Supreme Court

Aboriginal Peoples


Metis and non-status Indians are “Indians” under s. 91(24) of Constitution Act, 1867

Plaintiffs sought three declarations: that Metis and non-status Indians are “Indians” under s. 91(24) of Constitution Act, 1867 (Can.), that federal Crown owes fiduciary duty to Metis and non-status Indians and that Metis and non-status Indians have right to be consulted and negotiated with respecting their rights, interests and needs as Aboriginal peoples. Trial judge concluded “Indians” was broad term referring to all Indigenous peoples but declined to grant second and third declarations. Federal Court of Appeal accepted that “Indians” included all Indigenous peoples but narrowed scope to exclude non-status Indians and include only Metis who satisfied criteria from R. v. Powley, [2003] 230 D.L.R. (4th) 1, 125 A.C.W.S. (3d) 1 (S.C.C.). Federal Court of Appeal declined to grant second and third declarations. Appellants appealed. Crown cross-appealed but conceded that non-status Indians are “Indians” under s. 91(24). Appeal allowed in part. Declaration can only be granted if it will have practical utility i.e. will settle “live controversy” between parties. There was no doubt first declaration met this test. Neither level of government acknowledged constitutional responsibility over Metis and non-status Indians. Declaration would guarantee certainty and accountability. Metis and non-status Indians are “Indians” under s. 91(24) by virtue of fact they are all Aboriginal peoples. “Indians” historically used as general term referring to all Indigenous peoples, including mixed-ancestry communities like Metis. Federal government has at times assumed it could legislate over Metis as “Indians.” Section 35 of Constitution Act, 1982 (Can.) states that Indian, Inuit and Metis peoples are Aboriginal peoples for purposes of Constitution. Sections 35 and 91(24) should be read together. Jurisprudence demonstrates that intermarriage and mixed-ancestry do not preclude groups from inclusion under s. 91(24). Group of distinct people with unique identity and history whose members self-identify as separate from Indians not barred from inclusion within s. 91(24). Whether particular individuals or communities are non-status Indians or Metis and therefore “Indians” is question of fact to be decided on case-by-case basis. No reason for presumptively and arbitrarily excluding certain Metis from Parliament’s protective authority based on Powley criteria which was developed pursuant to s. 35, which serves very different constitutional purpose from s. 91(24). First declaration granted. Second and third declarations lacked practical utility because they were restatements of settled law.

Daniels v. Canada (Minister of Indian Affairs and Northern Development) (Apr. 14, 2016, S.C.C., McLachlin C.J.C., Abella J., Cromwell J., Moldaver J., Karakatsanis J., Wagner J., Gascon J., Côté J., and Brown J., 35945) Decision at 239 A.C.W.S. (3d) 545 was reversed. 264 A.C.W.S. (3d) 552.

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