On appeal from the judgment of the Federal Court of Appeal (2014 FCA 101), setting aside a decision of Phelan J. (2013 FC 6)

Three declarations are sought in this case: (1) that Métis and non status Indians are “Indians” under s. 91(24) of the Constitution Act, 1867; (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.

The trial judge’s conclusion was that “Indians” under s. 91(24) is a broad term referring to all Indigenous peoples in Canada. He declined, however, to grant the second and third declarations. The Federal Court of Appeal accepted that “Indians” in s. 91(24) included all Indigenous peoples generally. It upheld the first declaration, but narrowed its scope to exclude non status Indians and include only those Métis who satisfied the three criteria from R. v. Powley, [2003] 2 S.C.R. 207. It also declined to grant the second and third declarations. The appellants sought to restore the first declaration as granted by the trial judge, and asked that the second and third declarations be granted. The Crown cross appealed, arguing that none of the declarations should be granted. It conceded that non status Indians are “Indians” under s. 91(24).

Held (9-0) :

The first declaration should be granted: Métis and non status Indians are “Indians” under s. 91(24).

The appeal should therefore be allowed in part.

The Federal Court of Appeal’s conclusion that the first declaration should exclude non status Indians or apply only to those Métis who meet the Powley criteria, should be set aside, and the trial judge’s decision restored.

The trial judge’s and Federal Court of Appeal’s decision not to grant the second and third declarations should be upheld.

The cross appeal should be dismissed.

A declaration can only be granted if it will have practical utility, that is, if it will settle “a live controversy” between the parties. The first declaration, whether non status Indians and Métis are “Indians” under s. 91(24), would have enormous practical utility for these two groups who have found themselves having to rely more on noblesse oblige than on what is obliged by the Constitution. A declaration would guarantee both certainty and accountability. 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. While finding Métis and non status Indians to be “Indians” under s. 91(24) does not create a duty to legislate, it has the undeniably salutary benefit of ending a jurisdictional tug of war.

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. “Indians” has long been used as a general term referring to all Indigenous peoples, including mixed ancestry communities like the Métis. Before and after Confederation, the government frequently classified Aboriginal peoples with mixed European and Aboriginal heritage as Indians. Historically, the purpose of s. 91(24) in relation to the broader goals of Confederation also indicates that since 1867, “Indians” meant all Aboriginal peoples, including Métis.

As well, the federal government has at times assumed that it could legislate over Métis as “Indians”, and included them in other exercises of federal authority over “Indians”, such as sending many Métis to Indian Residential Schools — a historical wrong for which the federal government has since apologized. Moreover, while it does not define the scope of s. 91(24), s. 35 of the Constitution Act, 1982 states that Indian, Inuit, and Métis peoples are Aboriginal peoples for the purposes of the Constitution. This Court has noted that ss. 35 and 91(24) should be read together. “Indians” in the constitutional context, therefore, has two meanings: a broad meaning, as used in s. 91(24), that includes both Métis and Inuit and can be equated with the term “aboriginal peoples of Canada” used in s. 35, and a narrower meaning that distinguishes Indian bands from other Aboriginal peoples. It would be constitutionally anomalous for the Métis to be the only Aboriginal people to be recognized and included in s. 35 yet excluded from the constitutional scope of s. 91(24).

The jurisprudence also supports the conclusion that Métis are “Indians” under s. 91(24). It demonstrates that intermarriage and mixed ancestry do not preclude groups from inclusion under s. 91(24). The fact that a group is a distinct people with a unique identity and history whose members self identify as separate from Indians, is not a bar to inclusion within s. 91(24). Determining whether particular individuals or communities are non status Indians or Métis and therefore “Indians” under s. 91(24), is a fact driven question to be decided on a case by case basis in the future.

As to whether, for purposes of s. 91(24), Métis should be restricted to the three definitional criteria set out in Powley in accordance with the decision of the Federal Court of Appeal, or whether the membership base should be broader, there is no principled reason for presumptively and arbitrarily excluding certain Métis from Parliament’s protective authority on the basis of the third criterion, a “community acceptance” test. The criteria in Powley were developed specifically for purposes of applying s. 35, which is about protecting historic community held rights. Section 91(24) serves a very different constitutional purpose. The constitutional changes, the apologies for historic wrongs, a growing appreciation that Aboriginal and non Aboriginal people are partners in Confederation, as well as the Report of the Royal Commission on Aboriginal Peoples and the Final Report of the Truth and Reconciliation Commission of Canada, all indicate that reconciliation with all of Canada’s Aboriginal peoples is Parliament’s goal.

The historical, philosophical, and linguistic contexts establish that “Indians” in s. 91(24) includes all Aboriginal peoples, including non status Indians and Métis. The first declaration should accordingly be granted.

Federal jurisdiction over Métis and non status Indians does not mean that all provincial legislation pertaining to Métis and non status Indians is inherently ultra vires. As this Court has recognized, courts should favour, where possible, the operation of statutes enacted by both levels of government.

Reasons for judgment by Abella J.

Neutral citation: 2016 SCC 12

Docket Number: 35945