A recent Federal Court decision clarifies and extends federal jurisdiction to Métis and non-status Indians. This ruling is significant because there could be broad financial and policy implications for the federal government. However, resource projects are not affected as the case relates to the interpretation of the government’s constitutional jurisdiction over Indians rather than an assessment of Aboriginal rights or consultation. Daniels is not a Section 35 case nor is it about Aboriginal rights under the Constitution Act, 1982.
The Federal Court released its decision in Daniels v Canada (Daniels) on January 8, 2013. The issue in this case was whether Métis and non-status Indians (MNSI) are included in the definition of “Indians” under Section 91(24) of the Constitution Act, 1867 (Constitution). The Constitution sets out the areas of exclusive jurisdiction held by the federal and provincial governments. Section 91(24) of the Constitution assigns responsibility for “Indians, and Lands reserved for the Indians” to the federal government.
MNSI were largely excluded from the definition of “Indian” under the federal Indian Act, programs and policies. As a result, the Plaintiffs alleged that MNSI have access to more limited government services and as a result experienced disadvantages.
The Plaintiffs sought declarations that: (1) MNSI are “Indians” within the meaning of Section 91(24); (2) the federal Crown owes a fiduciary duty to MNSI as Aboriginal people; and (3) that MNSI have a right to be consulted and negotiated with by the federal government. The first declaration was granted and the others were dismissed.
The Court concluded that the term “Indian” under Section 91(24) encompasses MNSI. The second and third requests were dismissed as there were insufficient facts provided regarding specific breaches to support such declarations.
Implications of the Daniels case
The Daniels case likely has significant financial, legislative and political impacts as a result of the Court determining that the federal government has responsibility for MNSI. There are early indications that the federal Government is considering an appeal of this decision.
This case could also have implications for Alberta which has legislation recognizing provincial jurisdiction for Métis. Under the Métis Settlements Act, the Alberta government created a number of settlements for Alberta Métis. It is unclear how the Daniels decision will affect the legal standing of the Métis settlements in Alberta and whether any group will challenge the legislation on the basis that the federal government has exclusive jurisdiction over Indians, including Métis.
The Court in Daniels was careful to distinguish its analysis of Section 91(24) of the Constitution Act, 1867 from the assessment of Aboriginal rights and the duty to consult under Section 35 of the Constitution Act, 1982. The Court refused to grant a declaration that the federal government consult with MNSI since the duty to consult depends on the subject matter, the strength of the claim and other factors not before the Court. Accordingly, resource developers are still advised to consult with potentially affected Aboriginal groups (which may already include certain MNSI groups) if they require government approval for a project. To the extent that the constitutional status of the MNSI was a barrier to any consultations, it is no longer, following Daniels.