The Supreme Court of Canada (SCC) declared in Daniels v. Canada (Indian Affairs and Northern Development) that Métis and non-status Indians are “Indians” under section 91(24) of the Constitution Act, 1867, meaning they come within the federal government’s jurisdiction. The SCC’s ruling is intended to end the uncertainty that had resulted from prior federal and provincial refusals to take legislative responsibility for these groups, and provide a level of accountability. However, the SCC expressly left open deeper questions concerning who qualifies as non-status Indian and Métis people, and what rights they have. Those issues will need to be resolved in the future, via legislation or court decisions.
The plaintiffs sought declarations that:
- Métis and non-status Indians are “Indians” under section 91(24)
- The federal Crown owes a fiduciary duty to Métis and non-status Indians
- 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 PeoplesThe SCC granted the first declaration (for reasons discussed below), but declined to make the second and third declarations.
Concerning the second declaration, the SCC only briefly touched on the issue, affirming that the government is in a fiduciary relationship with Métis and non-status Indians. The SCC did not address the difference between a broad fiduciary relationship and specific fiduciary duties. Generally, courts will not grant remedies for breach of a “relationship”; remedies are granted for breach of a “duty”. In the aboriginal context, fiduciary duties most commonly arise when the government has discretionary control over aboriginal interests, such as Indian Reserves. What exactly the federal government’s fiduciary relationship with non-status Indians and Métis means in practice remains to be seen.
In dismissing the application for the third declaration, the SCC noted that it had previously recognized a “context-specific duty to negotiate when Aboriginal rights are engaged.” That is a restatement of what has been consistently characterized as a duty to consult, and where appropriate, accommodate Aboriginal Peoples in respect of their asserted or existing rights. While in practical terms consultation often involves some negotiation, that has not been the legal requirement to date.
There is a common thread running through the SCC’s reasons on these two issues, as well as the primary constitutional issue: the SCC wished to foster an improvement in the stature of Métis and non-Indian peoples, but their specific rights (and the government’s specific duties) will need to be addressed in future cases.
FEDERAL JURISDICTION OVER ALL ABORIGINAL PEOPLES
In declaring that Métis and non-status Indians are all “Indians” under section 91(24) of the Constitution Act, 1867, the SCC held that this outcome is consistent with history, the reading of the Constitution, and prior cases. Section 35 of the Constitution Act, 1982 affirms the rights of all Aboriginal Peoples, defined as Indians, Métis and Inuit peoples. Bringing Métis people under federal jurisdiction makes the two provisions consistent. Including people of aboriginal ancestry who have not been granted formal “Indian status” also accords with the government’s historical assumption that it could legislate over all Aboriginal Peoples, regardless of Indian status.
The Court determined that this declaration would have significant practical utility for Métis and non-status Indians, as it would prevent the federal and provincial governments from continually ‘passing the buck’, a practice which had financial consequences to these communities and individuals due to lack of government attention and funding.
The SCC noted that its ruling did not impose a “duty to legislate” on the federal government. As a result, the implications of this decision for the federal government as well as third parties dealing with Métis and non-status Indians are unclear. However, Métis and non-status Indians may feel vindicated by the SCC’s decision, and entitled to hold the federal government accountable for fulfilling its legislative mandate.
Equally importantly, the SCC acknowledged but left unresolved the difficult problem of “who is considered Métis or a non-status Indian.” In what might be considered an understatement, the SCC noted that the “definitional contours” of this issue are “imprecise.” There is a test for Métis rights, which the SCC established in prior cases (Powley and Blais). Yet the SCC expressly declined to affirm that test for jurisdictional purposes, leaving it to Parliament or future court decisions to determine exactly who falls within the broad federal jurisdiction over all Aboriginal Peoples in Canada — Inuit, Métis and Indians, both status and non-status.
PROVINCIAL AND OTHER IMPLICATIONS
A further issue that the SCC left for future determination relates to provincial legislation that expressly addresses Métis issues. For example, Alberta has adopted the Métis Settlements Act and related laws, setting aside land for Métis communities. Provincial legislation regarding a subject matter within federal jurisdiction may be declared invalid (“ultra vires”) by a court. Seeking to avoid such implications, the SCC reiterated its preference that statutes enacted by both levels of government should be permitted to operate harmoniously.
Finally, apart from the brief reference to negotiation in the context of the third declaration sought by the plaintiffs (but not granted), the SCC declined to address the extent to which non-status Indians are entitled to be consulted regarding proposed resource development. This topic, which is potentially significant to project proponents, investors and other third parties, may be the subject of future legislative and judicial consideration.
In summary, the primary effect of the SCC’s decision is to empower Métis and non-status Indians to turn to the federal government to address their concerns. It remains to be seen who falls within those categories, what rights they have, and how their concerns may affect resource development in Canada.