On April 14, 2016, the Supreme Court of Canada released its
decision in Daniels v Canada (Indian Affairs and Northern
Development)1. In this landmark decision, the SCC
upheld the decision of a trial judge to issue a declaration that
non-status and Métis persons are "Indians" who
constitutionally fall under federal jurisdiction.
The SCC found that Métis and "non-status
Indians" (persons of Indigenous decent who do not qualify for
status under the Indian Act) fall under federal
jurisdiction through section 91(24) of the Constitution Act,
1867. The SCC recognised that Métis and non-status
Indian communities have been in a "jurisdictional
wasteland". This decision provides certainty, and effectively
ends a jurisdictional tug-of-war between the provincial and federal
governments, both of whom at various times have declined
responsibility to provide services to non-status Indians and
The SCC did not make a declaration that the federal Crown owes a
fiduciary duty to Métis and non-status Indians. The SCC
similarly declined to make a declaration that Métis and
non-status peoples have a right to be consulted and accommodated.
The SCC stated that no purpose would be served by making these
declarations because there is no need to restate what is already
Who is a Métis or non-status Indian?
The SCC found that determining whether an individual or
community are non-status Indians or Métis should be a
fact-driven process decided on a case-by-case basis. For the
purposes of establishing whether an individual or community will be
found to be Métis, the SCC considered whether the definition
in R v Powley should apply.
In the Powley decision, the SCC found three criteria to
define who qualifies as Métis for the purpose of protecting
community held Constitutional (section 35) rights.: 1)
self-identification as Métis, 2) an ancestral connection to
a historic Métis community and 3) acceptance by the modern
Métis community. The SCC, in Daniels, rejected the
third criterion in R v Powley, for the purposes of
establishing whether the federal Crown can pass legislation under
the Constitutional power over "Indians".
The SCC found that acceptance by a Métis community to be
problematic factor in the analysis of whether an individual is
under federal jurisdiction. For many reasons, a Métis person
may have been separated from a Métis community.
Impact on Duty to Consult
Not all persons who self-identify as Métis or non-status
Indians will be eligible to assert section 35 rights. The three
Powley factors, including acceptance by a modern
Métis community, are still relevant for assessing the
strength of rights asserted pursuant to section 35, and therefore,
the scope of the duty to consult and accommodate. As with other
Aboriginal groups, the depth of consultation with Métis
communities or non-status Indians will depend on the strength of
claim. Over the coming years, the momentum of Daniels may
result in new claims and settlements with the Crown. Any depth of
consultation analysis will need to consider these developments.
In practice, in Ontario proponents already negotiate with
Métis, either through Métis Nation of Ontario or
directly with Métis communities. The province already
identifies Métis for consultation as an established
Impact on Availability of Services
The SCC decision does not create a duty to legislate. The
decision is simply a declaration that the federal government holds
the authority to legislate, and the corresponding financial
responsibility for services. This does not exclude provincial
legislation applying to the Métis and non-status
Going forward, this decision will have significant implications
for Métis and non-status Indians. Federal programming will
likely be adjusted to accommodate the SCC's decision, although
the federal government has refrained from announcing any changes to
date. In Ontario, where consultation with Métis is already
common practice, there is likely to be little immediate change for
proponents and their projects as a direct result of this decision.
Over the long term, however, with the likely emergence of new
claims for section 35 rights, the duty to consult could be engaged
more often, or more deeply.
1. Daniels v Canada (Indian Affairs and Northern
Development), 2016 SCC 12.
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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