Canada: Métis And Non-Status Indians No Longer In A "Jurisdictional Wasteland", SCC Confirms

On April 14, 2016, the Supreme Court of Canada (SCC) released its decision in Daniels v. Canada (Indian Affairs and Northern Development), 2016 SCC 12 (Daniels), confirming that both Métis and non-status Indians (referred to herein as MNSI) are "Indians" within the meaning of section 91(24) of the Constitution Act, 1867 and therefore under the jurisdiction of the federal government of Canada.

While Daniels brings clarity to a longstanding debate of whether MNSI are within federal or provincial jurisdiction, it does not in and of itself create any immediately identifiable legal obligations on the federal government to legislate in respect of MNSI. However, the practical effect of the decision is to identify who MNSI may now turn to for policy redress, and it may generate expectations for Parliament to legislate in areas from which MNSI have been historically excluded.

Background

The Plaintiffs who commenced the trial action at the Federal Court of Canada (FCC) were three individuals who identified as either Métis or non-status Indians, and the Congress of Aboriginal Peoples, which represents the interests of MNSI in Canada. They sought three declarations:

  1. that MNSI are "Indians within the meaning of sub-section 91(24) of the Constitution Act, 1867 (s. 91(24)), which grants the federal government exclusive authority to legislate in relation to "Indians and Lands Reserved for the Indians";
  2. that the Queen (in right of Canada) owes a fiduciary duty to the MNSI as Aboriginal peoples; and
  3. that the MNSI have a right to be consulted and negotiated with, in good faith, by the federal government on a collective basis through representatives of their choice, representing all of their rights, interests and needs as Aboriginal peoples.

The Plaintiffs sought declaratory relief rather than specific relief on the basis of factual claims. They asserted that due to the federal government's refusal to recognize MNSI as "Indians" under s. 91(24), MNSI had "suffered deprivations and discrimination in the nature of lack of access to health care, education and other benefits available to status Indians; lack of access to material and cultural benefits; being subjected to criminal prosecutions for exercising Aboriginal rights to hunt, trap, fish and gather on public lands; and being deprived of federal government negotiations on matters of Aboriginal rights and agreements."

MNSI in Canada

The Métis peoples of Canada, along with Indians and Inuit, comprise the "Aboriginal peoples of Canada" whose rights are recognized and affirmed under section 35 of the Constitution Act, 1982 (s. 35). With the exception of general guidance from the SCC, there is no definitive legal definition for "Métis," and interpretations vary. In some contexts, the term "Métis" has been used to describe all individuals of mixed Aboriginal and non-Aboriginal ancestry. It has also been used in a more restricted context to describe individuals who trace their ancestry to the historic "Métis Nation" emanating primarily from Manitoba. In another context, the changing definition of "Indian" under the federal Indian Act, R.S.C. 1985, c. I-5 (Indian Act) has meant that in some cases, individuals who once identified as "Indian" lost their registration as "Indian," and have otherwise been considered "Métis."

Non-status Indians generally are viewed as having two distinct qualities: (1) they lack status under the Indian Act; and (2) they have Indian heritage. They have an ancestral connection, not necessarily genetic, to those considered "Indians" either in law or fact, or any person who self-identifies as an Indian and is accepted as such by the Indian community, a locally organized community, branch or council of an Indian association or organization with which that person wishes to be associated.

Daniels through the Courts

Federal Court1

In its decision released in January 2013, the FCC granted the first declaration, finding that MNSI are "Indians" within the meaning of s. 91(24), and under federal jurisdiction. It based this conclusion on historical evidence of the purposes of s. 91(24) to exercise federal control over "native peoples", a broad and purposive interpretation of the word "Indians" in the Constitution, and a finding that the federal government had historically exercised jurisdiction over MNSI and treated them as "Indians", except when it was inconvenient for policy and financial reasons.

The FCC declined to make the second and third declarations. It acknowledged that, as a matter of law, a general fiduciary relationship between the federal government and MNSI exists, but the Plaintiffs did not raise evidence of a specific interest for which a fiduciary duty might be found. Similarly, the case lacked specific facts that would give rise to a requirement for consultation or negotiation. Therefore, the FCC held that the declarations lacked practical utility and it would not be appropriate to grant either declaration.

Federal Court of Appeal2

On appeal, the Federal Court of Appeal (FCA) agreed that Métis are included under s. 91(24), but held that the Métis criteria set out in the SCC's 2003 R. v. Powley3decision should apply for the purposes of determining who is a Métis person within s. 91(24). Powley set out three indicia of Métis identity for the purpose of claiming constitutionally protected Métis rights such as hunting, under s. 35: self-identification, ancestral connection and community acceptance.

