2013 FC 6

Introduction

On January 8, 2013, the Federal Court of Canada (FCC) released its reasons in Harry Daniels, Gabriel Daniels, Leah Gardner, Terry Joudrey and the Congress of Aboriginal Peoples v. Her Majesty the Queen, as represented by the Minister of Indian Affairs and Northern Development and the Attorney General of Canada (Daniels).

The Plaintiffs were three individuals who identified as Métis or non-status Indians (defined in Daniels and herein as MNSI), as well as the Congress of Aboriginal Peoples, an organization that represents the interests of MNSI in Canada. They sought three declarations from the FCC:

  1. that MNSI are "Indians within the meaning of sub-section 91(24) of the Constitution Act, 1867 (S. 91(24)),which grants the federal government exclusive authority to legislate in relation to "Indians and Lands Reserved for the Indians";
  2. that the Queen (in right of Canada) owes a fiduciary duty to the MNSI as Aboriginal peoples; and
  3. that the MNSI have a right to be consulted and negotiated with, in good faith, by the federal government on a collective basis through representatives of their choice, representing all of their rights, interests and needs as Aboriginal peoples.

The FCC granted the first declaration and held that MNSI fall within the category of "Indians" within the meaning of S. 91(24), and as such, are within the jurisdiction of the federal government of Canada. However, the FCC declined to make the other two declarations, as the Plaintiffs did not raise specific facts on which to base their claim or on which it would be appropriate for the Court to issue a declaration.

MNSI in Canada

The Métis peoples of Canada, along with Indians and Inuit, comprise the "Aboriginal peoples of Canada" whose rights are recognized and affirmed under section 35 of the Constitution Act, 1982 (S. 35). However, with the exception of general guidance by the Supreme Court of Canada and by the FCC in Daniels, there is no definitive legal definition for "Métis," and interpretations vary. In some contexts, the term "Métis" has been used to describe all individuals of mixed Aboriginal and non-Aboriginal ancestry. It has also been used in a more restricted context to describe individuals who trace their ancestry back to the historic "Métis Nation" emanating primarily from Manitoba. In another context, the changing definition of "Indian" under the federal Indian Act, R.S.C. 1985, c. I-5 (Indian Act) has meant that in some cases, individuals who once identified as "Indian" lost their registration as "Indian," and have otherwise been considered "Métis."

Non-status Indians generally are viewed as having two distinct qualities: (1) they have no status under the Indian Act, and (2) they have Indian heritage. The FCC in Daniels stated that non-status Indians are those to whom status could be granted by federal legislation. They have an ancestral connection, not necessarily genetic, to those considered "Indians" either in law or fact, or any person who self-identifies as an Indian and is accepted as such by the Indian community, a locally organized community, branch or council of an Indian association or organization with which that person wishes to be associated.

The Parties’ Claims

The Plaintiffs sought declaratory relief from the FCC, rather than specific relief for themselves on the basis of factual claims. The Plaintiffs’ argument rested on the assertion that due to the federal government’s refusal to recognize MNSI as "Indians" under S. 91(24), MNSI had "suffered deprivations and discrimination in the nature of lack of access to health care, education and other benefits available to status Indians; lack of access to material and cultural benefits; being subjected to criminal prosecutions for exercising Aboriginal rights to hunt, trap, fish and gather on public lands; and being deprived of federal government negotiations on matters of Aboriginal rights and agreements."

The Defendant government opposed the Plaintiffs’ claims on the basis that in fact and in law, Métis were not, historically, considered "Indians" and that there is no group legally known as "non-status Indians." The Defendants also opposed the Plaintiffs’ allegations of historical deprivation and discrimination of MNSI.

Federal Court Decision

The FCC agreed that it was appropriate for the Plaintiffs to seek declaratory relief for reasons of public interest (as significant time and public resources had already been expended), and on the basis that declaratory relief on a constitutional and jurisdictional issue is an equitable remedy available to courts.

