On April 14, 2016, the Supreme Court of Canada issued its
decision in the highly anticipated case of Daniels v
Canada (Indian Affairs and Northern Development)
following years of litigation.
The SCC's decision recognizes that the over 600,000 people
who identify as Métis and non-status Indians in Canada are
"Indians" under s. 91(24) of the Constitution
Act, 1867 and as a result, creates certainty for
these groups and greater accountability for both the federal and
In Daniels, the appellants sought three
that Métis and non-status Indians are
"Indians" under s. 91(24) of the Constitution
that the federal Crown owes a fiduciary duty to Métis
and non-status Indians; and
that Métis and non-status Indians have the right to be
consulted and negotiated with.
The trial judge granted the first, but declined to grant the
second and third declarations. The Federal Court of Appeal accepted
that "Indians" in s. 91(24) include all Indigenous
peoples generally and upheld the first declaration; however, the
Court of Appeal narrowed the scope to exclude non-status Indians
and include only those Métis who satisfied the three
criteria from the SCC's decision in R. v Powley:
self-identification as Métis; an ancestral connection to a
historic Métis community; and acceptance by the modern
Métis community.2 The Court of Appeal also
declined to grant the second and third declarations.
In its recent judgment, the SCC held that the first declaration
should be granted, recognizing that Métis and non-status
Indians are "Indians" under s. 91(24) of the
Constitution. The SCC set aside the Federal Court of
Appeal's conclusion that the first declaration should exclude
non-status Indians or apply only to those Métis who meet the
Powley criteria. The SCC also upheld the trial
judge's and Federal Court of Appeal's decision not to grant
the second and third declarations.
The SCC made note of the consequences that the jurisdictional
uncertainty had caused for these groups:
Delineating and assigning constitutional
authority between the federal and provincial governments will have
enormous practical utility for these two groups who have, until
now, found themselves having to rely more on noblesse oblige than
on what is obliged by the Constitution ... Both federal and
provincial governments have, alternately, denied having legislative
authority over non-status Indian and Métis ... This results
in the Indigenous communities being in a jurisdictional wasteland
with significant and obvious disadvantaging consequences.
The SCC further noted that finding Métis and non-status
Indians to be "Indians" under s. 91(24) does not create a
duty to legislate but has "the undeniably salutary benefit of
ending a jurisdictional tug-of war in which these groups were left
wondering about where to turn for policy redress" (para.
Referring to a range of historical, academic, philosophical, and
linguistic material accepted by the trial judge as well as a series
of past court cases, the Court concluded that Métis and
non-status Indians are in fact within the jurisdiction of the
federal government. The ambiguity surrounding how
"Métis" and "non-status Indian" are
defined does not preclude these groups from inclusion within the
scope of s. 91(24). However, whether particular individuals
or communities are non-status Indians or Métis and therefore
"Indians" under s. 91(24) is a "fact-driven question
to be decided on a case-by-case basis" (para. 47).
Implications of the SCC's decision
The SCC's decision is a significant victory for Métis
and non-status Indians in Canada. While Daniels does not
grant Métis and non-status Indians Indian Act
status, or require the federal government to provide
programs and services to these groups, the government cannot now
refuse to provide benefits to Métis and non-status Indians
on the basis it has "no jurisdiction" or engage in what
the Federal Court of Appeal referred to as "political football
-- buck passing practices".
The Daniels decision is unlikely to have any direct
consequences on the Crown's consultation obligations with
Métis and non-status Indians in the context of development
projects, where the scope and content of the duty to consult are
matters of well settled law.
Nevertheless, the Daniels decision sets the stage for
future discussions and negotiations between Canada, Métis
and non-status Indians, on claims over Aboriginal rights, and
access to programs and services, and marks another step in
Canada's path towards reconciliation.
 2016 SCC 12
  2 SCR 207
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