Beyond the Courts edited by Nathalie Kermoal and Chris Andersen University of Manitoba Press, 2021 daniels v. canada: In and Beyond the Courts explores the Pandora’s box opened by the Supreme Court of Canada (SCC) decision that positioned “Métis-as-mixed”; the editors and authors ask the reader to consider the myriad complex issues that arose in its wake. After seventeen years of litigation, the SCC determined in Daniels v. Canada (2016) that Métis and Non-Status Indians were covered under s.91(24) of the Constitution Act, 1867. Section 91(24) states that the federal government has exclusive authority over Indians. The victory established the locus of responsibility for the Métis and at least theoretically ended the game of jurisdictional avoidance long played by the provincial and federal levels of government. The edited collection speaks to the decisions affecting Métis people’s history, genealogy, identity, law, and genomics while debating policy ramifications and legal outcomes. Part 1, “History,” the first section of the collection, outlines the history and lived experience of Métis after the Second World War, a time when they were ignored by all levels of government despite their need for programs and services. Tony Belcourt, who was instrumental in bringing the case to the courts, recounts his life as a Métis growing up in this era to frame the conditions of governmental neglect. Nathalie Kermoal examines how the social and political circumstances of the 1970s and 1980s motivated Harry Daniels to pursue s. 91(24) recognition. Both chapters provide a basis for understanding the struggle to have the case heard in the nation’s highest court. In Part 2, “Legal Analyses,” the collection moves to legal analyses of the decision. Jason Madden compares the Daniels decision to a Rorschach inkblot test “because everyone who reads it will see what they want within it” (44). His chapter provides the Métis Nation perspective as seen through his time preparing litigation as the legal counsel of the Métis Nation of Alberta and a Métis citizen. The court decision and the implications of Madden’s claims caused hysteria. Arend J. A. Hoekstra and Thomas Isaac claim that Daniels constitutes a shift in judicial language by introducing the word “Indigenous” into law while highlighting the introduction of a new framework for [End Page 103] s. 91(24) that contrasts with the framework of s. 35 of the Constitution Act, 1982. Catherine Bell focuses on the last two declarations of the judgment, which the court denied, charging the SCC with creating confusion about the responsibilities of the Crown regarding the “fiduciary relationship” and “context-specific duty” to “negotiate” with Indigenous Peoples. This argument is followed by D’Arcy Vermette’s assertion that, regardless of the victory of acknowledging federal responsibility for Métis, a review of SCC decisions demonstrates that their determinations are functionally racist in terms of Métis identity. Finally, Brenda L. Gunn tackles the implications of the decision from an international law perspective, especially regarding the United Nations Declaration on the Rights of Indigenous Peoples and the uprising of self-declared Métis people claiming Indigenous identity seeking to benefit from the court’s decision. Overall, this section strives to raise awareness of the many complications brought on by the jargon and indecisiveness in Daniels. The remaining essays in Part 3, “Societal Implications,” consider the fallout and broader societal implications of the decision on who claims victory and who has begun to claim Métis identity. First, Chris Andersen seeks to unpack the decision’s various strands of logic while exposing the differing interpretations that Indigenous political organizations have used to claim victory, followed by a chapter in which Rick W. A. Smith, Lauren Springs, Austin W. Reynolds, and Deborah A. Bolnick introduce the problematic—and dangerous—concept of genomics in producing and proclaiming notions of belonging. Darryl Leroux emphasizes the concerning practice of claiming Métis identity by using a relative from the 1600s as the sole basis for connection. Finally, Brenda Macdougall...

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