April 15, 2016 The Daniels Decision: All Aboriginal Peoples, including Métis and non-status Indians, are “Indians” under section 91(24) of the Constitution Act, 1867 John Olynyk, Keith Bergner and Shailaz Dhalla The Supreme Court of Canada has handed down its decision in the Daniels case. The Supreme Court’s decision resolves a question of constitutional responsibility for Aboriginal peoples other than First Nations and Inuit — Canada’s Métis and non-status Indians. Under section 91(24) of the Constitution Act, 1867, the federal Parliament has exclusive legislative authority for “Indians, and Lands reserved for the Indians.” In 1939, a decision of the Supreme Court confirmed that Inuit are also “Indians” within the meaning of section 91(24). However, there has been uncertainty about which level of government — federal or provincial — has constitutional authority in relation to Métis and non-status Indians. Neither level of government has been keen to assert constitutional jurisdiction — in part due to the obligations to provide programs and services that may flow from that constitutional jurisdiction. As a result, in 1999 four individual claimants, along with the Congress of Aboriginal Peoples, commenced this action against the Government of Canada in the Federal Court seeking a declaration that Métis and non-status Indians fall within federal jurisdiction. They also sought declarations that the Crown owes a fiduciary duty to Métis and non-status Indians, and that the Métis and non-status Indians have a right to be consulted and negotiated with by the federal government respecting their rights, interests and needs as Aboriginal peoples. Federal Court Decision At trial, the claimants succeeded in obtaining the first declaration. The Federal Court held that Métis and non-status Indians, as defined in the decision, were Indians, within the meaning of the expression “Indians, and Lands reserved for the Indians” in section 91(24) (Reference Re Eskimos, [1939] S.C.R. 104). However, the Federal Court refused to grant the other two declarations sought, regarding the Crown’s fiduciary duty and the right to be consulted by and negotiate with the federal government, on the grounds that the declarations sought were vague and redundant. Federal Court of Appeal Decision Canada appealed the part of the Federal Court decision declaring Métis and non-status Indians to be Indians within the meaning of section 91(24). The claimants appealed the part of the Federal Court decision refusing to grant the other two declarations sought. In April 2014, the Federal Court of Appeal released its decision. 2 The Federal Court of Appeal upheld the trial court’s finding that Métis are to be considered Indians as that term is used in section 91(24). However, the Federal Court of Appeal held that non-status Indians were clearly “Indians,” and therefore there was no practical utility in declaring that non-status Indians are also Indians within the meaning of section 91(24). The Federal Court of Appeal therefore excluded non-status Indians from its declaration and upheld the trial court’s decision not to grant the other two declarations. Supreme Court of Canada Decision With its decision, the Supreme Court has resolved this long-standing area of constitutional uncertainty. The Supreme Court held that all Aboriginal peoples of Canada are “Indians” as that term is used in section 91(24). The Court noted that, historically, the federal government wanted authority over all Aboriginal peoples, including Métis, to ensure that it had the jurisdiction needed to complete nation- building initiatives such as construction of a national railway. In addition, Canada had at times legislated in respect of Métis, and often assumed for policy purposes that its jurisdiction under section 91(24) extended to Métis people. The Court also noted that reading section 91(24) of the Constitution Act, 1867, as applicable to all Aboriginal peoples made sense in light of section 35 of the Constitution Act, 1982, which defines Canada’s Aboriginal peoples to include Indians, Inuit and Métis: the Court held that it would be constitutionally anomalous for Métis to be the only Aboriginal people to be expressly recognized and included in section 35, but excluded from the constitutional scope of section 91(24). As a result, the Supreme Court upheld the trial court’s decision to declare that both Métis and non-status Indians are “Indians” for the purposes of section 91(24) of the Constitution Act, 1867. The Supreme Court noted that exclusive federal jurisdiction over Métis and non-status Indians did not necessarily render invalid provincial legislation pertaining to Métis or non-status Indians. The Court emphasized that courts should favour the ordinary operation of statutes at both levels of government, and that federal authority is not a bar to provincial schemes that do not impair the core of the federal power over “Indians” under section 91(24). The Supreme Court also upheld the trial court’s decision not to grant the