The Supreme Court of Canada's unanimous decision in Daniels v. Canada is important in a number of respects. The Supreme Court determined that the federal government has legislative and regulatory responsibility for the Métis and Indigenous people without status under the Indian Act (non-status Indians).1
The Supreme Court also reaffirmed that the federal government continues to owe the Métis and non-status Indians a fiduciary duty, and the duties to consult and negotiate in good faith, on a collective basis through representatives of their choice, respecting all their rights, interests and needs as Aboriginal peoples.2
Sections 91 and 92 of the Constitution Act, 1867 3 set out the responsibilities of the provincial and federal governments. Section 91(24) stipulates that the federal government has exclusive authority over "Indians and Lands reserved for Indians."However, both the provinces and the federal government had previously insisted the other had jurisdiction over Métis and non-status Indians, resulting in these people "having to rely more on noblesse oblige than on what is obliged by the Constitution."4
Harry Daniels, a member of the Métis community and former leader of the Congress of Aboriginal Peoples, Leah Gardner, a non-status Anishnabe woman and Terry Joudrey, a non-status Mi'kmaq man, commenced this action in 1999. The Congress of Aboriginal Peoples and Gabriel Daniels, Harry's son, are the other named appellants in the case. The appellants sought a declaration that the term "Indians" includes the Métis and non-status Indians, thereby clarifying the federal government's jurisdiction in respect of these groups. The appellants also asked for declarations that "the federal Crown owes a fiduciary duty to the Métis and non-status Indians" and "that the Métis and non-status Indians have the right to be consulted and negotiated with, in good faith, by the government on a collective basis through representatives of their choice respecting their rights, interests and needs as Aboriginal peoples."
What You Need To Know
- The federal government has jurisdiction in respect of the Métis and non-status Indians. The Supreme Court concluded that the definition of "Indians" under section 91(24) of the Constitution Act, 1867 includes the Métis and non-status Indians under federal jurisdiction. In arriving at its decision, the Court considered past government action and related legislation. It noted that determining whether particular individuals or communities are Métis and non-status Indians—and therefore, "Indians" under s. 91(24)—is a fact-driven question to be decided on a case-by-case basis in the future. However, this does not preclude the fact that Métis and non-status Indians are covered by section 91(24).
- Many provincial laws of general application will continue to apply to the Métis and non-status Indians. The Supreme Court emphasized that courts should, where possible, favour the ordinary operation of laws enacted by both provincial and federal governments. Provincial laws that do not impair the "core" powers of the federal government over "Indians and Lands reserved for Indians" will continue to apply.5
- The Crown's existing duties to Aboriginal peoples, including the Métis and non-status Indians, continue to apply. While the Court declined to award the other declarations sought by the appellants, it did so on the basis that the law is already clear: the federal government owes the Métis and non-status Indians, as Aboriginal peoples protected by section 35 of the Constitution Act, 1982, a fiduciary duty, and a duty to consult and accommodate in respect of measures that affect their rights or interests.
- Issues involving Aboriginal peoples’ constitutional rights must be addressed through the lens of reconciliation and redress for historical wrongs. The Supreme Court noted "[t]his case represents another chapter in the pursuit of reconciliation and redress."6
1 Daniels v. Canada (Indian Affairs and Northern Development), 2016 SCC 12 at para. 50 [Daniels].
2 Ibid., at paras. 53 and 54.Footnote goes here.
3 Constitution Act, 1867, 30 & 31 Vict, c. 3.Footnote goes here.
4 Daniels at para. 12.
5 Daniels at para. 51.
6 Daniels at paras. 1, 37.
To discuss these issues, please contact the author(s).
This publication is a general discussion of certain legal and related developments and should not be relied upon as legal advice. If you require legal advice, we would be pleased to discuss the issues in this publication with you, in the context of your particular circumstances.
For permission to republish this or any other publication, contact Janelle Weed.
© 2020 by Torys LLP.
All rights reserved.