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Summary of Supreme Court's Daniels Decision

April 14, 2016

By Bruce McIvor

Here is a quick summary of today's decision plus excerpts.

The Court granted a declaration that Métis and non-status Indians are “Indians” under s. 91(24).

This is the section of the Constitution that assigns the exclusive power to pass laws relating to "Indians, and Lands reserved for the Indians" to the federal government.

The Court declined to grant a declaration that the Crown owes a fiduciary duty to Métis and non-status Indians.

The Court also declined to grant  a declaration Métis and non-status Indians have a right to be consulted with and negotiated with in good faith on a collective basis through representatives of their choice.

The reason the Court declined to grant the second and third declarations was that they lacked practical utility and would simply restate settled law.

Excerpts from Today's Decision

"Delineating and assigning constitutional authority between the federal and provincial governments will have enormous practical utility for these two groups who have, until now, found themselves having to rely more on noblesse oblige than on what is obliged by the Constitution.” (12)

The Court referred the federal government's and provinces' refusal to recognize legislative responsibility for the Métis and non-status Indians as leaving them "in a jurisdictional wasteland with significant and obvious disadvantaging consequences” (14)

The Court described the Métis and non-status Indians as having “no one to hold accountable for an inadequate status quo.” (15)

"It is true that finding Métis and non-status Indians to be “Indians” under s. 91(24) does not create a duty to legislate, but it has the undeniably salutary benefit of ending a jurisdictional tug-of-war in which these groups were left wondering about where to turn for policy redress. The existence of a legislative vacuum is self-evidently a reflection of the fact that neither level of government has acknowledged constitutional responsibility. A declaration would guarantee both certainty and accountability, thereby easily reaching the required jurisprudential threshold of offering the tangible practical utility of the resolution of a longstanding jurisdictional dispute.”(15)

"Métis’ can refer to the historic Métis community in Manitoba’s Red River Settlement or it can be used as a general term for anyone with mixed European and Aboriginal heritage.” (17)

"Non-status Indians, on the other hand, can refer to Indians who no longer have status under the Indian Act, or to members of mixed communities which have never been recognized as Indians by the federal government. Some closely identify with their Indian heritage, while others feel that the term Métis is more reflective of their mixed origins.” (18)

"Since s. 91(24) includes all Aboriginal peoples, including Métis and non-status Indians, there is no need to delineate which mixed-ancestry communities are Métis and which are non-status Indians. They are all “Indians” under s. 91(24) by virtue of the fact that they are all Aboriginal peoples.” (46)

"Determining whether particular individuals or communities are non-status Indians or Métis and therefore “Indians” under s. 91(24), is a fact-driven question to be decided on a case-by-case basis in the future….” (47)
 
"Non- status Indians and Métis are “Indians” under s. 91(24) and it is the federal government to whom they can turn.” (50)
 
 
Bruce McIvor, lawyer and historian, is principal of First Peoples Law Corporation.  Download Bruce's bio.

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