Federal Court Declares Métis And Non-Status Indians Part Of Federal Jurisdiction Over 'Indians And Lands Reserved For Indians'

Daniels v. Canada, 2013 FC 6

Link: http://www.canlii.org/en/ca/fct/doc/2013/2013fc6/2013fc6.html

Background and Procedural History

Section 91(24) of the Constitution Act, 1867 provides for federal jurisdiction over "Indians and lands reserved for Indians." Although the Canadian federal government has consistently acknowledged that the s. 91(24) "head of power" includes legislative and policy matters connected to "status" Indian and Inuit peoples in modern times, it has denied that s. 91(24) provides it with the same power and responsibility with respect to matters connected to Métis and "non-status" Indian peoples ("MNSI"). The essence of the federal government's position has been that because MNSI are not "Indians" within the intent or meaning of s. 91(24), matters connected to MNSI consequently fall to provincial jurisdiction. With some notable exceptions, the provinces have likewise denied that they possess any such authority.

In response to this uncertainty, the late Métis leader Harry Daniels, together with the Congress of Aboriginal Peoples (CAP) as plaintiffs, commenced an action in the Federal Court in 1999. The primary relief sought was a judicial declaration that the breadth of s. 91(24) is such that the federal jurisdiction over "Indians" includes MNSI. The plaintiffs also asked the Court to declare that the federal Crown owes a fiduciary duty to MNSI and MNSI have the right to be consulted by Canada on a collective basis.

This action was approved for funding under the federal government's Test Case Funding Program (TCFP), a program created to fund important Aboriginal-related test cases with the potential to create judicial precedent. However, its progress through the Court appears to have been significantly delayed by Canada's conduct throughout the litigation. This conduct included Canada bringing multiple unsuccessful motions to strike or dismiss the action, alleging that the plaintiffs did not have the standing or authority to bring the action before the court, a lack of material facts or particulars, and the allegation that the plaintiffs' statement of claim was vexatious, prejudicial and abusive (2002 FCT 295 and 2008 FC 823). After Mr. Daniels passed away in 2004, the Court authorized the plaintiffs to replace him with two other individuals (2005 FC 699), a decision that was then unsuccessfully appealed by Canada (2005 FC 1109). The TCFP funding also expired during the course of litigation, which triggered a successful contested motion for advance costs by the plaintiffs (2011 FC 230). The merits of this case were finally heard by Justice Phelan in the summer of 2011.

During the course of litigation Canada also refused to admit that certain documents relied upon by the plaintiffs were in fact government documents. This required the plaintiffs to...