Daniels v Canada : Out of the Wasteland, Into the Fray
For centuries, the Métis and non-status Indian populations of Canada have been lost in a “jurisdictional wasteland.” Both the federal and provincial governments swayed between legislating over the two groups at certain times and denying all constitutional responsibility at others. Not only did this seesaw deprive Métis and non-status Indian people of essential programs and services, it also left them with no avenues to seek or actors to hold accountable.
In Daniels v Canada (Indian Affairs and Northern Development), 2016 SCC 12 [Daniels] the Supreme Court of Canada (“the Court”) sought to bring Métis and non-status Indian persons out of the wasteland. In a unanimous judgment delivered by Justice Abella, the Court declared persons classified as Métis and non-status Indians to be “Indians” under the Constitution Act, 1867 thereby assigning constitutional authority over the two groups to the federal government. The Court also declared that the case “represents another chapter in the pursuit of reconciliation and redress in Canada’s relationship with Indigenous peoples” (Daniels, para 1). I hope to show, however, that this judgment didn’t do enough to fill a whole chapter in that honourable pursuit—perhaps a page.
The Appellants sought three declarations in Daniels:
- that Métis and non-status Indians are “Indians” under s. 91(24) of the Constitution Act, 1867;
- that the federal Crown owes a fiduciary duty to Métis and non-status Indians; and
- that Métis and non-status Indians have the right to be consulted and negotiated with in good faith by the federal government.
The Court agreed with the trial judge’s findings that, on the basis of historical, philosophical, and linguistic contexts, the term “Indians” in s. 91(24) includes all Aboriginal peoples, including Métis and non-status Indians. The Court concluded that the term “Indians” in s. 91(24)—the section that grants constitutional authority over a number of sectors and subjects to the federal government—must be read together with s. 35 of the Constitutional Act, 1982—the section that states that Indians, Inuit, and Métis peoples are all Aboriginal for the purposes of the Constitution. Thus, the Court granted the Appellants the first declaration. In assigning jurisdiction over the two groups to the federal government, the Court did make an important clarification: the declaration does not create a duty for the federal government to legislate, nor does it make all provincial legislation relating to Métis and non-status Indian persons void. This will become an important part of further analysis.
In regards to the second and third declarations, there were a few concerns. The Court began with a review of the applicable test for when a declaration should be granted, stating: “A declaration can only be granted if it will have practical utility, that is, if it will settle a ‘live controversy’ between the parties” (Daniels, para 11). The first declaration was found to hold many salutary benefits and enormous practical utility to the Métis and non-status Indians, thereby meeting the threshold articulated in the test. However, due to previous case law having already accepted that Canada’s Aboriginal peoples have a fiduciary relationship with the federal government, the Court refused to grant the second declaration because it was “restating settled law” and therefore lacked the practical utility required by the test (Daniels, para 53). Similarly, jurisprudence has also recognized a context-specific duty for the federal government to negotiate with Aboriginal groups if and when Aboriginal rights are engaged by the federal government’s activities. Therefore, the Court refused to grant the third declaration on the basis that it would be a “restatement of existing law” and, once again, failed to meet the practical utility threshold of the test (Daniels, para 56).
To understand the implications of the Court’s refusal to grant the latter two declarations, it is helpful to review how the Court came to the conclusion that Métis and non-status Indians were included in the scope of s. 91(24). The Court began by analyzing the ambiguous definition of a “non-status Indian.” This term can refer to individuals who have lost status under the Indian Act, or individuals with mixed ethnic backgrounds whose communities have not been recognized as “Indian” by the federal government. During oral arguments, counsel for the federal government conceded that non-status Indians are covered by the scope of s. 91(24) by virtue of the federal government’s having legislated over the group in the past as “Indians.” Counsel then argued that in light of this concession, the same declaration from the Court would be redundant. The Court rejected this argument, stating: “To avoid uncertainty in the future […] there is demonstrable utility in a declaration that confirms [the non-status Indians’] inclusion” (Daniels, para 20).
While the issue with non-status Indians’ inclusion was resolved rather promptly by the Court, the issue of Métis’ inclusion involved a significant review of history, legislation, and jurisprudence. The definition of “Métis” was found to be similarly ambiguous: the term can refer to a member of Manitoba’s historic Red River Settlement, or it can refer to anyone with mixed European and Aboriginal origins. The Court proceeded to survey a laundry list of instances prior to and following the conception of s. 91(24) of the Constitution Act, 1867, where the federal government assumed constitutional authority and exercised that authority by legislating over the Métis. These instances include:
- From 1808 onward, when the government assumed authority over Aboriginal peoples during the westward expansion of the Dominion vis-à-vis the building of the national railway, which significantly included the Métis of Manitoba’s Red River Settlement.
- In 1890 onward, when Métis were sent to Indian Residential Schools as “Indian.”
- In 1894, when the ban on the sale of alcohol to “Indians” under the Indian Act was broadened to include Métis people.
- In 1958, when the Indian Act was amended again to allow Métis to remain registered as “Indian” despite taking scrip (a certificate promising land that was never granted by the federal government).
- In 1980, when the Department of Northern Development issued the Natives and the Constitution document, which clearly expressed that the federal government had constitutional authority to legislate over Métis people (Daniels, para 33).
In light of all these instances, the Court still found it necessary to declare that the federal government held constitutional authority over Métis people.
Why It’s Not Enough
For a bench that articulates a concern about redundancy, the Court nevertheless found it necessary to issue the first declaration for the purposes of clarity and to avoid uncertainty in the future. Despite the numerous undisputed instances of the federal government exercising the constitutional authority it assumed it held over both non-status Indians and Métis (1) this litigation still had to be launched in 1999, (2) it had to be litigated for seventeen years, and (3) the declaration granting what seemed to be the status quo still had to be sought. The issue remains that after centuries, neither level of government has acknowledged constitutional responsibility over the very people they legislated over. It is incredibly optimistic and shortsighted for the Court to refuse the latter two declarations on the basis that a fiduciary obligation and the right to be negotiated and consulted with is already “settled law.” It seems quite clear that the federal government does not follow its own precedents and needs clarifications despite them being “redundant” to some.
Furthermore, recall the Court’s caveat that the declaration does not create a duty for the federal government to legislate, nor does it make all provincial legislation relating to Métis and non-status Indian people void. The reluctance by both the provincial and federal governments to write legislation explicitly pertaining to Métis and non-status Indian people has produced a “legislative vacuum” of sorts. Following Daniels, the two groups will have to be incorporated into existing legislation pertaining to “Indians,” which may affect the two groups in significant ways as latecomers to the scheme. While the first declaration provides the two groups with an avenue for policy redress, the withholding of the third and fourth declarations also means the two groups will have to turn to the Courts whenever problems arise during their integration into the existing legislative framework. Therefore, in hopes of avoiding “redundancy,” the Court is opening the floor to prolonged and expensive legal battles that are inevitable in the wake of Daniels. In their honourable pursuit of reconciliation, it seems the Court has lifted Métis and non-status Indian people out of the jurisdictional wasteland, and propelled them into the fray of government litigation. A compromise that will not fill a (happy) chapter or page in Canada’s book of Indigenous reconciliation.