Yesterday, the Supreme Court of Canada issued a unanimous decision in Daniels v Canada (Indian Affairs and Northern Development), 2016 SCC 12 declaring that non-status Indians and Métis are "Indians" under s 91(24) of the Constitution Act, 1867. The case has significant implications for non-status Indians and Métis people, reinforcing their rights to access federal programs and to negotiate for hunting, harvesting and land rights. While the case establishes clear federal jurisdiction, it also affirms that provincial jurisdiction may also apply if it does not impair the core federal power.
This legal battle began in 1999 when Métis leader, Harry Daniels, commenced an action alleging that non-status Indians and Métis were falling through the cracks by being denied rights as a result of both the provincial and federal governments refusing to accept jurisdiction.
The Federal Court of Canada issued a declaration in 2013 recognizing non-status Indians and Métis as "Indians" under s 91(24) of the Constitution Act, 1867. The court declined to issue two further declarations requested by Daniels: 1) that the federal Crown owes a fiduciary duty to Métis and non-status Indians; and 2) that Métis and non-status Indians have a right to be consulted and negotiated with by the federal government on their rights and needs as Aboriginal peoples.
In 2014, the Federal Court of Appeal upheld the Federal Court's declaration in relation to non-status Indians but limited the application of s 91(24) to only Métis who met the three requirements for Métis status for the purposes of s 35 of the Constitution Act, 1982 set out in R v Powley,  2 SCR 207, which in brief are:
- Self-identification as Métis;
- An ancestral connection to an historic Métis community; and
- Acceptance by the modern Métis community.
Section 35 of the Constitution Act, 1982 provides that Indian, Inuit, and Métis peoples are Aboriginal peoples for the purposes of the Constitution.
On appeal to the Supreme Court of Canada, the appellants sought three declarations as follows:
1. Métis and non-status Indians are "Indians" under s 91(24) of the Constitution Act, 1867
A unanimous court held that the term "Indians" in s 91(24) refers to all Aboriginal peoples, including non-status Indians and Métis. The court noted that s 35 of the Constitution Act, 1867 includes Métis people as Aboriginal people. Reading those sections together, it would be anomalous for Métis people to be recognized in s 35 but then excluded from s 91(24) – the only one of the three listed groups to be excluded.
The court declined to apply the Powley criteria for determining who qualifies as Métis, because that test was based on the community right to hunt for food under s 35 rather than the Crown's relationship with Aboriginal peoples under s 91(24). The question of who qualifies as non-status Indians or Métis is a fact-driven question that must be determined on a case-by-case basis.
The third criterion in Powley was a particular concern – acceptance by the modern Métis community. The court saw "no principled reason for presumptively and arbitrarily excluding them from Parliament's protective authority on the basis of a 'community acceptance' test".
As a result, the court declared that non-status Indians and Métis are "Indians" under s 91(24) and stated that "it is the federal government to whom they can turn."
2. The federal Crown owes a fiduciary duty to Métis and non-status Indians
The court held that well-settled law confirmed that Aboriginal peoples have a fiduciary relationship with the Crown. Since Métis and non-status Indians are Aboriginal people, the declaration is unnecessary and the court declined to issue it.
3. Métis and non-status Indians have the right to be consulted
The court also noted that previous decisions have recognized a context-specific duty to consult when Aboriginal rights are engaged. The court declined to grant this declaration because it would also be a restatement of existing law.
With respect to the circumstances in which a duty to consult may arise with Métis people, the Government of Alberta's Policy on Consultation with Metis Settlements on Land and Natural Resource Management came into force and was publicly released on March 31, 2016, which we summarized in an earlier update here.
Daniels clarifies what the Supreme Court of Canada characterized as a "jurisdictional wasteland" by finding that the federal government has jurisdiction over non-status Indians and Métis. The case has opened the door to First Nations rights claims that were previously unavailable to the estimated 400,000 non-status Indians and 200,000 Métis people in Canada.
While non-status Indians and Métis fall within the federal head of power under s 91(24), provincial jurisdiction may also apply so long as it does not impair the core of the federal jurisdiction over "Indians". This case reaffirms the court's preference to favour the operation of both provincial and federal laws where possible.
Whether an individual is a non-status Indian or Métis and therefore within the federal protection afforded to "Indian" under s 91(24) is a fact-driven question to be decided on a case-by-case basis. This case relaxed the Powley test in this circumstance. How far that relaxation will apply in other circumstances remains to be seen, but the ruling is likely to trigger claims by non-status Indians and Métis for recognition of hunting, harvesting and land rights.
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