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Federal Court Declares that Métis and Non-Status Indians are Federal Responsibility

On January 8, 2013, the  Federal Court released its decision in Daniels v Canada, 2013 FC 6, a case involving the scope of the word “Indian” under section 91(24) of the Constitution Act, 1867.  The plaintiffs sought a declaration that Métis and non-status Indians (“MNSI”) are “Indians” for the purposes of section 91(24) of the Constitution Act, 1867.

The Court reviewed the evidence provided on the historical treatment and use of the term “Indian” dating from the time of Champlain in Passamaquoddy Bay in 1603 to the present day.  In so doing, the Court focused on the historical circumstances surrounding the drafting of section 91(24) and the related government conduct that followed the drafting of the Constitution Act, 1867.  The Court concluded that the balance of the evidence supported that MNSI comprised part of the class of aboriginal peoples that the federal government was assuming responsibility for and governed under the constitutional division of powers. As a result, the Court declared that MNSI are “Indians” for the purposes of section 91(24) of the Constitution Act, 1867.

The decision is significant because to date neither the federal nor provincial governments has accepted responsibility for these groups.  The decision holds that MNSI fall within the same scope of federal responsibility under the Constitution Act, 1867, as do Indians and Inuit.  The decision is likely to have significant implications for the federal government as it will now face MNSI expectations for programs and services (education, health care, etc.) comparable to those currently provided to status Indians and Inuit.

The decision will not have any immediate implications for private third parties like project proponents.  The decision was focused on constitutional jurisdiction over MNSI, and not on Aboriginal rights or consultation requirements for MNSI.  There may be indirect impacts in provinces that have enacted legislation in relation to MNSI.  For example, Alberta has passed legislation establishing a land base for Métis settlements and providing for governance of those settlements.  If, as the decision suggests, MNSI fall within exclusive federal legislative jurisdiction, legislation like the Alberta Métis Settlements Act, and rights granted to third parties under that legislation, may be put into question.  However, this issue was not addressed in the decision.

It is widely expected that Canada will appeal the decision to the Federal Court of Appeal and, if necessary, the Supreme Court of Canada.  While the Daniels decision therefore clarifies constitutional responsibility for MNSI, it is not likely to be the final word on the matter.

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Lawson Lundell's Project Law Blog focuses on updating proponents on issues emerging in the law and policy that applies to the development of major projects in Canada. The focus of the blog is on matters relating to environmental assessment and compliance, regulatory matters and Indigenous consultation.

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