On Tuesday January 8, 2013, the Federal Court released an interesting new Aboriginal law decision called Daniels v Canada, 2013 FC 6 [“Daniels”]. This case is about federal powers (also known as “jurisdiction”) in relation to Métis and non-status Indian people. The main plaintiff and organization behind the case is the Congress of Aboriginal Peoples.
What is Section 91(24)?
The law that made Canada its own country in 1867 sets out different powers to the federal government and provincial governments. This law was originally called the British North America Act, and is now called the Constitution Act, 1867. Section 91(24) of this document says that the federal government has power over the subject matter of “Indians, and Lands reserved for the Indians.” The Daniels case was about who is included within the meaning of “Indians” under this section.
Canada is known to have three major groups of Aboriginal peoples: First Nations, Inuit, and Métis. There are a number of different constitutional laws (s. 91(24); s. 35 of the Constitution Act, 1982; treaties) and other laws (including the Indian Act) about Aboriginal peoples, each with different purposes. Each also has its own scope, defining the range of people it applies to. The Daniels case deals only with one law, s. 91(24) of the constitution.
It is only about s. 91(24), not about rights or status
It is important to keep in mind that the Daniels decision is only about s. 91(24), i.e. it is about the scope of federal powers. It is not about other laws. So, it does not say anything about things like who has status under the Indian Act, or who has aboriginal or treaty rights under s. 35.
Who falls under Section 91(24) according to Daniels?
Daniels found that the scope of the federal power over “Indians and Lands reserved for the Indians” is very broad, and applies to a wide range of people who identify as Aboriginal in one way or another.
- It was already clear that s. 91(24) applies to First Nations people who have status under the Indian Act (“status Indians”).
- In 1939, the Supreme Court held that s. 91(24) also applies to Inuit people.
- In this latest case, Daniels, the Federal Court held that it also applies to Métis people and to First Nations people who do not have Indian Act status (“non-status Indians”).
The next question is, who are Métis and non-status Indians? For the purpose of s. 91(24), Justice Phelan of the Federal Court took a very broad approach (see paras. 111-130, especially 122 and 127). Essentially, it includes anyone who has an ancestral connection to that group, self-identifies, and is accepted by a Métis or First Nation council, community, association or organization.
What does this mean?
There are still lots of questions to consider about this case. Some of the questions include:
- Will Daniels allow Métis and non-status Indians to obtain greater access to federal programs & services?
Not directly. Generally-speaking, and as a matter of practice, most programs and services for First Nation “status Indian” people living on a reserve are funded by the federal government. Most programs and services for people living off a reserve – whether or not they have Indian status – are normally funded by provincial governments. (Some people assume that federal programs and services provide more to First Nations than other people receive. In fact, the opposite is often true.)
A small number of federal programs and services apply to people with status who live off reserve. People in the territories also have unique arrangements. Daniels at least provides an argument that Métis and non-status Indians should receive some special federal supports too, and this seems to have been a reason why the plaintiffs brought the case. However, the case does not decide this directly. There will also be obstacles. It is probably not possible to force Canada to exercise the powers that s. 91(24) gives it. Claims of discrimination would also face many hurdles, since unique programs to benefit specific disadvantaged groups can be constitutionally justified (see Lovelace).
- Will Daniels affect the ability of Métis and non-status Indians to hunt and fish, or exercise other rights?
Not directly. Some Métis communities already have established such rights. Many First Nations have such rights recognized, and their members may live on or off reserve (and in some cases may be non-status). For Métis and non-status Indians who are not part of those communities, this decision does not say anything directly about their harvesting rights, or any other aboriginal or treaty rights.
However, there are many open questions about how provincial laws – such as game laws and others – will apply to Métis and non-status Indians if Daniels is upheld. Coming under s. 91(24) does not mean that provincial laws no longer apply; provincial laws of general application will still apply up to a point. That point is where the provincial law impairs the “core” of the federal jurisdiction. In other cases dealing with this section, courts have called this “the core of Indianness” (awkward as that is). There is a lot of uncertainty around what that means.
- Does Daniels give the federal government a fiduciary duty or a duty to consult and accommodate?
Not directly. The plaintiffs asked the court to declare these duties, and it declined. Those issues will have to wait for specific circumstances to arise before they can be determined.
What happens next?
The federal government is likely to appeal this decision to the Federal Court of Appeal. Other parties might also participate as intervenors. We will be paying attention to this case as it continues.
By Judith Rae