On April 14, 2016 the Supreme Court of Canada (“SCC”) released the Daniels decision which answered the question of whether the federal government or provincial governments hold legislative jurisdiction over Métis and non-status Indians (the “Claimant Groups”). In a unanimous decision delivered by Justice Abella, the SCC found that both Métis and non-status Indians are “Indians” within the meaning of s. 91(24) [‘Indians and Lands reserved for the Indians’] of the Constitution Act, 1867 and therefore under the legislative jurisdiction of the federal government.
THE COURTS BELOW
Throughout the proceedings the plaintiffs sought the following 3 declarations:
1. Métis and non-status Indians are “Indians” under s. 91(24) of the Constitution Act, 1867;
2. The federal government owes a fiduciary duty to Métis and non-status Indians; and
3. Métis and non-status Indians have the right to consultations and negotiations with the federal government respecting all their rights, interests and needs as Aboriginal peoples.
At the trial level, the Federal Court granted the first declaration, but rejected the second and third declarations on the grounds that they were “vague and redundant.”
On appeal, the Federal Court of Appeal largely accepted the Federal Court’s reasons but limited the first declaration by excluding non-status Indians on the basis that the federal government had conceded they were included within the definition of “Indians” for the purposes of s. 91(24).
The SCC began by considering whether there was “practical utility” in granting the declarations the plaintiffs sought. In this regard, the SCC noted the Claimant Groups had been subjected to a “jurisdictional wasteland” − with both the federal and provincial governments denying responsibility and legislative authority − resulting in denial of material benefits, significant disadvantage and negative consequences. Justice Abella reasoned that the declarations sought by the plaintiffs would undeniably result in bringing an end to this “jurisdictional tug-of-war” and provide some level of certainty and accountability.
Are Métis and non-status Indians “Indians”?
Justice Abella agreed with the Federal Court and concluded that both Métis and non-status Indians are “Indians” for the purposes of s. 91(24) of the Constitution Act, 1867. The SCC clarified that the federal authority to legislate with respect to the Claimant Groups does not obligate the federal government to exercise such authority nor does it prevent valid provincial legislation from applying to the Claimant Groups.
With respect to non-status Indians, the federal government had conceded that they were “Indians” within the scope of s. 91(24). Unlike the Federal Court of Appeal, the SCC found that including them in the declaration would prevent any future uncertainty with respect to legislative jurisdiction.
With respect to the Métis, the SCC considered a number of factors to support its conclusion, including:
-The term “Indians” has long been used as a catchall for all Indigenous peoples, including those of mixed-ancestry such as the Métis. This fact was reflected in the federal government’s classification of Métis as Indians for the purposes of historical treaty-making and legislation.
-After confederation, the federal government could have only realized its westward expansion by having authority over all Indigenous peoples who occupied the land, which included the Métis.
-Many Métis lived on Indian reserves and participated in “Indian Treaties,” despite their ancestors having been awarded scrip. The federal government determined that such persons should remain as registered Indians under the Indian Act, exercising some level of jurisdiction over the Métis.
-The definition of “aboriginal peoples of Canada” under s. 35 of the Constitution Act, 1982 includes “Indian, Inuit and Métis.” Inuit have already been determined to be “Indians” under s. 91(24). The exclusion of Métis from s. 91(24) would be “constitutionally anomalous” as it would make the Métis the only Aboriginal peoples to be recognized in s. 35, but not included within the scope of s. 91(24).
The SCC left for another day the issue of who is Métis or a non-status Indian for the purposes of s. 91(24) noting that “it is a fact-driven question to be decided on a case-by-case basis in the future.” It was further noted that no consensus exists for who can be considered Métis or a non-status Indian. ‘Metis’ may apply to historic communities such as the Red River settlement, or anyone with mixed European and Aboriginal heritage; ‘non-status Indian’ may apply to Indians who no longer have status, or who have simply never been recognized as Indians by the federal government. Despite these uncertainties, the SCC held that this did not preclude it from making its determination that the Claimant Groups, however they are defined, are within the scope of s. 91(24).
While not answering the question of who is Métis for the purposes of s. 91(24), the SCC held that it would not be answered by the “Powley test” which was developed by the SCC for the purposes of determining Métis rights holders pursuant to s. 35 of the Constitution Act, 1982. Under the Powley test, Métis rights holders have to demonstrate self-identification as Métis, an ancestral connection to an historic Métis community and acceptance by a contemporary Métis community. The SCC rejected this approach here by reasoning that the third criteria in particular would preclude those who may no longer be accepted by their communities for various reasons from being included within the scope of s. 91(24). The result is that the s. 91(24) test will be broader than the s. 35 Powley test.
The SCC held it is already established law that the Crown has a fiduciary relationship with all Aboriginal peoples. Therefore, it did not grant the second declaration the plaintiffs had sought.
Duty to Consult and Negotiate
Similarly, as it is already established law that the Crown owes a context-specific duty to negotiate when Aboriginal rights are engaged, the SCC did not grant the third declaration sought by the plaintiffs.
It is important to understand what the Daniels decision is not. This decision does not grant the Claimant Groups status under the Indian Act. Indeed, this decision does not grant Métis or non-status Indians any material benefits beyond that which they had in the days preceding the decision.
The SCC noted that the federal government has no obligation to exercise its legislative authority over Métis and non-status Indians. In fact, as it conceded at trial, the federal government has long considered non-status Indians to fall within the scope of s. 91(24) but has chosen not to legislate with respect to them. The SCC’s affirmation that the Crown has a fiduciary relationship with all Aboriginal peoples also does not mean that there is a particular fiduciary duty owed by the federal government to Métis or non-status Indians.
This decision also does not concern Métis rights under s. 35 of the Constitution Act, 1982. Presumably, the SCC’s decisions in Tsilhqot’in and Grassy Narrows, which solidified the role of provincial governments in relation to Aboriginal title, Aboriginal rights and Treaty rights, also extends to Aboriginal rights held by the Métis.
What the decision does provide is clarity to Métis and non-status Indians that it is the federal government from whom they should seek redress with respect to material benefits they have been historically denied. This is likely to be the subject of extensive negotiations and possibly litigation with the federal government in the future.
This case summary provides our general comments on the case discussed and should not be relied on as legal advice. If you have any questions about this case or any similar issue, please contact any of our lawyers.