On April 14th, 2016, The Supreme Court of Canada extended rights to Métis and non-status Indians in a landmark court case ending a 17-year court battle.
Professor William Wicken from the Department of History at York University spent three years working on this court case and testified on behalf of the Congress of Aboriginal Peoples who took the government to court.
Professor Wicken discusses his role in this landmark court case:
I worked on the case for three years, from 2008 to 2011. I was one of two historians for the Congress of Aboriginal Peoples. There were other witnesses but mostly they were either parties to the case (Dwight Dorey for instance) or testified about how status was defined. I testified at trial for three and a half days in May 2011. After that, of course, I was not part of the case. All the heavy lifting was done by the lawyers who were very tenacious. Joseph Magnet at U of Ottawa law faculty and Andrew Lokan who works for Paliare, Ronsenberg, etc. a downtown law firm.
There were two of us who testified about the history for the Congress. I testified about the BNA Act and the lead-up to it. Specifically, I talked about the broader objectives of Confederation and the broader objectives of section 91(24) in which the federal govt assumed responsibility for ‘Indians and lands reserved for Indians.’ Thus, the important issue was what did MacDonald, Cartier, Brown, etc. intend to do when they made Indians a federal responsibility as opposed to a provincial responsibility. Why did not they make Indians a provincial responsibility?
I also testified about where indigenous people lived at the time of Confederation and before as well as their mixed ancestry at this point in time. So, the essential point was that many people, at least in southern Ontario, were mixed and many lived off reserve. So, this made the point that in 1867, MacDonald and others would have known that Indians did not just live on reserve but lived off reserve as well. And, of course, there were not reserves in Rupert’s Land at this time.
Finally, I testified, briefly about the Métis, who they were, and where they lived. However, most of that evidence on the Métis was led by Gwyneth Jones who is an independent researcher who lives in Vancouver. My real purpose was about ensuring that non-status people, who had once been status, and moved to the cities, would become a federal responsibility. Or at least, the government would have to recognize this. (Of course, what happens now is another question. The real issue in the case is providing services for those people who are already poor and disadvantaged; and of course others who just want the govt to recognize them as ‘Indians.’)
My report, submitted to the federal court at trial, was 171 pages long. As you can see, it took a bite out of my life (and at a time when I was trying to finish my book) but convinced me to do my present research on the Six Nations.
Significantly, some of the most important evidence revolved around the Six Nations Grand River reserve. MacDonald and Baldwin were both keenly aware of the problems that ensued as settlement increased and more and more people moved off reserve or whites moved onto reserve, married Six Nations people (or did not) and then claimed a right to live there. Much of the Indian Act, I would argue, stems from how that dynamic evolved.
View the record of the federal court ruling here.