The Daniels decision is likely one of the most misunderstood decisions ever released by the Supreme Court of Canada. After taking a few days to mull it over, here’s my assessment.
What it is about
The Supreme Court was asked to made three declarations:
- that the Métis and non-status Indians are ‘Indians’ under s. 91(24) of the Constitution;
- that the federal government owes a fiduciary duty to the Métis and non-status Indians; and
- that the Métis and non-status Indians have a right to be consulted and negotiated with in good faith by the federal government on a collective basis through representatives of their choice, respecting all rights, interests and needs as Aboriginal peoples.
The first declaration required the Court to interpret s. 91(24) of the Constitution.
A Short Primer on the Division of Powers
Sections 91 and 92 of the Constitution identify subjects which either the federal government or the provincial governments have the exclusive jurisdiction to make laws about.
For example, the federal government has the exclusive jurisdiction to make laws about the postal service. On the provincial side of the ledger, the provinces have exclusive authority to make laws about the management and sale of public lands.
This doesn’t mean that one level of government can’t make laws that affect topics under the jurisdiction of the other level of government. They can and often do.
What it means is that they can’t pass a law that intentionally affects a subject under the exclusive jurisdiction of the other level of government or indirectly affects its ‘core’, whatever that might be.
This is why the provinces can’t pass a law specifically about Indian reserves—Indian reserves are ‘lands reserved for the Indians’ under s. 91(24) and, therefore, only the federal government can pass laws about them.
Importantly, just because a subject matter isn’t listed under either section 91 (federal powers) or section 92 (provincial powers) doesn’t mean neither level of government can pass a law relating to that subject. By default, the federal government has the legislative authority for any subject not mentioned. This is why the federal government’s argument that it couldn’t legislate regarding the Métis was always self-serving and disingenuous.
What the Court said
The Court made the first declaration. Based on the findings of fact of the trial judge, the Court held that when used in s. 91(24) of the Constitution, ‘Indians’ was intended to include the Métis and non-status Indians.
The Court declined to make the second and third declarations. The existence of a fiduciary relationship and the possibility of a duty to consult was already settled law. A declaration of an overarching, non-specific fiduciary duty to the Métis or duty to consult the Métis would have been a significant change in the law.
What the Court did not say
The Court did not order the federal government to do anything.
The decision doesn’t make Métis and non-status Indians ‘Indians’ under the Indian Act.
The Court’s declaration does not affect any specific individuals or groups of Métis or non-status Indians. The specifics of who the declaration might apply to is a matter for a future court decision.
The Court’s decision is not about Métis constitutional rights. These rights are protected under a different section of the Constitution (s. 35). The test for establishing them was set out in the Court’s Powley decision—the test has not changed.
The decision does not mean provincial laws don’t apply to the Métis and non-status Indians. The application of provincial laws is a different question for a different day.
The decision does not obligate the federal government to negotiate treaties with the Métis. This was always and remains a possibility. The argument that the federal government couldn’t because of s. 91(24) was a red herring.
The decision does not mean the Métis have an additional argument for revenue sharing. Section 91(24) is not about rights or interests. It’s about the federal government’s exclusive legislative powers.
Why it matters
Courts aren’t in the business of making declarations. They only do so when they believe a declaration will have the practical effect of settling a ‘live controversy’.
In this case, the Court concluded that granting a declaration assigning constitutional authority to make laws affecting the Métis and non-status Indians to the federal government would have “enormous practical utility” for the two groups who until now had been left to rely on government’s noblesse oblige.
According to the Court, the federal government’s and the provinces’ disagreement over legislative authority over the Métis and non-status Indians had resulted in them being deprived of much needed programs and services.
The Court acknowledged that its declaration would not force the federal government to pass any laws directly affecting the Métis and non-status Indians.
Instead, the Court concluded that granting the declaration would create certainty and accountability as to which level of government the Métis and non-status Indians should turn to for policies to address their historical disadvantages—they should turn to the federal government.
What does the Daniels decision mean? Put simply, the Métis and non-status Indians should look to the federal government in the hopes of negotiating improved programs and services, but there’s no legal obligation on the federal government to do anything specific.
What I think
Hopefully the decision will lead to better programs and services for the Métis and non-status Indians. If so, it will prove to be an important victory.
Personally, the decision leaves me cold.
Historically, s. 91(24) was understood as a shield—it was intended to stop the provinces from passing laws that directly interfere with ‘Indians and lands reserved for the Indians’. The benefit of the Métis and non-status Indians now being granted this ‘protection’ is likely a lot less than it once would have been because in 2014 the Supreme Court in Tsilhqot’in and Grassy Narrows significantly narrowed the scope of the protection.
In Daniels the Court emphasized a different purpose for s. 91(24)—the control of Aboriginal people.
As the Court explained, assigning the Crown’s law-making authority to the federal government facilitated Canada’s westward expansion, including the development of laws and policies intended to stop Aboriginal people, including the Métis, from resisting non-Indigenous settlement of their lands.
Section 91(24) was, and is, an instrument of colonization.
As a Métis person whose ancestors were deprived of their land at Red River I take no satisfaction in the Supreme Court confirming the federal government’s exclusive authority to make laws about me, my children or the Red River Métis.
At a wider level, the decision is out of step with the aspirations of most Indigenous Peoples in Canada and around the world. Rather than seeking confirmation of the Crown’s jurisdiction over them, Indigenous Peoples are striving to achieve recognition of their own jurisdiction.
In the end, I’m left wondering what the Métis who fought and died resisting Canada’s exercise of jurisdiction over them would make of the Daniels decision.
Bruce McIvor, lawyer and historian, is principal of First Peoples Law Corporation. He is also an Adjunct Professor at the University of British Columbia’s Allard School of Law where he teaches the constitutional law of Aboriginal and Treaty rights. Bruce is a proud Métis from the Red River in Manitoba. He holds a Ph.D. in Aboriginal and environmental history and is a Fulbright Scholar. A member of the bar in British Columbia and Ontario, Bruce is recognized nationally and internationally as a leading practitioner of Aboriginal law in Canada.
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