The FCA also deleted the reference to non-status Indians in the first declaration. The FCA acknowledged that non-status Indians were, broadly speaking, Indians without status under the Indian Act, but that Parliament has the power under s. 91(24) to grant status to such persons. Therefore, non-status Indians are necessarily "Indians" within the meaning of section 91(24). However, the FCA held that such a declaration was redundant, lacked practical utility, and would not settle any issue between non-status Indians and the federal government.

The FCA agreed with the FCC that the second and third declarations should not be granted.

SCC

The SCC restored the FCC's decision on the first declaration, favouring the broad interpretation given to the term, "Indians" under s. 91(24) and declaring that both Métis and non-status Indians are "Indians" under s. 91(24). The SCC held that there was practical utility in acknowledging both Métis and non-status Indians, because it would settle the "jurisdictional tug-of-war" between the federal and provincial governments over both groups, and the inclusion of non-status Indians in the declaration would avoid future uncertainty.

The SCC made similar findings as the FCC regarding the historical purpose of s. 91(24) and authority exercised by the federal government over Métis, and pointed to jurisprudence that suggested Métis should be included in s. 91(24) despite their cultural distinctiveness. The SCC also noted that it would be constitutionally anomalous if Métis were the only Aboriginal group that was recognized as Aboriginal peoples under s. 35, but not under s. 91(24).

The SCC held that there was no need in this case to define who are Métis or non-status Indians under s. 91(24). Rather, it stated that determining who are "Indians" under s. 91(24) is a fact-driven exercise to be decided on a case-by-case basis in the future. More particularly, the SCC saw no principled reason to exclude certain Métis from federal jurisdiction on basis of the Powley criteria. It noted the distinction that the Powley criteria were specifically intended for determining who is entitled to claim historic, community-held Métis rights under s. 35, whereas s. 91(24) has a different constitutional purpose and is about Canada's relationship with Aboriginal peoples. In particular, it saw no reason to apply a community acceptance test for the purposes of defining who is Métis under s. 91(24).

The SCC held that the lower courts did not err in refusing to make the second and third declarations, pointing to previous jurisprudence that had already established these general duties owed by the Crown to MNSI.

Discussion

Effect of federal jurisdiction over MNSI

Daniels removes past uncertainty regarding whether MNSI are under the jurisdiction of the federal or provincial governments and confirms that Parliament has authority to legislate in respect of MNSI peoples in their capacity as MNSI. Prior to Daniels, both heads of government could maintain that they did not have constitutional responsibility over MNSI, thereby avoiding financial or other obligations. The SCC stated that this situation had left MNSI in a "jurisdictional wasteland" and granting the first declaration would end the "jurisdictional tug-of-war" in which MNSI lacked clarity on where to seek policy redress. 4

Despite this jurisdictional certainty, the SCC expressly stated that the finding that MNSI are "Indians" under s. 91(24) does not create a duty for the federal government to legislate.5 In our view, the recognition of MNSI within s. 91(24) does not in and of itself create any new rights for either group, or any immediate or identifiable legal obligations or responsibilities for Parliament to create laws to provide specific benefits to MNSI peoples. Rather, if any new rights are to be created for MNSI, this will be the result of Parliament's decision to exercise its legislative jurisdiction over MNSI, or if courts find, in future litigation, that the federal government must legislate in areas where MNSI have been unconstitutionally deprived of specific rights owed to them.6

Although the federal government is not, as a result of Daniels, under any specific legal obligations to now legislate in respect of MNSI, and the SCCdoes not provide any guidance regarding how the federal government might choose to exercise its jurisdiction over MNSI, Daniels will undoubtedly create an expectation for the federal government to take action, thus adding to its ambitious agenda to pursue a new relationship and path to reconciliation with Aboriginal peoples in Canada. Daniels could create expectations for the federal government to act in areas such as post-secondary tuition, on-reserve social programs, certain additional health coverage and services, and tax exemptions, particularly given the historical disparity in funding and programs provided to other "Indians" versus MNSI.

S. 35 and the Duty to Consult

In declining to grant the third declaration (that MNSI have a constitutional right to be consulted and negotiated with, in good faith, by the federal government on a collective basis through representatives of their choice, respecting all their rights, interests and needs as Aboriginal peoples), the SCC stated that in past decisions (including Haida, Tsilhqot'in and Powley), it has already recognized "a context-specific duty to negotiate when Aboriginal rights are engaged." Therefore, the SCC stated that as it would be a restatement of existing law, the third declaration would lack practical utility.7

The SCC's use of the term, "negotiate" appears to be used interchangeably with "consult", since none of Haida, Tsilhqot'in, Powley or other SCC decisions impose a distinct "duty to negotiate" in the context of consultation with Aboriginal groups. Since Haida, the SCC has consistently held that the Crown owes a duty to consult, and where appropriate, accommodate Aboriginal peoples when their rights may be affected by a Crown action or decision. Such duties do not impose a requirement on the Crown to reach agreement with Aboriginal groups, nor do they grant a veto to Aboriginal groups. Further, accommodation at law generally involves taking measures to avoid, minimize or mitigation impacts on Aboriginal rights or interests. It does not require the Crown to negotiate any terms upon which its decision or action will proceed.

