On April 14, 2016, the Supreme Court of Canada (SCC) rendered its decision in Daniels v. Canada (Indian Affairs and Northern Development), 2016 SCC 12.

The Plaintiffs (Appellants) in the case are the Congress of Aboriginal Peoples (a corporation representing Métis and non-status Indian peoples throughout Canada), as well as several individuals identifying as Métis or “non-status Indian” (i.e. persons with Indian heritage that are not recognized by the federal government as registered under the Indian Act, RSC 1985, c I-5). They sought declarations from the SCC that the federal government has legislative authority over Métis and “non-status Indians” pursuant to section 91(24) of the Constitution Act, 1867, that the federal Crown owes a fiduciary duty to the Métis and non-status Indians, and that it must consult these groups on a collective basis concerning all their rights and interests as Aboriginal peoples.

The Plaintiffs had no choice but to initiate legal proceedings because the federal government claimed it was constitutionally precluded to assume legislative authority over Métis and non-status Indians, while the provincial governments also refused to act on the basis that the matter was a federal one. As described by the SCC, this put the Métis and non-status Indians in a sort of “jurisdictional wasteland”.

In its decision, the SCC declared that the Métis and non-status Indians were “Indians” within the meaning of section 91(24). However, it declined to grant declarations that the federal government owed these two groups fiduciary duties and consultation obligations under section 35 of the Constitution Act, 1982 because these rights and responsibilities were already recognized in law (in cases such as R v. Powley, [2003] 2 SCR 207 and Métis Federation Inc. v. Canada (Attorney General), [2013] 1 SCR 623).

The key principles set out by the SCC in the Daniels decision can be summarized as follows:

  • The historical, philosophical and linguistic contexts establish that the term “Indians” in section 91(24) includes all Aboriginal peoples, including non-status Indians and Métis (para. 19);
  • The term “Indian” or “Indians” in the constitutional context can have two meanings: a broad meaning, as used in section 91(24), that includes both Métis and Inuit and can be equated with the term “Aboriginal peoples of Canada” used in section 35 of the Constitution Act, 1982, and a narrower meaning that distinguishes Indian bands from other Aboriginal peoples (para. 35);
  • Determining whether particular individuals or communities are Métis or non-status Indians and therefore “Indians” under section 91(24), is a fact-driven question to be decided on a case-by-case basis (para. 47); and
  • For the purposes of the federal legislative authority set out in section 91(24), the concept of Métis should be given a broader meaning than in the context of section 35 of the Constitution Act, 1982. In Powley, the SCC referred to the following three criteria for determining who qualifies as Métis for purposes of section 35: (1) self-identification as Métis, (2) an ancestral connection to an historic Métis community, and (3) acceptance by the modern Métis community. In the Daniels decision, the third criterion – community acceptance – was found irrelevant for the purposes of section 91(24). Indeed, the SCC confirmed that there is no principled reason for presumptively and arbitrarily excluding people from Parliament’s protective authority on the basis that they may no longer be accepted by their modern Métis communities because they were separated from them as a result, for example, of government policies such as Indian Residential Schools (para. 49).

The primary significance of the Daniels decision relates to responsibility for social programs and services. Prior to this decision, provincial and federal governments had a history of denying jurisdiction, and hence responsibility for matters such as the health and education of the Métis and non-status Indians. The Daniels decision does not deal with the collective Aboriginal rights of these groups over land and natural resources because the SCC’s prior decisions already recognized these rights. However, it arguably confirms that there is no hierarchy of Aboriginal rights based on the category of Aboriginal group to which one belongs. In practice, industry had generally been taking this approach. The case is therefore of more significance to governments than it is to industry.