Seventeen years after the litigation began, a unanimous Supreme Court of Canada in Daniels v. Canada (Indian Affairs and Northern Development)[1] declared that all Aboriginal peoples, including non-status Indians and Métis, are “Indians” under section 91(24) of the Constitution Act, 1867, and it is the federal government to whom they can turn for policy redress.

Background:

Three declarations were sought by the plaintiffs:

  1. That Métis and non-status Indians are “Indians” under section 91(24) of the Constitution;
  2. That the federal Crown owes a fiduciary duty to Métis and non-status Indians; and
  3. That Métis and non-status Indians 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.[2]

Section 91(24) of the Constitution Act, 1867 places “Indians, and Lands reserved for the Indians” under the exclusive legislative authority of the federal government.

Declaration that Métis and non-status Indians are “Indians” under section 91(24):

Both the federal and provincial governments have long denied having jurisdiction over Métis and non-status Indians. This has resulted in these communities being in a “jurisdictional wasteland”, wondering where to turn for policy redress.[3] A declaration that all Aboriginal peoples fall under the legislative authority of the federal government ends the “jurisdictional tug-of-war” and provides certainty and accountability.[4]

The Court acknowledged that this declaration does not place a positive duty upon the federal government to legislate with respect to Métis and non-status Indians.

Importantly, the Court clarified that the declaration does not mean that all provincial legislation pertaining to Métis and non-status Indians is invalid. This is especially important for Alberta’s eight Métis Settlements which were created pursuant to negotiations culminating in the Alberta-Métis Settlements Accord that was implemented through related provincial legislation.[5]

The Court said that determining whether particular individuals or communities are non-status Indians or Métis is a fact driven question to be decided on a case-by-case basis in the future. [6] The lower Court’s conclusion that only Métis who met the criteria in the Powley test would fall under section 91(24) was rejected. In describing the definitional ambiguity of ‘Métis’ and ‘non-status Indian’, the Court stated “[t]here is no consensus on who is considered Métis or a non-status Indian, nor need there be. Cultural and ethnic labels do not lend themselves to neat boundaries.”[7] There was found to be no need to define which communities are Métis and non-status Indians because they are all “Indians” under section 91(24) as they are all Aboriginal peoples.

Second and third declarations not necessary:

The Court did not grant the second and third declarations, finding that they both lacked practical utility and simply restated settled law.

Delgamuukw v. British Columbia[8] already accepted that Aboriginal peoples have a fiduciary relationship with the Crown and the Manitoba Métis Federation Inc. v. Canada (Attorney General)[9] found a fiduciary relationship exists between the Crown and the Métis.[10] Haida Nation v. British Columbia (Minister of Forests)[11] and Tsilhqot’in Nation v. British Columbia[12] already found a context-specific duty to negotiate when Aboriginal rights are engaged.[13]

Ramifications:

As noted by the Court, “[t]his case represents another chapter in the pursuit of reconciliation and redress” in Canada’s relationship with Indigenous people.[14]

While the full and precise implications of this case are yet to be determined, it represents a watershed moment for those who have long been caught between a jurisdictional tug-of-war, with both federal and provincial governments denying they had jurisdiction over non-Indian Aboriginal peoples. Métis and non-status Indians now have clarity that it is the federal government that they can look to for policy redress. What this redress will look like remains to be seen.