The implications of this decision clarify rights and
jurisdiction for a wide-swath of Métis and non-status
individuals across Canada, ending what the Supreme Court called a
"jurisdictional tug-of-war" and a "jurisdictional
wasteland." Prior to this, both federal and provincial
governments had denied legislative authority over such persons,
with some exceptions. Such individuals had to rely on the goodwill
of each government to obtain any recognition of their status or
rights, and any consultation over impacts to their traditional
practices. Now, such persons may have access to federal programs,
services and initiatives and may negotiate for recognition of their
At issue was whether Métis and non-status Indians were
"Indians" under s.91(24) of the Constitution Act,
1867; whether the federal Crown owes a fiduciary duty to such
persons; and whether Métis and non-status Indians have the
right to be consulted and negotiated with. Only the first issue was
The Court clarified the purposes of the Métis rights test
from Powley, stating that it was developed specifically
for the purposes of protecting historic community-held rights under
s. 35 of the Constitution Act, 1982, and that it did not
define who was or was not of Métis ancestry.
The second and third declarations were not granted. The Court
noted that Canada's Aboriginal peoples and Métis have a
fiduciary relationship with the Crown (see Manitoba
Métis Federation v. Canada (Attorney General),  1
SCR 623, and Delgamuukw v British Columbia,  3 SCR
1010). The Court did not elaborate on what such groups,
particularly non-status Indians, must demonstrate to trigger the
Relating to consultation, the Court stated that the duty to
consult is engaged when Aboriginal rights are asserted by
non-status Indians and Métis. This would be dependent on the
strength of the rights claim and sit along the Haida Nation v.
British Columbia (Minister of Forests),  3 SCR 511
consultation spectrum. The test and burden on non-status Indians to
demonstrate the right was not set; a prima facie case is
In the short term, the Daniels decision assists
Métis and non-status individuals as finally knowing who to
lobby and negotiate with in regards to their rights and status. In
the long term, the case will lead to further litigation on
consultation, and whether the Crown's fiduciary duty is engaged
relating to certain decisions affecting Métis and non-status
Indians. The key to future development will likely lie in the
strength of the rights claims asserted by these individuals.
If you are a business with knowledge of a rights claim by an
Aboriginal, Métis, or non-status Indian entity, an impact
benefit agreement may be a reasoned way to avoid delays in your
project and ensure the duty to consult and accommodate is met on
behalf of the Provincial and Federal Crown. Such agreements can
avoid litigation entirely, and provide benefits to both the group
asserting the right and the business undertaking the work.
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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