A recent Federal Court decision clarifies and extends federal
jurisdiction to Métis and non-status Indians. This ruling is
significant because there could be broad financial and policy
implications for the federal government. However, resource projects
are not affected as the case relates to the interpretation of the
government's constitutional jurisdiction over Indians rather
than an assessment of Aboriginal rights or consultation.
Daniels is not a Section 35 case nor is it about Aboriginal rights
under the Constitution Act, 1982.
The Federal Court released its decision in Daniels v
Canada (Daniels) on January 8, 2013. The issue in this case
was whether Métis and non-status Indians (MNSI) are included
in the definition of "Indians" under Section 91(24) of
the Constitution Act, 1867 (Constitution). The
Constitution sets out the areas of exclusive jurisdiction held by
the federal and provincial governments. Section 91(24) of the
Constitution assigns responsibility for "Indians, and Lands
reserved for the Indians" to the federal government.
MNSI were largely excluded from the definition of
"Indian" under the federal Indian Act, programs
and policies. As a result, the Plaintiffs alleged that MNSI have
access to more limited government services and as a result
The Plaintiffs sought declarations that: (1) MNSI are
"Indians" within the meaning of Section 91(24); (2) the
federal Crown owes a fiduciary duty to MNSI as Aboriginal people;
and (3) that MNSI have a right to be consulted and negotiated with
by the federal government. The first declaration was granted and
the others were dismissed.
The Court concluded that the term "Indian" under
Section 91(24) encompasses MNSI. The second and third
requests were dismissed as there were insufficient facts provided
regarding specific breaches to support such declarations.
Implications of the Daniels case
The Daniels case likely has significant financial, legislative
and political impacts as a result of the Court determining that the
federal government has responsibility for MNSI. There are early
indications that the federal Government is considering an appeal of
This case could also have implications for Alberta which has
legislation recognizing provincial jurisdiction for Métis.
Under the Métis Settlements Act, the Alberta
government created a number of settlements for Alberta
Métis. It is unclear how the Daniels decision will affect
the legal standing of the Métis settlements in Alberta and
whether any group will challenge the legislation on the basis that
the federal government has exclusive jurisdiction over Indians,
The Court in Daniels was careful to distinguish its analysis of
Section 91(24) of the Constitution Act, 1867 from the
assessment of Aboriginal rights and the duty to consult under
Section 35 of the Constitution Act, 1982. The Court
refused to grant a declaration that the federal government consult
with MNSI since the duty to consult depends on the subject matter,
the strength of the claim and other factors not before the Court.
Accordingly, resource developers are still advised to consult with
potentially affected Aboriginal groups (which may already include
certain MNSI groups) if they require government approval for a
project. To the extent that the constitutional status of the MNSI
was a barrier to any consultations, it is no longer, following
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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