On April 14, 2016, the Supreme Court of Canada (“SCC”) released its decision in Daniels v Canada (Indian Affairs and Northern Development), 2016 SCC 12, ruling thatMétis and non-Status Indians fall within exclusive legislative jurisdiction of Parliament under section 91(24) of the Constitution Act, 1867, resolving the issue of which of the federal or provincial governments has legislative authority over Métis and non-Status Indians.

Background

To address the issue that both the federal and provincial governments have denied legislative jurisdiction over Métis and non-status Indians, a Métis man, a non-status Anishnabe woman from Ontario, a non-status Mi’kmaq man from Nova Scotia, and the Congress of Aboriginal Peoples brought a claim against the federal government in Federal Court seeking three declarations:

  1. that Métis and non-status Indians are “Indians” within the meaning of the expression “Indians and lands reserved for Indians” in s 91(24) of the Constitution Act, 1867;
  2. that the Queen (in right of Canada) owes a fiduciary duty to Métis and non-status Indians as Aboriginal people;
  3. that the Métis and non-status Indian peoples of Canada have the right to be consulted and negotiated with, in good faith, by the federal government on a collective basis through representatives of their choice, respecting all their rights, interests and needs as Aboriginal peoples.

The Federal Court granted the first declaration, but refused to grant the second or the third declaration.

On appeal, the Federal Court of Appeal upheld the declaration that Métis are Indians within the meaning of s. 91(24) of the Constitution Act, 1867, but granted the Crown’s appeal in part by deleting reference to non-status Indians because it considered its inclusion to be of no practical usefulness based on the fact that federal Crown conceded in oral argument that it had legislative jurisdiction over non-status Indians.  The Appellants appealed this decision to the SCC, seeking to restore the term “non-status Indian” to the first declaration, and requesting that the second and third declarations be issued.  In its cross-appeal, the Crown sought to have the first declaration dismissed in its entirety.

Decision

Section 91(24) includes Métis and non-status Indians

The SCC granted the declaration that both Métis and non-status Indians are “Indians” under s. 91(24) “Indians, and Lands reserved for the Indians”.   In reaching this determination, the SCC noted that the term “Indian” in s. 91(24) “has long been used as a general term referring to all Indigenous peoples, including mixed-ancestry communities like the Métis.”  As such, “Indians” in s. 91(24) should be interpreted broadly to encompass all Aboriginal peoples, whether Indian, Métis, or Inuit.

The SCC found there was practical utility in granting the first declaration sought. In this respect, the SCC was clear:

Both federal and provincial governments have, alternately, denied having legislative authority over non-status Indians and Métis. This results in these Indigenous communities being in a jurisdictional wasteland with significant and obvious disadvantaging consequences.

Though the declaration does not force the federal government to legislate, the SCC noted that it would clarify which level of government to hold accountable for addressing the “inadequate status quo” faced by Métis and non-status Indians. The SCC also noted that the federal government's jurisdiction over Métis and non-status Indians does not mean that all provincial legislation regulating Métis and non-status Indians would be ultra vires.

Defining “Métis” and “non-status Indian”

Throughout the proceedings, several definitions were put forward by the Appellants and various interveners to define “Métis” and “non-status Indians” for the purposes of s. 91(24).

However, the SCC did not find it necessary to define or delineate Métis and non-status Indian for the purposes of s. 91(24):

Since s. 91(24) includes all Aboriginal peoples, including Métis and non-status Indians, there is no need to delineate which mixed-ancestry communities are Métis and which are non-status Indians. They are all “Indians” under s. 91(24) by virtue of the fact that they are all Aboriginal peoples.

The Court further stated that the Powley test (used to determine who qualifies as Métis for the purpose of s. 35(1) of the Constitution Act, 1982) should not be used to define Métis in the context of s. 91(24). Instead, s. 91(24) includes all Aboriginal people including those who have been disconnected from or are no longer accepted by their communities.

No Practical Utility in Issuing Other Declarations

The SCC upheld the lower courts’ decisions not to declare that the federal government owed a fiduciary duty to Métis and non-status Indians.  Since existing case law already confirms that the Crown is in a fiduciary relationship with Canada’s Aboriginal peoples, the SCC held there was no practical utility in issuing a declaration in absence of a specific Aboriginal interest.

The SCC also refused to issue a declaration that Métis and non-status Indians have the right to be consulted and negotiated with by the federal government on a collective basis through representatives of their choice, as no specific Aboriginal rights were engaged. 

Conclusion

By clarifying federal constitutional authority, the Court has positioned the federal government with the legislative authority to take the lead in the pursuit of reconciliation with Métis and non-status Indians.  What steps the federal government will take in that direction remains to be seen.