SITUACIÓN DEL SISTEMA DE PENSIONES AL 2012,

As outlined above, a living tree approach must still somewhat rely on a purposive approach to constitutional interpretation.264 While a living tree approach requires any

263 Stevenson, 261. 264. Miller, 339-340.

constitutional interpretation to be in line with the overall purpose of the provision, this does not mean that the living tree interpretation must further the original intent of the power.265 Rather it means that, like a tree, the constitution is capable of growth to accommodate new realities, but that it is limited in its movement because it has roots that are firmly planted in the ground.266 In order to apply the living tree interpretation to the Daniels case, it is then important to think about Section 91(24)’s overarching goals, which are to provide the Canadian federal government with a broad power over Indians, in order to be able to accommodate Canada’s goals of Aboriginal policy.

Before considering the overall purpose behind Section 91(24) it is important to clarify some confusion surrounding the federal court judge's’ use of the word “purpose” in his reasons. First, Justice Phellan stated that, similarly to the same-sex reference, he was going to apply a purposive approach, or the living tree doctrine to this case.267 However, he equated a purposive approach with living tree approach, which is not exactly correct, especially considering his definition of purposive. He describes the purpose of Section 91(24) as the desire to control all Aboriginal People, to assimilate and control Indians, and to assist in the expansion of the west.268 What he describes here however, is the original intent of the framers and not the purposive approach described by Miller, which can be rejected under a living tree approach. Later , however, he correctly articulates Section 91(24)’s overall purpose when explaining that the overall purpose of the Indian power is to give Canada a broad power to have exclusive jurisdiction over Indians, in order to accommodate any potential policy objectives.269 The

265. Ibid., 340. 266. Jackson, 926. 267. Daniels FCA, 52, 53. 268. Ibid., 53, 566. 269. Daniels, 273, 275 308, 318, and 151.b, 323.

difference between the original intent and the overall purpose of a power is that the original intent is more about what the power was originally used for, while the purpose is more about the why the power was created.

The federal court of appeals judge later clarifies the lower court judge’s opinion, when he says, “The Defendants’ argument that the purpose of s 91(24) was to allow the federal

government the power to protect Indians and their lands because Indians were viewed as childlike uncivilized people [...] ignores the far broader and more acceptable purposes for the s 91(24) power”, which he describes as, “the Crown’s responsibilities to natives, obligations under the Royal Proclamation of 1763, the need for coordinated approach to natives rather than the balkanized colonial regimes…”.270 Here, the federal court of appeals judge seems to be making the distinction between the original intent and the purpose, as he explains the overall purpose as a more long-term goal of the power, whereas the original intent is more about the use of the power when it was first created.

Through keeping the overall purpose of Section 91(24) in mind, it is clear that in order to fulfil its purpose of providing Canada with a broad power over Indians, Section 91(24) must provide Canada with the power over all Indians. Thus, in order for the provision to continue to fulfil its intended overarching purpose, the federal government must have the explicit jurisdiction over all Aboriginal People, which inevitably includes the Métis. If the Supreme Court finds that the Métis are not found to be Section 91(24) Indians, then it is taking a much narrower view of 91(24) from its original purpose.

Another of Section 91(24)’s original purposes was to allow Canada the ability and flexibility to accommodate its potential future policy concerns and goals.271 Canada’s current

270. Ibid., 539. 271. Ibid., 275.

goals regarding its Aboriginal policy are to promote reconciliation and respect, and therefore, it becomes especially important for the federal government to include the Métis under these policy goals, as the Métis are likely to be the Aboriginal group the most in need of reconciliation. The Métis have suffered under many of the same detrimental policies as their First-Nation neighbors, but have not been awarded any of the programs in place today to correct these injustices, as a group whose Indigeneity has always been called into question.272 As Miller explained, engaging in a living tree approach that stays true to a provisions’ original purpose can still reject the framers original intentions with the provision. If the Supreme Court were to hand down the first declaration on the basis that it will help drive reconciliation efforts, it would be making a clear rejection of this original intentions of s.91(24) and instead highlight how s.91(24) today should be intended to better Aboriginal Peoples and correct historical wrongdoings, rather than

discriminate against them.

Again, here the main difference between the living tree approach and the originalist interpretation of the lower courts is that the question is framed in the present instead of in the past. The lower courts looked at the goals of Aboriginal Policy around the time of Section 91(24)’s creation in order to determine whether the Métis are Section 91(24) Indians. Instead a living tree approach requires a consideration of the current goals of Aboriginal Policy, in order to determine whether the Métis are Section 91(24) Indians.