Reference whether “Indians” includes “Eskimo”

Supreme Court of Canada – [1939] S.C.R. 104 – “Re Eskimo”


Quebec IdentityJurisdiction over Indians
Summary

This decision confirmed that the Inuit are considered as “Indians” within the meaning of the Constitution and therefore fall under federal jurisdiction.

Issue

Does the term “Indians” in sect. 91 (24) of the British North America Act include the Inuit living in Northern Quebec?

Decision

The term “Indians” includes the Inuit (unanimous decision).

Parties

Interveners: The Dominion of Canada and Quebec

Facts

In 1867, the provinces of Ontario, Quebec, Nova Scotia and New Brunswick were united to form the Dominion of Canada when the British North America Act came into force. These territories gained their legislative independence from the British Crown. Legislative powers were distributed between the Dominion and the provinces. Section 91(24) gives Canada jurisdiction over “Indians and lands reserved for the Indians.”

In 1870, the Northwest Territories and Rupert’s Land were annexed. These territories were inhabited mostly by Aboriginals known as “Eskimos” (Inuit today). They became the responsibility of the Department of Indian Affairs. In 1927, the responsibility for the Inuit was transferred to the Department of the Interior.

During the Depression, the Inuit population living in the Quebec Arctic suffered a great famine. Due to the economic crisis, the fur market declined, resulting in the closing of many trading posts in Arctic Quebec and leaving the Inuit without their main means of subsistence. The Department of the Interior refused to allocate them relief funds, maintaining that this was a matter of provincial jurisdiction. Quebec eventually stepped in to provide the Inuit with assistance.

In 1939, with the dispute over the status of the Inuit ongoing between Quebec and the federal government, Parliament sought the opinion of the Supreme Court.

Arguments

Canada: The Inuit cannot be considered Indians within the meaning of s. 91(24) of the British North America Act. The terms “nation” or “tribe” could not be applied to them and they were never under the protection of the British Crown. Furthermore, in an official document addressed to Governor Carleton in 1762 concerning British policy regarding Aboriginals, they were distinguished from the other Aboriginal nations and were excluded by the policy.

Quebec: The Inuit are included in the term “Indians” found at s. 91 (24) due to a long history of missionaries, explorers, government agents, politicians, anthropologists, cartographers and geographers describing them as such. The intention of the Fathers of Confederation was to grant Parliament jurisdiction over all the Aboriginals living within Canada’s boundaries.

Decision of the lower courts

The federal government went directly to the Supreme Court of Canada with the reference question as it concerned a legal issue important to all Canadians.

Reasons for Judgement

Jury

Duff, Cannon, Crocket, Davis

Reason

Kerwin Hudson wrote concurring opinions

The evidence indicates that the Inuit lived predominantly in Rupert’s Land as well as in the Northwest Territories (90% of the total population). It also shows that half the Indian population lived in those territories. Also, numerous official documents clearly demonstrate that governors, commanders-in-chief, clergymen and missionaries regarded the Inuit as Indians or “savages.”

In the 1850s, a House of Commons committee was mandated to conduct a census of the Aboriginal populations under the jurisdiction of the Hudson Bay Co., which was exercising the powers of government over those territories at that time. The British North America Act provided for the future admission of these lands into the Dominion of Canada and so the census was aimed at assessing the size of the populations to be incorporated into Canada. The census included a map illustrating the various Indian bands, including the Eskimo.

The government demonstrated a clear intention to include Eskimos under the term “Indian.”

The Court rejected the argument that the Inuit were never under the Dominion’s jurisdiction, reaffirming that this is not corroborated by the evidence of the Hudson Bay Co.’s dealings with the Eskimo. The language in the Instructions to Sir Guy Carleton does not go against the broad interpretation of the term “Indian.”

Impact

The federal government tried to appeal the decision to the Judicial Committee of the Privy Council in London. It was however unable to do so due to the war (Tester and Kulchyski, p. 34, 1994).

