Clarifying Jurisdiction Over Metis and Non-Status Indians in Canada: The Federal Court in Daniels v The Queen

The Federal Court released its decision in Daniels v The Queen 2013 FC 6 [Daniels] on January 8, 2013. This decision was the highly anticipated end to 12 years of litigation between the federal government, individual litigants and the Congress of Aboriginal Peoples on the important question of whether Métis peoples and non-status Aboriginal peoples are considered to be “Indians” under s 91(24) of the Constitution Act, 1867.

The Plaintiffs in this case were asking the Court to issue a declaration that Métis and non-status Indians are “Indians” within the meaning of the expression “Indians and lands reserved for Indians” in s 91(24) of the Constitution. Writing for the Court, Phelan J answered this question in the affirmative. However, he declined to issue declarations that the federal government owes a fiduciary duty to Métis and non-status Indians as Aboriginal people or that these groups are owed a duty to consult by the federal government on a collective basis through representatives of their choice.

What is meant by Métis and non-status Indian?

In order to understand the significance of the decision, it is necessary to define what is meant by the terms ‘Métis’ and ‘non-status Indian’. While noting that these terms are difficult to define, Justice Phelan attempts to come to a workable definition of both groups of people. For the purposes of this commentary, I will refer to the groups as they are referred to in the decision, while recognizing that the terminology may be considered vague and dated.

For non-status Indians, Phelan J notes that a 1980 government document defines the group as “native people who maintained a strong affinity for their Indian heritage without possessing Indian status. Their “Indianness” was based on self-identification and group recognition,” Importantly, Phelan J points out that non-status Indians were effectively created by the federal government in the first place, as a result of years of legislation that sought to define who was considered an “Indian.” This was done through provisions that stripped Aboriginal women of their status if they married a non-Aboriginal man (while not extending this same caveat to Aboriginal men who married non-Aboriginal women) and legislation that, ironically, removed status for “Members of the…Tribes as shall be found…to have deserved it.”

Eventually, Phelan J, at paragraph 122, settles on a definition of non-status Indian people as “people who had ancestral connection not necessarily genetic to those considered as “Indians” either in law or fact or any person who self-identifies as an Indian and is accepted as such by the Indian community, or a locally organized community, branch or council of an Indian association or organization which that person wishes to be associated.” This definition is similar to the definition of Métis set out by the Supreme Court of Canada in R v Powley, 2003 SCC 43, which defines a Métis person as a person who has some ancestral family connection (not necessarily genetic); he/she identifies himself/herself as Métis, and is accepted by the Métis community.

What did the Historical Evidence Say?

Phelan J comes to his ultimate conclusion by examining extensive evidence brought forth by expert witnesses, who testified on questions regarding what would have been meant by “Indians” at the time of Confederation and what type of responsibility the federal government has taken for Métis and non-status Indians in a modern context. The majority of the sprawling 175-page decision is the explanation of all of this evidence. Ultimately, Phelan J comes to the conclusion that, while there was very little discussion of what the s 91(24) power entailed at the time of drafting the Constitution, it must have been known that the power

“had to be sufficiently broad that the federal government could address a wide range of situations, in a wide range of ways covering a diverse composition of native people” (para 318).

In a modern context, the evidence showed that the federal government had often taken jurisdiction over Métis and non-status Indian people – at least until government policy changed with the election of a Conservative government in 1984. Phelan J examines  government documents which stated that, although Métis people were excluded from the Indian Act, they were still considered “Indians” under s 91(24). He carefully notes that,

“[w]hile the federal position cannot be taken as an “admission” in the usual evidentiary sense, nor can it give jurisdiction where no such jurisdiction existed, it gives great credence to the Plaintiff’s position, buttresses the expert evidence and makes the Defendant’s attack and attempts to frustrate this litigation disingenuous” (para 500).

What are the Implications of Daniels?

As Daniels merely represents a declaration by the Court that Métis and non-status Indians are “Indians” under s 91(24) of the Constitution, it cannot be immediately known what the implications of the decision will be. And, of course, it is likely that the government will appeal to the Federal Court of Appeal.

It is important to point out that the definition of “Indian” in s 91(24) has no bearing on the Indian Act, RSC 1985, c I-5, which is the legislation that confers specific rights to Aboriginal peoples in Canada. Therefore, Métis and non-status Indians will not gain immediate access to the government programming and services designed for Aboriginal people living on-reserve, which are governed by the Indian Act.

This is not to say that the decision does not have significance for Métis and non-status Indians in Canada. As Phelan J points out in response to the government’s submission that the Federal Court should decline to make a declaration as it would have no practical effect, it is in the public’s best interest to come to a definitive conclusion on an action that has taken 12 years and between five to six million dollars of public funds to complete. Both levels of government have denied jurisdiction over Métis and non-status people in Canada in the past. Therefore, it is significant that this declaration represents a clear answer as to where funding for these groups should come from. In a quotation from a government document at paragraph 26, Métis and non-status Indian people were referred to as “the most disadvantaged of all Canadian citizens,” as they lacked even the “protection” of the Department of Indian Affairs and Northern Development. This decision puts Métis and non-status Indians within the purview of the federal government, where legislation meant to benefit the two groups could be passed.

While the decision clarifies that it is the federal government’s responsibility to legislate with regard to Métis and non-status Indians, it does not impose a duty on the federal government to enact any legislation or confer any rights or benefits. It is conceivable that not much will change for Métis and non-status Indian people in Canada. However, the decision also suggests that the government may owe a fiduciary duty and a duty to consult to these groups in the future. And, in the era of Idle No More, it is clear that the relationship between Canada’s Aboriginal people and the federal government should not and cannot remain at the status quo.