Supreme Court says federal government has legislative power over the Métis and non-status Indians

Today, the Supreme Court of Canada released its decision in R v. Daniels, a landmark case about the constitutional relationship between the federal and provincial governments and the Métis and non‑status Indians.

Background

When Canada was created in 1867, its Constitution set out which level of government—the federal government or the provinces—would have the authority to pass legislation about which matters.  There are some tricks to how this operates, but in general, the topics over which the federal government has authority are set out in s. 91 and the topics the over which the provinces have authority are set out in s. 92.

Section 91(24) states that the federal government has exclusive authority over “Indians and Lands reserved for Indians”.  This means that the federal government—and not the provinces—has the authority to pass laws that are “in pith and substance” about First Nations people and their lands.  In 1939, the Supreme Court held that s. 91(24) also applies to Inuit people. Daniels asks whether s. 91(24) includes the Métis and other indigenous people without status under the Indian Act (“non-status Indians”).

The plaintiffs also asked the Court to declare that the government owes “a fiduciary duty to the Métis and non-status Indians as Aboriginal peoples” and that that Métis and non-status Indians “have the right to be consulted and negotiated with, in good faith, by the government on a collective basis through representatives of their choice respecting their rights, interests and needs as Aboriginal peoples.”

Who falls under s. 91(24) according to the Supreme Court?

Justice Abella, writing for a unanimous Court,  held that s. 91(24) includes both the Métis and non-status Indians.  This, in the Court’s view, was most consistent with the history and purposes of s. 91(24); the existing jurisprudence; and the rest of the Constitution, including s. 35 of the Constitution Act, 1982.  (Section 35(1) of the Constitution Act, 1982 already lists the Métis as one of the “Aboriginal Peoples of Canada”.) It also reflected the fact that the Federal Government often had recognized Métis as Indians when it suited them to do so, most disastrously by sending them to Indian Residential Schools.   In other words, according to the Court, “the historical, philosophical, and linguistic contexts establish that “Indians” in s. 91(24) includes all Aboriginal peoples, including non-status Indians and Métis.” [para.19]

The Court left the details of how to decide which specific communities and individuals fall within this broad definition for another day, concluding that there was “no need to delineate which mixed-ancestry communities are Métis and which are non-status Indians” for the purposes of s. 91(24) [para 46].

Unlike the Federal Court of Appeal, the Supreme Court did not apply the definition of Métis for the purposes of aboriginal rights under s. 35(1) of the Constitution Act, 1982 to s. 91(24).  In Powley, a 2003 decision of the Supreme Court, the Court had set out three criteria for defining who qualifies as Métis for purposes of s. 35(1): 1) Self-identification as Métis; 2) An ancestral connection to an historic Métis community; and 3) Acceptance by the modern Métis community.  In Daniels, the Court said that “community acceptance” was not an appropriate criterion under s. 91(24).  Section 35(1) is about protecting historic, community held rights; community acceptance therefore makes sense as part of the test.  Section 91(24), on the other hand, is about the federal government’s relationship with Canada’s Aboriginal peoples. According to the Court, it must therefore include people who are no longer accepted by their communities, for instance because they were separated from them as a result of government policies like Indian Residential Schools [paras. 48-49].  The government cannot use the effects of its destructive colonial policies to evade constitutional responsibility.

The Fiduciary Duty and the Duty to Consult and Accommodate   

The Supreme Court declined to grant declarations that the federal Crown owed a duty to consult and a fiduciary duty to Métis and non-status.  A declaration like that, the Court said, would be little more than a restatement of the existing law, which already recognizes a context-specific duty to negotiate when Aboriginal rights are engaged and that Canada’s Aboriginal peoples (including the Métis) have a fiduciary relationship with the Crown [paras. 53-56].

A few thoughts

A moderate step forward on clarifying jurisdiction and improving accountability

As the Court recognized, this decision resolves a “jurisdictional tug of war” that has long left the Métis and non-status Indians out in the cold. For a number of years, both the federal government and the provincial governments have denied that they have legislative authority over the Métis.  This means that no level of government saw itself as empowered to deal with the Métis and their concerns, and that the Métis and non-status Indians have been excluded from a number of federal programs and services available to First Nations people with “Indian” status.  The provinces have done little to fill the gap. Perhaps more importantly, it means that the federal government has not taken steps to negotiate and enter treaties with respect to the Aboriginal rights of the Métis and non-status Indians.

This decision clarifies that the federal government has the power to pass legislation about the Métis and non-status Indians. However, it doesn’t mean that the federal government will provide services to the Métis —and it would be difficult to force them to so.  Daniels simply removes one tactic governments have been using to avoid the responsibility.   In addition, it is worth noting that federal jurisdiction has not always proved to be very helpful to those First Nations who are subject to it.

“Partners in Confederation”

The decision says that “a growing appreciation that Aboriginal and non-Aboriginal people are partners in Confederation” is one reason to include all aboriginal peoples within s. 91(24)[para. 37].  This kind of language suggests that Canada’s nation-to-nation relationship with indigenous peoples finds expression not just in s. 35, but also in the division of powers between section 91 and section 92 of the 1867 Constitution.  Perhaps this is an opening for a deeper articulation of indigenous jurisdiction within Canadian Federalism.

Existing Provincial laws

Finally, the decision gives rise to some questions about existing provincial laws that affect Métis rights.  The Court addresses the issue briefly, saying that “federal jurisdiction over Métis and non-status Indians does not mean that all provincial legislation pertaining to Métis and non-status Indians is inherently ultra vires. This Court has recognized that courts  ‘should favour, where possible, the ordinary operation of statutes enacted by both levels of government’” [para. 51]. The Court also points out that “federal authority under s. 91(24) does not bar valid provincial schemes that do not impair the core of the ‘Indian’ power”[para. 51].

This passage points at two conflicting views of federalism: one which would allow overlapping powers (a kind of cooperative federalism), and one in which federal and provincial jurisdictions are thought to be strictly separated from one another. In the second view, the constitution would “shield” the “core” of the s. 91(24) power from the interference of otherwise valid provincial laws (a “watertight compartments” view, based on a doctrine called “interjurisdictional immunity”).  In Tsilhqot’in,  the Court indicated that the area “shielded” was smaller than many had thought.  In that decision, it clarified that provinces can still pass legislation about matters within its competence (like forestry, for example) that have an incidental effect on  aboriginal rights, and that the limit to both provincial and federal jurisdiction should be found in Aboriginal and treaty rights under s. 35(1).  For those who though that Tsilhqot’in signaled the end of “interjurisdictional immunity” in s. 91(24), however, Daniels suggests otherwise.

The Court also understates the potential impact of the decision on provincial laws.  Some laws will almost certainly be affected—those that are specifically about the Métis or non-status Indians.  No matter how much the Court wishes to encourage “overlapping” legislation, it cannot amend s. 91 and s. 92 of the Constitution Act, 1867, and after Daniels, it is clear that the provinces cannot legislate “in relation to” or “about” matters that fall within s. 91(24).

Especially at risk is legislation that singles out the Métis.  Some provinces, for example, have passed legislation to recognize Métis rights.  In Alberta, the Métis Settlements Act,   was enacted to provide the Métis with a land base in order to preserve and enhance Métis culture, identity and self-government.  After Daniels, it is likely that this legislation is outside the authority of the province, even though it was passed as a result of an accord between the Government of Alberta and the Métis. This will fall to be decided in future cases.

By Krista Nerland