Introduction

On April 14, 2016, the Supreme Court of Canada (“SCC”) released its long-awaited decision in the Daniels v Canada matter. This unanimous decision marks the end of a 17-year journey by the plaintiffs, originally led by Métis leader Harry Daniels, to receive jurisdictional guidance in relation to Métis and non-status Indian peoples. The issue of federal jurisdiction in relation to First Nations and Inuit peoples, the other two Aboriginal peoples of Canada with rights “recognized and affirmed” by s. 35(2) of the Constitution Act, 1982, has been a political “hot potato”, with each level of government alternately recognizing and denying jurisdiction to deal with these peoples. The plaintiffs brought the case in the face of much resistance from the federal government, and stated that the issuance of a judicial declaration on that issue and others would assist Métis and non-status Indian peoples by triggering negotiations and in the goal of mitigating chronic gaps in addressing the needs and challenges of Métis and non-status peoples, and further the ongoing project of reconciliation mandated by s. 35(1).

Background and Procedural History

The Federal Court Action

In 1999, the applicants, the late Métis leader Harry Daniels, Leah Gardner, a non-status Indian woman from Northwestern Ontario and the Congress of Aboriginal Peoples (“CAP”) commenced an action in the Federal Court to resolve a long-standing issue as to whether Métis and non-status Indian peoples are included as “Indians” within the scope of s. 91(24) of the Constitution Act, 1867. Following the death of Mr. Daniels, his son Gabriel Daniels was added as a plaintiff, along with Terry Joudrey, a non-status Indian man from Nova Scotia.

Pursuant to s. 91(24), the federal government has exclusive jurisdiction over “Indians and lands reserved for Indians”. Although the federal government has acknowledged that this “head of power” includes legislative and policy matters connected to Indians who hold status under the federal Indian Act, RSC 1985, c I-5, and Inuit peoples since a reference case decided the latter issue in 1939, it has periodically acknowledged but consistently denied that s. 91(24) provided it with the same power and responsibility regarding matters connected to Métis and non-status Indian peoples. As a result, the plaintiffs argued that a virtual jurisdictional vacuum had developed over time, to the significant detriment and disadvantage of Métis and non-status Indian peoples alike, most often manifesting itself in the inaccessibility of badly needed programs and services currently available to status Indians and Inuit.

Accordingly, the plaintiffs requested that the Federal Court issue the following declarations in their favour:

  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 Decision

After several unsuccessful motions to strike or dismiss the action by Canada and a variety of other procedural delays, the merits of the case were finally heard by Justice Phelan of the Federal Court beginning in May 2011.

In a decision rendered on January 8, 2013, Justice Phelan granted the primary relief sought, a declaration that s. 91(24) of the Constitution Act, 1867 over “Indians” includes Métis and non-status Indians. Justice Phelan declined however to issue the two further declarations requested, namely that the federal Crown owes a fiduciary duty to Métis and non-status Indians and Métis and non-status Indians have the right to be consulted by Canada on a collective basis. They would merely repeat the existing state of the law and therefore be of no practical utility.

The Federal Court of Appeal Decision

Canada appealed the trial decision to the Federal Court of Appeal in its entirety. The appeal was heard in October 2013. Amongst other things, Canada argued that the trial judge had committed errors of law by granting a declaration that lacked any practical effect, by granting a declaration that was unfounded in fact and law, and by attempting to define a meaning of the constitutional term “Indian” in the abstract. The plaintiffs cross-appealed on the grounds that the Judge had erred in failing to grant the declarations concerning fiduciary duty and obligations to be consulted and negotiated concerning the right to be consulted and negotiated with.

Canada’s appeal was allowed in part, with Court of Appeal concluding that while “ample evidence to support the view that Métis were considered as being within the s. 91(24) jurisdiction at the time of Confederation” it was necessary to vary the declaration issued by the trial judge by deleting the reference to “non-status” Indians, reasoning that “to determine the limits of the word ‘Indian’ as it pertains to non-status Indians under the division of powers it is necessary to analyze the reason each class of individual was excluded from the Indian Act on a case-by-case basis.” The cross-appeal was dismissed in its entirety.

The SCC Decision

Leave was sought to the SCC, seeking to restore the first declaration as initially granted by the trial judge, and also requesting that the second and third declarations be granted. Canada conditionally cross-appealed, arguing that none of the declarations should be granted. Leave was granted, and the appeal and cross-appeal were heard on October 8, 2015.

