Fiddling with Head 91(24): Métis Interjurisdictional Immunity

• Author: Albert C. Peeling
• Pages: 231-258

231

  

Fid dlin g with Head  ():

Métis Interjurisdictional Immunity

 . 

Whether the Métis in Canad a are “Indians” within the meaning of head

() of the Constitution Act, , has never been conclusively deter-

mined by any court. e question is an important one: if the Mét is are

Indians and within the scope of head (), it follows t hat they are en-

titled to a degree of immunity from provincial legislative and executive

authority under the doctrine of interjurisdictional im munity. Interjuris-

dictional immunit y is a doctrine of constitutional law wh ich establishes

a core of federal jurisdiction in each class of subjects assigned to the fed-

eral government by section  of t he Constitution Act, . is core

is b eyond the reach of provincial authority. In this paper I propose to

examine the application of the doct rine of interjurisdictional immunity

to Métis people.

e paper begins w ith an e xamination of whether the Métis are “In-

dians” w ithin the mea ning of the phrase “Indians, a nd Lands reserved

for the Indians” a s it is used in head () of the Constitution Act , .

I then consider the sor ts of activit ies that might be protected from t he

 (U.K.),  &  Vict., c. , reprinted in R .S.C. , App. II, No. .

 For an in-depth discussion of the i ssue, see Clem Chartier, “‘India n’: An Ana ly-

sis of the Term as Used in Section () of the Brit ish North America Act, ”

(–)  Sask. L . Rev. ; Mark L. Stevenson, “Section () and Canad a’s

Legislative Jur isdiction with Respe ct to the Métis” ()  Indigenous L.J. ;

Mark L. Stevenson, “Mét is Aboriginal Rig hts and the ‘Core of Indianness’” ()

 Sask. L. Rev. .

232  . 

reach of provincial laws by the doctrine of interjurisd ictional immunit y.

Finally, I look briey at the dierences between Métis people and Indians

with respect to provincial legislative authority in light of section  of the

Indian Act.

A. DO THE MÉTIS FALL WITHIN EXCLUSIVE FEDERAL

JURISDICTION UNDER HEAD  OF THE

ConSTiTuTion ACT, 1867?

In this part of the paper, I set out some of the argu ments relating to the

Métis people and the reach of head (). e arguments are doctrinal

and historical, textua l and structural, prudential and ethical . I have bor-

rowed the classication of arguments used here from Phillip Bobbitt’s

helpful work on constitutional a rgumentation, Constitutional Fate. In

addressing the question of whether the Métis are Indians within the

meaning of head () of the Constitution Act, , I propose to draw

heavily upon Bobbitt’s typolog y and will dene each archetype of argu-

ment as I discuss and apply them.

e rst archetype Bobbitt sets out is historical, which he de nes as

argument that relies on the intent of the constitutional draers and the

beliefs and attitudes prevalent at the time of raticat ion.

Historical argument is argument based on legislative intention. In

terms of the question of the scope of head () of the Constitution Act,

, one must consider the intention of both the Fathers of Confedera-

tion and the imperial Parliament. It is also necessar y to consider w hat

the intention was in  and whether that original intention was altered

by the amendment of the Constitution in .

Tex t ua l argument relies on the current understanding of t he words

of the text.

e words i n head (), “Indians, and Lands reserved for t he In-

dians,” do not provide us with an obvious answer to the questions we

are asking: “W ho are Indians?” a nd specically, “Are Métis Indians?”

Furthermore, t he quest for meani ng is not helped by t he Confederation

 Indian Act, R.S.C. , c. I-.

 Philip Bobbitt, C onstitutional Fate: eory of the Co nstitution (New York: Oxford

University Press, , ).

 Ibid. at .