The Supreme Court of Canada allowed a leave application filed by the late Harry Daniels in regards to the April 2014 order of the Federal Court of Appeal (2014 FCA 101). The Court also granted leave to Canada to file a cross-appeal.

This proceeding concerns whether Métis and non-status Indians are “Indians” within the meaning of the expression “Indians and Lands reserved for the Indians” contained in s. 91(24) of the Constitution Act, 1867. In January 2013, Justice Phelan of the Federal Court granted one of the declarations sought by the appellant: 2013 FC 6. Phelan J., however, did not grant further declaratory relief sought by the appellant: (1) a declaration that the federal Crown owes a fiduciary duty to Métis and non-status Indians as Aboriginal peoples and (2) 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 their rights, interests and needs as Aboriginal peoples.

In April 2014, the Federal Court of Appeal allowed Canada’s appeal, in part, by deleting reference in the declaration to non-status Indians: 2014 FCA 101. The cross-appeal brought by the appellant Daniels was dismissed.

The appellant Daniels filed an application for leave to appeal, and Canada sought leave to file a cross-appeal. A summary of the case found on the Court’s website provides:

Constitutional law — Division of powers — Aboriginal law — Métis — Trial court issuing declaration that Métis and non-status Indians are “Indians” pursuant to s. 91(24) of the Constitution Act, 1867— Court of appeal varying declaration so as to exclude non-status Indians from scope of declaration — Whether Métis and non-status Indians are “Indians” pursuant to s. 91(24) so that the federal government has jurisdiction to make laws with respect to those peoples — Whether court of appeal erred in varying terms of declaration — Whether court of appeal erred in declining to grant additional declarations sought by applicants — Constitution Act, 1867, s. 91(24) .

In 1999, the applicants instituted proceedings in Federal Court in order to resolve a long-standing issue as to which of Canada or the provinces has jurisdiction over the Métis and non-status Indian peoples. Specifically, they sought to obtain a determination that the federal government has constitutional jurisdiction pursuant to s. 91(24) of the Constitution Act, 1867over Métis and non­status Indians. In Federal Court, they sought the following declarations:

  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; and
  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 Supreme Court of Canada granted the application for leave to appeal with costs in any event of the cause. Canada’s application for leave to cross-appeal was also granted. The Court ordered that any party that intervened in the Federal Court of Appeal and wishing to intervene at the SCC shall seek leave to intervene. The motion of the intervener Métis National Council for an extension of time to serve and file a response to the application for leave to appeal and for leave to file a response to the application for leave to cross-appeal was granted.

http://scc-csc.lexum.com/scc-csc/news/en/item/4757/index.do