Even though the Supreme Court decided that the term “Indian” included the Inuit of Northern Quebec, the federal government subsequently excluded them from the Indian Act during the amendments of 1951. The government decided to opt for an approach entailing specific programs and services for the Inuit as part of the mandate of the Department of Indian Affairs and Northern Development (Chartrand, 1999). The responsibility for the Inuit was consigned to the Northern Administration Branch of the Department of Indian Affairs. The Department’s policies were heavily influenced by the Eskimo Affairs Committee, a meeting of representatives of both public and private organizations aimed at helping the Inuit in their transition from a nomadic to a sedentary lifestyle. The Committee also had the right to veto elements in the drafting of new policies concerning the Inuit population. The Committee was dissolved In 1962, a few years after the creation of the Department of Northern Affairs in 1957 (Clancy, 1987).

In the 1960s, Quebec’s interest in natural resources (hydroelectricity, minerals) in its arctic region grew. In 1964, Quebec created the Direction générale du Nouveau Quebec, which took over the federal government’s jurisdiction over the Inuit. Quebec established education and health services in the region for its growing population (Comat, 2009). Rather than in reserves, the Inuit live in municipalities. After 1975, other public institutions were created under the James Bay and Northern Québec Agreement. In 2007, Quebec, the Inuit and the federal government reached an agreement on Inuit self-government in the Arctic region with the creation of the regional government of Nunavik (Secrétariat aux affaires autochtones, 2009).

Inuit, Métis and non-status Indians

The Eskimo case was used to support the arguments of the Métis and non-status Indians in 2013. The Constitution Act, 1982 recognized the term “Aboriginal” applies to the Métis and Indians as well as the Inuit. However, section 91(24) of the Constitution Act, 1867 is not as clear in the terms used and, unlike in the case of the Inuit, a Court has never made a ruling on the federal government’s jurisdiction over non-status Indians and Métis (Isaac, 2004). As a result, the Privy Council Office is responsible for the Métis instead of the Minister of Aboriginal Affairs, which allows the federal government to circumscribe its responsibility and especially its financial obligations to the Métis (Isaac, 2004). The practical consequences of this exclusion were the marginalization and vulnerability of the Métis and non-status Indians, given their lack of right to any federal program or service that is available to status Indians and the Inuit (Pape, 2013).

In January 2013, the Federal Court ruled that the Métis and non-status Indians are included in federal government’s exclusive jurisdiction set out at s. 91(24) in the Daniels case (Gauthier, 2013). The Eskimo case was helpful in that it specified that the term “Indian” in the Indian Act should be given a wide interpretation and recognized that persons of mixed ascendance are still considered to be “Indian” (Daniels, 2013, para. 551, 558). Like the Inuit, the Métis are Aboriginals who are culturally distinct from Indians and are not covered by the Indian Act. Daniels now prevents the federal government for alleging a lack of jurisdiction over Métis and non-status Indians, as they now fall under its exclusive jurisdiction (Pape, 2013).


Sources

Daniels v. Canada, 2013 FC 6

Paul Chartrand. 1999. The Constitutional Context of section 91 (24). Report prepared for the Congress of Aboriginal Peoples. Ottawa.

Peter Clancy. 1987. The Making of Eskimo Policy in Canada, 1952-62: The Life and Times of the Eskimo Affairs Committee, Arctic 40 (3): 191-197.

Ioana Comat. 2009. Les Inuits (non-published document).

Thomas ISAAC. 2004. Aboriginal Law: commentary, cases and materials, 3rd ed. Saskatoon: Purich Publications.

Frank Tester and Peter Kulchyski. 1994. Tammarritt (Mistakes): Inuit Relocation in the Eastern Arctic, 1939-63. Vancouver: UBC Press.

Secrétariat aux affaires autochtones. 2009. Inuit. Online.  http://www.saa.gouv.qc.ca/relations_autochtones/profils_nations/inuits_en.htm. Accessed July 6, 2009.

Thibault Martin. 2005. De la dépendance à l’autonomie : la longue marche des Inuit du Nunavik, dans Jean MALAURIE et Jacques ROUSSEAU, Du Nouveau-Québec au Nunavik, 1964‑2004 : une fragile autonomie : 469-495. Paris : Economica.

Jean TEILLET and Jason Madden. 2013. Plainspeak on the Daniels Case. In Ralliement national des Métis- News. Online: http://www.metisnation.ca/wp-content/uploads/2013/02/Daniels-Plainspeak-FINAL.pdf. Accessed July 28, 2013.

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