Federal Court Declares Métis And Non-Status Indians To Be 'Indians'

On January 8, the Federal Court issued a declaration1 that Métis and non-status Indians in Canada are "Indians" within the meaning of subsection 91(24) of the Constitution Act, 1867.2 Non-status Indians and Métis are Aboriginal groups that do not have any status under the Indian Act3 but that self-identify as Aboriginal and are recognized as such by an Aboriginal community.

The motion was filed in 1999 by Harry Daniels, a well-known defender of Métis rights, Leah Gardner, a non-status Indian, Terry Joudrey, also a non-status Indian, and the Congress of Aboriginal Peoples, which represents Métis and non-status Indians across Canada.

Initially, the plaintiffs asked the Court to issue the following declarations:

that Métis and non-status Indians are "Indians" within the meaning of the expression "Indians and lands reserved for Indians" in s 91(24) of the Constitution Act, 1867; that the Queen (in the right of Canada) owes a fiduciary duty to Métis and non-status Indians as Aboriginal people; that the Métis and non-status Indian peoples of Canada have the 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 their rights, interests and needs as Aboriginal peoples. For the reasons given below, the Court refused to comment on the last two matters.

Indian status of Métis and non-status Indians

Sections 91 and 92 of the Constitution Act, 1867 determine the division of powers between the federal government and the provincial governments. Section 91(24) of that Act confers upon the federal government jurisdiction in relation to Indians and lands reserved for Indians.

The plaintiffs argued that they were suffering from the fact that the provincial governments and the federal government were engaged in jurisdictional avoidance, with each level of government denying responsibility for Métis and non-status Indians. They therefore sought to have the Court rule on their status as Indians under the Constitution Act, 1867.

The Court, after taking a long, hard look at the body of historical evidence submitted by each party, gave the Métis and non-status Indians the constitutional certainty they were seeking with regard to their status as Indians within the meaning of s 91(24) of the Constitution Act, 1867. By recognizing Métis and non-status Indians as "Indians" within the meaning of s 91(24), the Court clarified the federal government's exclusive...