The primary issue in the litigation was whether the federal government has jurisdiction to legislate in respect of MNSI because they are within the definition of "Indians" under S. 91(24). The FCC considered historical evidence from several expert witnesses regarding the original purposes for granting jurisdiction over "Indians and land reserved for Indians" to the federal government under S. 91(24). The FCC considered that S. 91(24) was intended to allow the federal government to control "native peoples" (as that term was used by the FCC in Daniels) and communities to facilitate development, to honour the Dominion’s obligations to "native peoples" while extinguishing interests that impeded the objects of Confederation, and eventually to civilize and assimilate "native peoples." The FCC further considered that the framers of the Constitution would have intended the word "Indian" and the power that went with it to be a broad power in order to deal with the diversity and complexity of the "native" population.

The FCC also considered whether the federal government had historically exercised jurisdiction over MNSI. The FCC referred to certain policy documents of the federal government from the 1980s, which acknowledged that the federal government theoretically had jurisdiction to legislate in all domains in respect of MNSI, but that the federal government later rejected such jurisdiction when policy and financial concerns changed that acceptance. The FCC also heard historical evidence to support the Plaintiffs’ claim that Métis were generally treated as "Indians" in legislation and practice, and that non-status Indians have ancestors who were Indians, or are those who self-identify as Indians and are mutually accepted by Indian communities or associations as such. The FCC also noted that the federal government had previously acknowledged that MNSI, "lacking even the protection of the Department of Indian Affairs and Northern Development, are far more exposed to discrimination and other social disabilities" and that "in the absence of Federal initiative in this field they are the most disadvantaged of Canadian citizens."

On the evidence, and taking a broad and purposive approach to interpretation of the meaning of "Indians," the FCC held that MNSI are included within the meaning of "Indians" under S. 91(24).

However, the FCC declined to grant the second and third declarations sought by the Plaintiffs, that the Crown owes a fiduciary duty to MNSI, and that the federal government has an obligation to consult and negotiate in good faith with the representatives of MNSI. In respect of the second declaration, the FCC acknowledged that as a matter of law, a general fiduciary relationship exists as a result of the declaration that MNSI are Indians pursuant to S. 91(24). However, a fiduciary duty can only be found in relation to a specific interest and in this case, the Plaintiffs did not raise evidence of a specific interest for which a fiduciary duty might be found. However, the FCC stated that it expected that in future, the federal government "would act in accordance with whatever duty arises in respect of any specific matter touching on the non-clarified fiduciary relationship."

Regarding the third declaration sought by the Plaintiffs, the FCC similarly held that the case before it lacked reference to a specific subject matter that would require consultation or negotiation. Therefore, the FCC declined to issue a general declaration on the Crown’s duty to consult and negotiate. However, the FCC remarked that to the extent that the issue of the constitutional status of MNSI as "Indians" had been a barrier to consultation in a particular circumstance, the FCC’s first declaration acknowledging the constitutional status of MNSI under S. 91(24) should remove such impediments.

Discussion

Effect of Federal Constitutional Jurisdiction Over MNSI

In practical terms (and subject to a different outcome on appeal), Daniels removes the uncertainty regarding whether MNSI are under the jurisdiction of the federal or provincial governments and confirms that the federal government has jurisdiction to legislate specifically in respect of MNSI peoples in their capacity as MNSI. Prior to Daniels, both heads of government could maintain that they did not have jurisdiction over Métis, thereby avoiding financial or other obligations. This resulted in a jurisdictional gap, in which MNSI were not officially recognized in their capacity as MNSI as falling within the purview of federal or provincial powers. The FCC acknowledged that the "political/policy wrangling between the federal and provincial governments has produced a large population of collaterally damaged MNSI" who have been "deprived of programs, services and intangible benefits recognized by all governments as needed."