On April 14, 2016, Madam Justice Abella, writing for a unanimous Court, allowed the plaintiffs’ appeal in part by upholding the declaration that federal jurisdiction pursuant to s. 91(24) of the Constitution Act, 1867 relating to “Indians and lands reserved for the Indians” included both Métis and non-status Indians. The requests for the second and third declarations were denied.

i.) The SCC granted the first declaration concerning jurisdiction in light of its practical utility

In its discussion on the first declaration, the SCC focused on the principle that a declaration ought to only be granted if it would have practical utility by way of settling “a live controversy”. Since the first declaration was considered to have “enormous practical utility” for both Métis and non-status Indians, the Court decided that the circumstances were amenable to the granting of a declaration.

The SCC also agreed with the trial judge that the confusion over jurisdiction meant Métis and non-status peoples were in a “jurisdictional wasteland” leading to significant and obvious disadvantages. While the SCC made it clear that the finding of jurisdiction under s. 91(24) did not create a duty to legislate, it nonetheless commented that it would have an undeniable benefit in ending the “jurisdictional tug-of-war” that had persisted for decades, and create much needed certainty and Crown accountability for the Aboriginal peoples concerned.

ii.) The SCC characterized the declaration on jurisdiction broadly, including both Métis and non-status Indians

Importantly, in granting the first declaration sought by the appellants, while acknowledging that “definitional ambiguities” may exist and indeed persist in respect of both, the SCC recognized that all Aboriginal peoples are included in 91(24).

In so concluding, the SCC commented that conclusively determining issues related to definitions was simply not necessary to resolve the basic issue of inclusion under s. 91(24).

Owing to a concession in oral argument by the federal Crown that non-status Indians are indeed included in s. 91(24), the SCC found it unnecessary to explore the issue in further detail, but it did engage in a more thorough inquiry as to whether Métis should be included, focusing on the historical, philosophical and linguistic contexts of the word “Indian” at the time of Confederation, and the purpose of s. 91(24) at that time.

First, the SCC reasoned that the fathers of Confederation would have intended for the word “Indians” to be defined broadly in order to ensure they possessed the authority to deal with a variety of policy concerns related to a variety of Indigenous peoples, and to achieve the constitutional goal to expand Canada westward. Moreover, the federal government had legislated over Métis as “Indians” and had clearly done so believing that it was acting within its constitutional authority.

Second, the court agreed with the plaintiffs that s. 91(24) must be read in its constitutional context, and that it would be constitutionally anomalous for the Métis to be the only Aboriginal people included in section 35 of the Constitution Act, 1982,yet excluded from s. 91(24).

Finally, the SCC resolved the “definitional dispute” regarding Métis by commenting that it was “a fact-driven question to be decided on a case-by-case basis in the future”, adding that the Federal Court of Appeal’s suggestion that the definition of Métis in the declaration should be restricted to the three definitional criteria set out in Powley was inappropriate. In particular, the SCC saw no reason to arbitrarily exclude certain Métis from the purview of s. 91(24) based on the application of the “community acceptance” aspect of the Powley test.

Ultimately, the SCC found that today, in view of the adoption of s. 35 in 1982, recent steps taken by the Crown to apologize and address past wrongs to all Aboriginal peoples, and an increased recognition of Aboriginal peoples as partners in the project of confederation, s. 91(24) is now to serve a very different constitutional purpose than it did at the time of confederation – that of reconciliation:

Implications

The declaration over jurisdiction is significant “win” for the plaintiffs and Métis and non-status Indian peoples, resolving the glaring and long-standing jurisdictional gap that has resulted in historical disadvantages.

The SCC also clarified that the declaration of federal jurisdiction over Métis and non-status Indians does not mean that the provinces cannot legislate in this area. Therefore, while the federal government can no longer refuse to act for a lack of jurisdiction, the declaration will not invalidate current provincial laws that seek to address issues facing non-status Indians or Métis, provided that they do not go so far as to impair the so-called “core” of the federal 91(24) jurisdiction.

As much as the Daniels case is of clear assistance in clarifying the jurisdiction over Métis and non-status Indians and giving both the federal government and provinces the opportunity to address historical disadvantages faced by these groups, the decision may not have an immediate effect.

The SCC’s decision, however, in taking an expansive version of s. 91(24), clearly opens the door to Federal and provincial action - not to mention the potential for future court challenges - should the federal government decide to continue to ignore its jurisdiction to deal with Métis and non-status Indian peoples.

As Justice Abella explained, “[the Daniels case] represents another chapter in the pursuit of reconciliation and redress” in the relationship between Canada and its Indigenous peoples. With greater jurisdictional clarity, the ongoing project of reconciliation that is so important to all Canadians may continue.”