Daniels v. Canada: All Aboriginal Peoples, including Métis and non-status Indians, are “Indians” under the Constitution Act, 1867

It was a long time coming, but last Thursday the Supreme Court of Canada unanimously recognized Métis and non-status Aboriginal peoples as “Indians” under s. 91(24) of the Constitution Act, 1867.

By recognizing that Métis and non-status Indians are Aboriginal peoples under Canada’s Constitution (both s. 91(24) and s. 35), the Court acknowledges that this is “another chapter in the pursuit of reconciliation and redress” between our country’s Indigenous peoples and our federal government.

There are approximately 700,000 Métis and non-status Aboriginal persons in Canada, yet neither the provinces nor the federal government accepted legislative authority over these Indigenous communities. The Court decried the jurisdictional “wasteland” this created, to the detriment of the programs and services provided, as well as the relationship between these Nations and the provincial and federal governments.

This decision creates much needed clarity and accountability, and may set the stage for numerous negotiations around land claims and enhanced social benefits for these Nations. Still, the Court noted that their declaration does not create a positive duty to legislative over Métis and non-status Indians, and that courts should favour the upholding of provincial laws, where possible. Nonetheless, given that previous Supreme Court cases already stated that provincial laws cannot impact the core of the federal power over Aboriginals or impact on a Nation’s “Indianness”, it does create uncertainty over certain provincial legislation, such as provincial Métis settlement legislation.

The Court also clarified that there is no need to delineate which mixed‑ancestry communities are Métis and which are non‑status Indians. They are all “Indians” under s. 91(24) by virtue of the fact that they are all Aboriginal peoples. The “Powley test” for determining the existence of Métis was also found to be useful only for the purposes of s. 35 Aboriginal right claims, and is not appropriate for determining who is Métis within the meaning of s. 91(24), whose broader purpose within the Constitution is very different.

Finally, the Court refused to declare that Canada owes a fiduciary duty to Métis and non‑status Indians, or that Canada has a duty to consult and negotiate with Métis and non‑status Indian peoples. However, this stems from the fact that previous Supreme Court decisions already recognized these two principles (such as in Haida and Manitoba Métis Federation). So, although this decision does not likely affect consultation requirements, the important victory may nonetheless encourage an increased number of claims before the courts by Métis and non-status Aboriginal for their Aboriginal and consultation rights to be upheld.

Arbutus Law Group LLP welcomes this decision and hopes it will lead to more equitable and fair negotiations between Métis and non-status Aboriginal communities and the Crown. We hope it will lead to better services, and recognition by the federal and provincial governments that these communities deserve to be treated on equal footing with all of Canada’s Indigenous Nations. However, although this decision was necessary and is positive, we hope that it won’t take away from the wider goal of all Indigenous peoples in Canada to continue to push for greater recognition of their own jurisdiction over their self-governance as the First Peoples of Canada.

The full text of Daniels v. Canada, 2016 SCC 12 can be found here: http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/15858/index.do