second and third declarations sought, on the grounds that they lacked practical utility. The Court noted that it is already settled law that the Crown is in a fiduciary relationship with Aboriginal peoples, and that the Court has already recognized a context-specific duty on the Crown to negotiate when Aboriginal rights are engaged. Implications of the Decision Daniels’ clarification of constitutional authority to make laws about Métis and non-status Indians removes a significant area of jurisdictional uncertainty. What will flow from that clarification is less clear. The federal government argued before the Supreme Court that, even if it were found to have legislative authority over Métis and non-status Indians, that would not mean that Parliament would be obligated to exercise that authority. On one level, this is correct — while Inuit are within federal legislative competence under section 91(24), Parliament has not enacted a legislative regime for Inuit peoples comparable to the Indian Act regime applicable to most First Nations. However, on another level, questions may arise as to the extent to which the federal government can lawfully, or legitimately, discriminate between programs and services provided to the different Aboriginal peoples that are now recognized as being within federal jurisdiction. The recent decision of the Canadian Human Rights Tribunal in relation to Canada’s obligation to provide child welfare services to children on 3 reserves at levels comparable to services provided to children off reserve is an example of the type of discrimination-based claims that the Daniels decision may facilitate for Métis and non-status Indians. The decision may also provide policy-based justification for making federal programs and services more available to Métis and non-status Indians. In this sense, the Daniels decision could have significant implications for the federal government. The decision is unlikely to have any direct consequences for consultation obligations with Métis and non- status Indians in the context of resource development projects. The Supreme Court refused to grant the declarations sought by the claimants in relation to the Crown’s fiduciary relationship with Métis and non- status Indians, and in relation to the Crown’s obligation to consult and negotiate with Métis and non-status Indians, on the grounds that those were matters of settled law. The Crown’s fiduciary relationship with Métis peoples was confirmed in the Manitoba Métis Federation decision. The Crown’s consultation and negotiation obligations in relation to Aboriginal rights have been addressed in decisions like Haida Nation and Tsilhqot’in Nation. While the Daniels decision may not change the law in these areas, it will be seen as a victory for Métis and non-status Indians and may, in turn, encourage use of regulatory and other legal proceedings to assert Aboriginal rights and a right to be consulted about government decisions affecting those rights. It is also unclear where the Daniels decision leaves provincial legislation like the Alberta Metis Settlements Act. This provincial law establishes eight Métis settlements, sets out eligibility for membership in the settlements, establishes their governance structures, and provides a land base for those settlements. There is a long line of cases that holds that a provincial law which goes to the core of federal jurisdiction under section 91(24) is either beyond the powers of the provincial legislature to enact, or constitutionally inapplicable to First Nations, their lands and their members. However, the Supreme Court stated in Daniels that federal jurisdiction over Métis and non-status Indians does not necessarily mean that provincial legislation pertaining to Métis and non-status Indians is inherently beyond the power of provincial legislatures, and emphasized that courts should try to find ways to uphold the validity of laws of both levels of government. In addition, a recent decision of the Supreme Court considered a dispute arising under the Metis Settlements Act (RSA 2000, c M-14) without questioning the constitutional validity of the Act — although its validity was not before the Court in that case. Nevertheless, the Daniels decision creates uncertainty about the validity the Metis Settlements Act. This will be a continuing concern not only for the Métis settlements and their members, but also for third parties who have been granted rights and tenures pursuant to the Act. For more information, please contact John Olynyk, Keith Bergner or Shailaz Dhalla. If you are interested in receiving more articles like this, please subscribe to our Project Law Blog by visiting http://www.projectlawblog.com. 4 Regional Law Firm of the Year Chambers Canada Awards 2015 #1 Regional Firm in British Columbia, Alberta and the territories, Canadian Lawyer magazine (2010, 2012, 2014) Lawson Lundell LLP is a British Columbia Limited Liability Partnership. The information contained in this update is for general information purposes only.