On April 14, 2016, the Supreme Court of Canada issued its decision in the highly anticipated case of Daniels v Canada (Indian Affairs and Northern Development) (“Daniels”)1 following years of litigation.
The SCC’s decision recognizes that the over 600,000 people who identify as Métis and non-status Indians in Canada are “Indians” under s. 91(24) of the Constitution Act, 1867 and as a result, creates certainty for these groups and greater accountability for both the federal and provincial governments.
In Daniels, the appellants sought three declarations:
- that Métis and non-status Indians are “Indians” under s. 91(24) of the Constitution Act, 1867;
- that the federal Crown owes a fiduciary duty to Métis and non-status Indians; and
- that Métis and non-status Indians have the right to be consulted and negotiated with.
The trial judge granted the first, but declined to grant the second and third declarations. The Federal Court of Appeal accepted that “Indians” in s. 91(24) include all Indigenous peoples generally and upheld the first declaration; however, the Court of Appeal narrowed the scope to exclude non-status Indians and include only those Métis who satisfied the three criteria from the SCC’s decision in R. v Powley: self-identification as Métis; an ancestral connection to a historic Métis community; and acceptance by the modern Métis community.2 The Court of Appeal also declined to grant the second and third declarations.
In its recent judgment, the SCC held that the first declaration should be granted, recognizing that Métis and non-status Indians are “Indians” under s. 91(24) of the Constitution. The SCC set aside the Federal Court of Appeal’s conclusion that the first declaration should exclude non-status Indians or apply only to those Métis who meet the Powley criteria. The SCC also upheld the trial judge’s and Federal Court of Appeal’s decision not to grant the second and third declarations.
The SCC made note of the consequences that the jurisdictional uncertainty had caused for these groups:
Delineating and assigning constitutional authority between the federal and provincial governments will have enormous practical utility for these two groups who have, until now, found themselves having to rely more on noblesse oblige than on what is obliged by the Constitution … Both federal and provincial governments have, alternately, denied having legislative authority over non-status Indian and Métis … This results in the Indigenous communities being in a jurisdictional wasteland with significant and obvious disadvantaging consequences.
The SCC further noted that finding Métis and non-status Indians to be “Indians” under s. 91(24) does not create a duty to legislate but has “the undeniably salutary benefit of ending a jurisdictional tug-of war in which these groups were left wondering about where to turn for policy redress” (para. 25).
Referring to a range of historical, academic, philosophical, and linguistic material accepted by the trial judge as well as a series of past court cases, the Court concluded that Métis and non-status Indians are in fact within the jurisdiction of the federal government. The ambiguity surrounding how “Métis” and “non-status Indian” are defined does not preclude these groups from inclusion within the scope of s. 91(24). However, whether particular individuals or communities are non-status Indians or Métis and therefore “Indians” under s. 91(24) is a “fact-driven question to be decided on a case-by-case basis” (para. 47).
Implications of the SCC’s decision
The SCC’s decision is a significant victory for Métis and non-status Indians in Canada. While Daniels does not grant Métis and non-status Indians Indian Act status, or require the federal government to provide programs and services to these groups, the government cannot now refuse to provide benefits to Métis and non-status Indians on the basis it has “no jurisdiction” or engage in what the Federal Court of Appeal referred to as “political football -- buck passing practices”.
The Daniels decision is unlikely to have any direct consequences on the Crown’s consultation obligations with Métis and non-status Indians in the context of development projects, where the scope and content of the duty to consult are matters of well settled law.
Nevertheless, the Daniels decision sets the stage for future discussions and negotiations between Canada, Métis and non-status Indians, on claims over Aboriginal rights, and access to programs and services, and marks another step in Canada’s path towards reconciliation.
For more information on the Daniels decision or any other topics in Aboriginal law, please contact any member of Bull Housser’s Aboriginal Law Group.
1 2016 SCC 12