On January 8, the Federal Court issued a declaration1 that Métis and non-status Indians in Canada are "Indians" within the meaning of subsection 91(24) of the Constitution Act, 1867.2 Non-status Indians and Métis are Aboriginal groups that do not have any status under the Indian Act3 but that self-identify as Aboriginal and are recognized as such by an Aboriginal community.
The motion was filed in 1999 by Harry Daniels, a well-known defender of Métis rights, Leah Gardner, a non-status Indian, Terry Joudrey, also a non-status Indian, and the Congress of Aboriginal Peoples, which represents Métis and non-status Indians across Canada.
Initially, the plaintiffs asked the Court to issue the following declarations:
- 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;
- that the Queen (in the right of Canada) owes a fiduciary duty to Métis and non-status Indians as Aboriginal people;
- 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.
For the reasons given below, the Court refused to comment on the last two matters.
Indian status of Métis and non-status Indians
Sections 91 and 92 of the Constitution Act, 1867 determine the division of powers between the federal government and the provincial governments. Section 91(24) of that Act confers upon the federal government jurisdiction in relation to Indians and lands reserved for Indians.
The plaintiffs argued that they were suffering from the fact that the provincial governments and the federal government were engaged in jurisdictional avoidance, with each level of government denying responsibility for Métis and non-status Indians. They therefore sought to have the Court rule on their status as Indians under the Constitution Act, 1867.
The Court, after taking a long, hard look at the body of historical evidence submitted by each party, gave the Métis and non-status Indians the constitutional certainty they were seeking with regard to their status as Indians within the meaning of s 91(24) of the Constitution Act, 1867. By recognizing Métis and non-status Indians as "Indians" within the meaning of s 91(24), the Court clarified the federal government's exclusive jurisdiction to legislate not only in relation to Indians covered by the Indian Act but also in regard to Métis and non-status Indians.
First of all, this Federal Court declaration does not mean that Métis and non-status Indians are now subject to the Indian Act nor does it result in recognition of ancestral rights.
The impact of the declaration is related solely to the determination of the federal government's exclusive jurisdiction in relation to Métis and non-status Indians, who are now considered "Indians" within the meaning of s. 91(24) of the Constitution Act, 1867. As the declaration points out, the decision does not result in any duty to legislate or any access to specific programs. Consequently, the federal government is not under an obligation to legislate or create programs and services for these Aboriginal groups. However, the federal government will have exclusive jurisdiction to do so if it so desires.
This decision will likely lead to further litigation and possible political pressure aimed at enabling Métis and non-status Indians to benefit from federal programs. In this respect, it is interesting to recall the Supreme Court's decision in Lovelace4 in 2000. In that case, Ontario had determined that casino proceeds (the First Nations Fund) would be distributed only to Ontario First Nations communities registered as bands under the Indian Act. The appellants – non-band First Nations communities and Métis – contended that the exclusion of certain Aboriginal groups not registered as bands was a discriminatory practice under s 15 of the Canadian Charter of Rights and Freedoms and that Ontario had acted ultra vires the Constitution Act, 1867. In the end, the Supreme Court found that the province's actions had not only not been discriminatory under the Canadian Charter of Rights and Freedoms, but also had not been ultra vires since, in the Court's view, the province had simply exercised its constitutional spending power and there was nothing in the casino program affecting the core of s 91(24) federal jurisdiction under the Constitution Act, 1867.
Absent specific facts, the Court refused to issue a declaration on the matter of fiduciary duty. According to the Court, the fiduciary relationship existed as a matter of law flowing from the declaration that Métis and non-status Indians were Indians within the meaning of s 91(24) and that the federal government had jurisdiction in relation to such peoples. The Court stated that one would therefore expect that the federal government would act in accordance with whatever duty arises in respect of any specific matter touching on the non-clarified fiduciary relationship.
Duty to consult and negotiate
As regards consultation and negotiation, the Court stated that the duty to consult and negotiate depended on the subject matter, the strength of the claim and other factors not before the Court. Consequently, the Court also refused to comment on this matter because of the lack of better particulars. However, it indicated that to the extent that the issue of the constitutional status of Métis and non-status Indians was something of a barrier to consultation, the declaration granted should remove such impediments.
1 Daniels v Canada, 2013 FC 6.
2 Constitution Act, 1867, 30 & 31 Victoria, c 3 (UK)
3 Indian Act, RSC 1985, c I-5
4 Lovelace v Ontario,  1 SCR 950.
Norton Rose Group
Norton Rose Group is a leading international legal practice. We offer a full business law service to many of the world's pre-eminent financial institutions and corporations from offices in Europe, Asia, Australia, Canada, Africa, the Middle East, Latin America and Central Asia.
Knowing how our clients' businesses work and understanding what drives their industries is fundamental to us. Our lawyers share industry knowledge and sector expertise across borders, enabling us to support our clients anywhere in the world. We are strong in financial institutions; energy; infrastructure, mining and commodities; transport; technology and innovation; and pharmaceuticals and life sciences.
We have more than 2900 lawyers operating from 43 offices in Abu Dhabi, Almaty, Amsterdam, Athens, Bahrain, Bangkok, Beijing, Bogotá, Brisbane, Brussels, Calgary, Canberra, Cape Town, Caracas, Casablanca, Dubai, Durban, Frankfurt, Hamburg, Hong Kong, Johannesburg, London, Melbourne, Milan, Montréal, Moscow, Munich, Ottawa, Paris, Perth, Piraeus, Prague, Québec, Rome, Shanghai, Singapore, Sydney, Tokyo, Toronto and Warsaw; and from associate offices in Dar es Salaam, Ho Chi Minh City and Jakarta.
Norton Rose Group comprises Norton Rose LLP, Norton Rose Australia, Norton Rose Canada LLP, Norton Rose South Africa (incorporated as Deneys Reitz Inc), and their respective affiliates.
On January 1, 2012, Macleod Dixon joined Norton Rose Group adding strength and depth in Canada, Latin America and around the world. For more information please visit nortonrose.com.
Norton Rose will join forces with Fulbright & Jaworski L.L.P on June 1, 2013, creating Norton Rose Fulbright a global legal practice with significant depth of expertise across the USA, Europe, Asia, Australia, Canada, Africa, the Middle East, Latin America and Central Asia.
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.