May 2016 Māori Law Review

Canada – Daniels v Canada – Métis and non-status Indians are Indians under the constitution

Daniels v Canada (Indian Affairs and Northern Development)

Supreme Court of Canada [2016] SCC 12

14 April 2016

The Supreme Court of Canada declared that Métis and non-status Indians are Indians under s. 91(24) of the Constitution Act, 1867. As Indians those people hold the right to be consulted and negotiated with. They also obtain the protection of fiduciary responsibilities owed by the Canadian federal government.

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Overview and result

Daniels v Canada - Métis and non-status Indians are Indians under the Canadian Constitution 
Date14 April 2016
CaseDaniels v Canada (Indian Affairs and Northern Development)
Citation[2016] SCC 12
CourtSupreme Court of Canada
JudgesMcLachlin CJ, Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté, Brown JJ
Earlier/later decisionsDaniels v Canada (Indian Affairs and Northern Development), 2013 FC 6; Daniels v. Canada (Indian Affairs and Northern Development), 2014 FCA 101
Legislation citedAct further to amend The Indian Act, S.C. 1894, c. 32.
Act providing for the organisation of the Department of the Secretary of State of Canada, and for the management of Indian and Ordnance Lands, S.C. 1868, c. 42.
Act to amend the Indian Act, S.C. 1958, c. 19.
Canadian Bill of Rights, S.C. 1960, c. 44.
Canadian Charter of Rights and Freedoms, s. 15.
Constitution Act, 1867, s. 91(24).
Constitution Act, 1982, ss. 35, 37, 37.1.
Game and Fish Act, R.S.O. 1990, c. G.1.
Indian Act, R.S.C. 1970, c. I-6, s. 43.
Indian Act, R.S.C. 1985, c. I-5.
Indian Act, 1876, S.C. 1876, c. 18.
Manitoba Act, 1870, S.C. 1870, c. 3 (reprinted in R.S.C. 1985, App. II, No. 8).
Metis Settlements Act, R.S.A. 2000, c. M-14
Cases citedR. v. Powley, 2003 SCC 43, [2003] 2 S.C.R. 207; R. v. Blais, 2003 SCC 44, [2003] 2 S.C.R. 236; s. 91(24) of the B.N.A. Act, [1939] S.C.R. 104; Attorney General of Canada v. Canard, [1976] 1 S.C.R. 170
Overview and resultThe appellants sought to establish three points: "(1) that Métis and non-status Indians are “Indians” under s. 91(24) of the Constitution Act, 1867; (2) that the federal government owes a fiduciary duty to Métis and non-status Indians; and (3) that Métis and non-status Indians have the right to be consulted and negotiated with."
The first declaration was granted. The second and third were dismissed, as they have been granted to "Indians" through previous cases and legislation, and restating the law would not serve any purpose.
Métis and non-status Indians are now considered to be “Indians,” therefore they are automatically the recipients of fiduciary responsibility from the federal government, and have the right to be consulted and negotiated with.
The Court’s headnote summary identified the impact of this result: "A declaration can only be granted if it will have practical utility, that is, if it will settle “a live controversy” between the parties. The first declaration, whether non‑status Indians and Métis are “Indians” under s. 91(24) , would have enormous practical utility for these two groups who have found themselves having to rely more on noblesse oblige than on what is obliged by the Constitution. A declaration would guarantee both certainty and accountability. Both federal and provincial governments have, alternately, denied having legislative authority over non‑status Indians and Métis. This results in these Indigenous communities being in a jurisdictional wasteland with significant and obvious disadvantaging consequences. While finding Métis and non‑status Indians to be “Indians” under s. 91(24) does not create a duty to legislate, it has the undeniably salutary benefit of ending a jurisdictional tug‑of‑war."

Author: Emerald UnRuh

Emerald UnRuh is the 2016 visiting indigenous scholar at the Māori Law Review. She is an undergraduate student at the University of Ottawa where she is studying International Development and Globalization on the Loran Scholarship. On graduating she plans to study law in her home province of British Columbia. As a proud Métis woman, Emerald is passionate about helping indigenous peoples, domestically and abroad.