Canada: Federal Court Of Appeal Confirms That Métis Fall Within Federal Jurisdiction Under Constitution

On April 17, 2014, the Federal Court of Appeal allowed the appeal, in part, of a January 2013 Federal Court decision extending federal jurisdiction to Métis and non-status Indians by modifying the Federal Court's declaration as only applying to Métis, and not non-status Indians (for background on the trial decision, refer to the January 14, 2013  Osler Update).

Background

The applicants in Daniels v. Canada consisted of individuals who identified as a Métis, a non-status Indian from Ontario (who referred to herself as "Anishanabe without status"), a non-status Mi'kmaq Indian from Nova Scotia, along with the Congress of Aboriginal Peoples. The applicants sought declarations that: (1) Métis and non-status Indians are "Indians" within the meaning of Section 91(24) of the Canadian Constitution; (2) the federal Crown owes a fiduciary duty to Métis and non-status Indians as Aboriginal peoples; and (3) that Métis and non-status Indians have a right to be consulted and negotiated with by the federal government. At the lower court, the first declaration was granted and the others were dismissed.

On appeal, the federal Crown, along with the Attorney General of Alberta (acting as an intervenor), requested that the lower court's declaration that the Métis and non-status Indians are "Indians" within the meaning of Section 91(24) of the Canadian Constitution be set aside. On cross-appeal, the original applicants asked the Federal Court of Appeal to grant the second and third declarations sought.

The Federal Court of Appeal confirmed the lower court's declaration as it relates to Métis, but overturned the declaration as it relates to non-status Indians. The Federal Court of Appeal reframed the declaration as "The Court declares that the Métis are included as 'Indians' within the meaning of s. 91(24) of the Constitution Act, 1867."

Reasons

The Court of Appeal surveyed the trial judge's findings of fact, including his finding that both Métis and non-status Indians could be brought within the race-based meaning of "Indians" in s. 91(24) by way of marriage, affiliation, intermarriage, and that of their "Indianness" (rather than other factors such as language, religion or connection to European heritage).

The appellants sought to challenge the trial judge's findings on the grounds that the declaration lacked practical utility. The Court of Appeal rejected this argument, at least as it applied to the Métis, because the trial judge made findings of fact to the effect that the federal government had, at various times, accepted constitutional jurisdiction over the Métis until the mid-1980s, when matters of policy and financial considerations changed that acceptance. Moreover, the Court of Appeal found that disputes between the federal and provincial governments about jurisdiction had deprived the Métis of beneficial programs and services, and that the resolution of this constitutional uncertainty had the potential to bring clarity to the obligations of each level of government.

In contrast, the Court of Appeal excluded non-status Indians from the declaration on the basis that this declaration would lack practical utility. The Court reasoned that because non-status Indians could already be granted status through s. 91(24) for the purposes of that section, a declaration to that effect would be redundant and would therefore lack practical utility. The Court of Appeal also noted that the reasons for excluding people from Indian status varied widely (e.g., failure to record during treaty process, losing status via historic inter-marriage, etc.), and as a result, it was inappropriate to generically determine the limits of the word "Indian" as it pertained to non-status Indians. Instead, a case-by-case analysis was required.

Other Findings

  1. Relationship to other jurisprudence on the definition of "Métis": The appellants argued that the Daniels decision was inconsistent with four previous Supreme Court of Canada decisions relating to the definition of Métis: Powley, Blais, Cunningham and Manitoba Métis Federation. The Court of Appeal agreed that the trial judge's definition of Métis, in particular the trial judge's use of the term "Indian heritage", was problematic (the trial judge described the Métis as "a group of native people who maintained a strong affinity for their Indian heritage without possessing Indian status. Their 'Indianness' was based on self identification and group recognition."). However, the Court of Appeal situated Daniels within the definitions developed in Powley, Cunningham and Manitoba Métis Federation by concluding that the trial judge meant "Indian heritage" to mean "indigenousness" or "Aboriginal heritage". 

    The Court of Appeal accepted the trial judge's distinguishing of this case from the findings by the Supreme Court in Blais on the basis that in Blais the Supreme Court left open the issue of whether the term "Indians" in section 91(24) included the Métis, and that the trial judge made sufficient findings of fact to bolster his conclusion that "Indians" included the Métis for the purposes of section 91(24).
  2. Fiduciary relationship but not necessarily a fiduciary duty: The Court of Appeal agreed with the trial judge's decision not to declare that the federal government owed a fiduciary duty to the Métis while still recognizing that the Crown has a fiduciary relationship with Aboriginal people. The Court of Appeal pointed to the Supreme Court's confirmation that the Métis are in a fiduciary relationship with the Crown in Manitoba Métis Federation, and that a declaration that a fiduciary duty existed in the absence of a specific fact scenario would lack utility.
  3. No blanket duty to consult: The Court of Appeal agreed with the trial judge's finding that a declaration that the Métis have a right to be consulted and negotiated with by the federal government was unnecessary because the duty to consult depends on the subject matter, the strength of the claim and other factors that were not before the Court.

Discussion

This decision is significant in that it confirms that the federal parliament has jurisdiction under section 91(24) for the "Métis." The bigger issue is what specific obligations, if any, does the federal government owe the Métis under section 91(24), and to what extent is this analysis applicable to Indians and Inuit under section 91(24). Namely, is it possible that provinces also have a role regarding Indians where there is a void or vacuum in the exercise of federal jurisdiction, as has been the case for the Métis? For those dealing with the Crown's duty to consult, this decision likely changes little in respect of legal or practical risks and analysis. 

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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