The Supreme Court of Canada has released its decision in Daniels v. Canada. For a primer on what is at issue in this decision, read Robert Janes QC’s commentary here.
What did the Court decide?
In the decision the Court holds that both Métis and non-status Indians are within the scope of federal jurisdiction over “Indians” under s. 91(24) of the Constitution.
The Court was also asked to decide, if Métis and non-status Indian people do fall under s. 91(24), whether Canada has a fiduciary duty towards those people and whether it has a duty to negotiate with them. The Court declined to make those orders saying they would be merely re-stating law that is already settled: existing case law from the Court establishes that Aboriginal peoples have a fiduciary relationship with the Crown and that the Crown has a duty to negotiate with Aboriginal people when their rights are affected by a Crown decision.
In finding that Métis and non-status Indian people are “Indians” under s. 91(24), the Court disagreed with Canada’s position that a court declaration would have no “practical utility”. The Court noted that clarity on who has legislative authority over Métis and non-status Indians would have an enormous effect for those groups who have been living in what Justice Abella described as a “jurisdictional wasteland” where both the federal and provincial governments deny any responsibility for them, leaving no one accountable. A declaration resolving the issue of jurisdiction would increase both certainty and accountability.
With respect to non-status Indians specifically, Canada argued that the declaration was unnecessary because Canada had conceded, on appeal, that they fell under s. 91(24). The Court disagreed holding that to deny the declaration would send non-status Indians “back to the drawing board” and only continue the uncertainty.
With respect to Métis, the Court highlighted many instances where the federal government assumed jurisdiction over Métis when they found it convenient to do so including: in banning the sale of liquor to them, enrolling them in residential schools and permitting them to live on reserve. It also found that the existing case law of Re Eskimo and Canard demonstrate that neither mixed-ancestry nor a unique culture and history as a distinct group are bars to being considered “Indian” under s. 91(24).
What does the Court say about who the Métis and non-status Indians are?
The Court avoided the issue of defining who fits within the categories of “Métis” and “non-status Indian” finding that there need be no consensus on these definitions in order to make a declaration with respect to the scope of s. 91(24). The Court recognized that the term “Indians” has long been used to refer to all Indigenous peoples, without making any distinction between them. Federal jurisdiction therefore includes all of these peoples, including Métis and non-status Indians, however they are defined. Which specific individuals or communities fit within these groups must be decided on a case-by-case basis in the future on their particular facts.
The Court declined to apply the Powley test to who is Métis under s. 91(24), saying that test was developed for the particular purpose of communally held section 35 rights and its “community acceptance” criteria was inappropriate for the purpose of determining who falls under federal jurisdiction. Particularly when some individuals may have been excluded or distanced from their communities by colonial policies such as residential schools.
How does this case affect provincial laws?
The Court was clear that its ruling does not make all provincial legislation relating to Métis and non-status Indians invalid provided it does not touch the core of the federal power over Indians. Wherever possible, courts are to allow the operation of laws enacted by both levels of government.
How will this case affect programs and services for Métis and non-status Indians?
The decision does not require the federal government to provide programs and services to Métis and non-status Indians, but it can no longer deny these services on the basis it has no jurisdiction. Métis and non-status Indians now know which level of government to lobby for change and the federal government will have to justify any distinction in the type and level of services it provides to status Indians, non-status Indians and Métis.
Does this case change who has status under the Indian Act?
This case does not affect who has “status” as a registered Indian under s. 6 of the Indian Act. However, this case may prove useful in future court cases as Canada can no longer deny that it also has responsibility for Métis and non-status Indians and may be asked to justify why those groups are excluded from the benefits of status.
Check back here later for further discussion and analysis of the decision and how it will affect different communities and individuals.