A Thunderbolt Decision On Métis Rights: Daniels v Canada (Indian Affairs And Northern Development)*

The recent Supreme Court of Canada decision in Daniels represents a powerful form of judicial activism. While technically pronouncing only on a single legal issue (whether the federal government can pass laws respecting Métis and non-status Indians), the Court has also firmly thrust itself into a larger political discussion about federal responsibility for such persons, and all the related program and spending questions this entails.

The Court's approach is clear from the opening paragraph:

As the curtain opens wider and wider on the history of Canada's relationship with its Indigenous peoples, inequities are increasingly revealed and remedies urgently sought. Many revelations have resulted in good faith policy and legislative responses, but the list of disadvantages remains robust. This case represents another chapter in the pursuit of reconciliation and redress in that relationship.

The language and statements that follow throughout the decision are equally extraordinary in many respects.

While the Court has a history of going forth in a bold manner in respect of aboriginal rights and title (a role thrust upon it in 1982 when section 35 was included in the Constitution Act, 1982), that has not - until this decision - been the Court's approach to interpreting and commenting on federal jurisdiction in respect of "Indians and lands reserved for the Indians" under the 148 year-old provisions of the Constitution Act, 1867.1

The Decision

In 1999, four individual claimants and the Congress of Aboriginal Peoples, commenced the action against the federal government seeking declarations that: (1) Métis and non-status Indians are "Indians" within the meaning of Section 91(24) of the Constitution Act, 1982; (2) the federal Crown owes a fiduciary duty to Métis and non-status Indians as Aboriginal peoples; and (3) Métis and non-status Indians have a right to be consulted and negotiated with by the federal government.

The trial judge at the Federal Court held that "Indians" under section 91(24) was a broad term referring to all Indigenous peoples in Canada including Métis and non-status Indians; however he declined to grant the second and third declarations on the grounds that they were vague and redundant.2 The Federal Court of Appeal accepted the trial judge's finding that "Indians" in section 91(24) included all Indigenous peoples generally. The Court upheld the first declaration, but narrowed its scope to include only those Métis who satisfied the three criteria from R v Powley.3 The Court also declined to grant the second and third declarations.4

In its decision, the Supreme Court of Canada agreed with the findings of the trial judge and held that all Aboriginal peoples of Canada are "Indians" as that term is used in section 91(24) - including non-status Indians and Métis (even though a narrower definition of Indian is used when referring to the aboriginal rights of Indians, Inuit and Métis protected by section 35). The Court rejected - in the section 91(24) context - the criteria in Powley that had been developed specifically for purposes of applying section 35. More specifically, the Court held that there was no principled reason for excluding any Aboriginal people from the federal government's authority on the basis of a "community acceptance" test as outlined in Powley.

In support of its decision, the Court noted that historical...