However, despite Daniels adding this jurisdictional certainty, in our view, the recognition of MNSI within S. 91(24) does not create any new rights for either group, or any immediate or identifiable legal obligations or responsibilities for the federal government to create laws to provide specific benefits to MNSI peoples. If any new rights are to be created for MNSI, this will be the result of Parliament’s decision to exercise its legislative jurisdiction over MNSI. Daniels does not provide any guidance regarding how the federal government should choose to exercise its jurisdiction over MNSI or whether it is required to act as a result of such jurisdiction.

Although the federal government is not, as a result of Daniels, under any specific legal obligations to now legislate in respect of MNSI, the effect of Daniels may be to create pressure or expectations on the federal government to legislate and provide financial or other benefits to MNSI (such as support for post-secondary tuition, on-reserve social programs, certain additional health coverage and services, and tax exemptions), particularly given the historical disparity in funding and programs provided to "Indians" versus MNSI.

It is worthwhile to note that the meaning of "Indians" under S. 91(24) is broader than the definition of "Indians" in the Indian Act. The class of people who are "Indians" under S. 91(24) includes Indians who are not necessarily "status" Indians under the Indian Act, whereas the Indian Act expressly does not apply to non-status Indians. While S. 91(24) gives power to Parliament to legislate over a category of people defined as "Indians," it is up to Parliament to determine how to exercise that jurisdiction, for example, by enacting legislation (such as the Indian Act) within its constitutional limits. Not only can Parliament set qualifications for admission to "Indian" status under the Indian Act, but it can also amend the Indian Act in order to add or reduce the number of persons entitled to "Indian" status, which the government has done from time to time. This distinction in the definitions of Indian in S. 91(24) and in the Indian Act is important because the FCC’s finding that MNSI are "Indians" in a constitutional sense does not automatically mean they are also included under the provisions of the Indian Act or entitled to the rights and benefits that are conferred under it. Rather, it will be up to Parliament to decide how to legislate in respect of MNSI, and whether to legislate at all.

S. 35 and the Duty to Consult

Daniels

does not create any new legal rights for MNSI in terms of benefits or their rights in respect of the Crown’s duty to consult with MNSI. The FCC stated at the outset that the case was limited to interpreting the meaning of the term "Indian" within the scope of S. 91(24) and that this meaning is not the same as the definition of "Indian" under the Indian Act or the definition of "Aboriginal Peoples" in S. 35. In fact, the Aboriginal rights of Métis peoples of Canada (and in our view, also non-status Indians) are already recognized and affirmed under S. 35(1), which recognizes and affirms existing Aboriginal and treaty rights. S. 35(2) of the Constitution expressly defines "Aboriginal Peoples of Canada" under S. 35(1) as including the Indian, Inuit and Métis peoples of Canada. In our view, MNSI are entitled to the rights and protections of S. 35, including being owed a duty to consult whenever their Aboriginal rights or interests may be adversely affected in respect of government action.

However, as noted above, a potential effect of Daniels could be increased expectations of MNSI peoples to derive benefits from the Crown or from resource project proponents. While such expectations would not reflect any new legal obligations of government towards MNSI, it could increase practical risks of project implementation in certain circumstances.

Unresolved Issues

Daniels

is not a full answer to the issues regarding MNSI in Canada. The FCC did not consider the nature and extent of the fiduciary duty owed by the Crown towards MNSI, but noted that there was no dispute that the Crown has a fiduciary relationship with Aboriginal peoples both historically and pursuant to S. 35. This is an issue that could arise in future litigation.

Another unresolved issue is the question of who is legally a Métis and who is a non-status Indian for the purposes of both S. 91(24) and S. 35. Uncertainty regarding the definitions of MNSI will continue to pose practical issues for the federal and provincial Crown and for project proponents in identifying the appropriate Aboriginal groups, and their representative organizations, with whom to consult.

The government has appealed the Daniels decision to the Federal Court of Appeal and, in our view, the matter is still far from settled, particularly given the potential financial burdens on the federal government that may flow from this decision. Future litigation may also arise in which MNSI seek to obtain specific benefits or entitlements to which they claim they have been historically deprived.