Courts have separately recognized that the government has a duty to negotiate in good faith in other contexts, such as in the negotiation of a treaty or the resolution of land claims. This is consistent with its obligation to uphold the honour of the Crown. In Tsilhqot'in, for example, the SCC's only comments on the government's duty to negotiate in good faith are in reference to the resolution of land claims. Neither Tsilhqot'in or other case law impose a distinct "duty to negotiate" in the context of consultation and accommodation.8

The SCC in Daniels does not distinguish between the different contexts in which a duty to "consult" or "negotiate" may arise, but it also makes no suggestion that the existing law of consultation has changed. Further, the SCC expressly declined to make the third declaration. In our view, the use of the term "negotiate" is not appropriately applied in the context of consultation, and it could be wrongly interpreted as imposing additional duties or obligations on the Crown than what the law of the duty to consult, and where appropriate, accommodate, presently requires.

Semantics aside, in our view Daniels does not create any new legal rights for MNSI in terms of benefits or their rights in respect of the Crown's duty to consult with MNSI. The Aboriginal rights of Métis peoples of Canada (and in our view, also non-status Indians) are constitutionally protected under s. 35(1), which recognizes and affirms existing Aboriginal and treaty rights, and s. 35(2) expressly defines "Aboriginal Peoples of Canada" under s. 35(1) as including the Indian, Inuit and Métis peoples of Canada. In our view, MNSI are entitled to the rights and protections of s. 35, including being owed a duty to consult whenever their Aboriginal rights or interests may be adversely affected in respect of government action.

However, as noted above, a potential effect of Daniels could be to increase expectations of MNSI peoples to derive benefits or greater accommodation from the Crown or from resource project proponents. While such expectations would not reflect any new legal obligations of government towards MNSI, it could increase practical risks of project implementation in certain circumstances.

Determining who are MNSI under s. 91(24)

Daniels is not a full answer to the issues regarding MNSI in Canada, and particularly in defining and determining who is considered Métis or non-status Indian. As the SCC noted, determining who is legally a Métis and who is non-status Indian for the purposes of s. 91(24) is a fact-driven exercise to be determined on a case-by-case basis in the future.

Similarly, uncertainty regarding the definitions of MNSI will continue to pose practical issues for the federal and provincial Crown and for project proponents in identifying the appropriate Aboriginal groups, and their representative organizations, with whom to consult under s. 35.

Effect of Daniels on provincial legislation

The SCC noted that its confirmation of federal jurisdiction over MNSI does not mean that all provincial legislation regarding MNSI is ultra vires, or invalid. Courts should favour the ordinary operation of statutes enacted by both levels of government. Further, the SCC cited previous decisions confirming that federal authority under s. 91(24) does not bar valid provincial schemes that do not impair the core of the federal "Indian" power.9

Footnotes

1. Daniels v. Canada (Minister of Indian Affairs and Northern Development), 2013 FC 6.

2. Canada (Indian Affairs) v. Daniels, 2014 FCA 101.

3. 2003 SCC 43 ("Powley").

4. Daniels, at para. 15.

5. Ibid.

6. It is worthwhile to note that the meaning of "Indians" under s. 91(24) is broader than the definition of "Indians" in the Indian Act. The class of people who are "Indians" under s. 91(24) includes Indians who are not necessarily "status" Indians under the Indian Act, whereas the Indian Act expressly does not apply to non-status Indians. S. 91(24) gives power to Parliament to legislate over a category of people defined as "Indians," but it is up to Parliament to determine how to exercise that jurisdiction, for example, by enacting legislation (such as the Indian Act) within its constitutional limits. Parliament can set qualifications for admission to "Indian" status under the Indian Act, as well as amend the Indian Act in order to add or reduce the number of persons entitled to "Indian" status, which the government has done from time to time. This distinction in the definitions of "Indian" in S. 91(24) versus in the Indian Act is important because the SCC's finding that MNSI are "Indians" in a constitutional sense does not automatically mean they are also included under the provisions of the Indian Act or entitled to the rights and benefits that are conferred under it. Rather, it will be up to Parliament to decide how to legislate in respect of MNSI, and whether to legislate at all.

7. Daniels, at para. 56.

8. The BC Supreme Court specifically addressed this issue in Sam v. British Columbia, 2014 BCSC 1783, and confirmed that Tsilhqot'in did not change the law in this respect.

9. Daniels, at para. 51.

To view original article, please click here.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
Thompson Dorfman Sweatman LLP
Willms & Shier Environmental Lawyers LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Thompson Dorfman Sweatman LLP
Willms & Shier Environmental Lawyers LLP
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions