Federal Jurisdiction over Métis and Non-Status Aboriginal People Confirmed

On April 14, 2016, the Supreme Court of Canada declared that the federal government has jurisdiction over Métis and non-status Aboriginal people. The Court’s landmark decision, Daniels v Canada (Indian Affairs and Northern Development), 2016 SCC 12, ends a long-standing “jurisdictional tug-of-war” over which level of government has constitutional authority over these Aboriginal people. Prior to this case, both the federal and provincial governments often refused to deal with these communities and claimed they were the other government’s legislative responsibility, which left Métis and non-status Aboriginal people in a “jurisdictional wasteland with significant and obvious disadvantaging consequences”.

The Supreme Court of Canada declared that all Aboriginal people are ‘Indians’ under section 91(24) of the Constitution Act, 1867, the constitutional document that divides up federal and provincial jurisdiction over various subjects. ‘Indian’ is a legal category the Canadian government created to describe Indigenous people; it has always included Status Indians, and Inuit were recognized as included in 1939. The Supreme Court has now ruled that the definition also extends to Métis and non-Status Aboriginal people. This means the federal government has the constitutional jurisdiction over these groups, and can no longer argue that Métis and non-Status Aboriginal people are within the provinces’ domain. However, the Court’s decision does not completely prevent the provinces from making laws about Métis and non-Status Aboriginal people, so there may be an ongoing role for the provinces as well.

The Métis and non-Status plaintiffs who filed the case also asked the Court for two other declarations: that the federal government owes a fiduciary duty to Métis and non-status Aboriginal people, and that these people have the right to be consulted and negotiated with. The Court did not make these declarations, and instead confirmed that the federal government’s fiduciary duty and duty to consult in some circumstances are already settled law.

The Daniels decision does not mean Métis and non-Status people are now ‘Indians’ under the Indian Act, which uses a different definition of the term ‘Indian’. Nor does the case make the burdens and benefits of the Indian Act apply to Métis and non-Status people, or require the federal government to take any particular actions. It merely confirms that the federal government has jurisdiction to make laws about Métis and non-status Aboriginal people if it wants to. The decision also does not draw a line between Métis and non-status Aboriginal people, or decide “whether particular individuals or communities are non-status Indians or Métis and therefore “Indians” under s. 91(24)”. Instead, the court chose to leave this “fact-driven question to be decided on a case-by-case basis in the future”. As a result, the decision’s long term implications remain quite uncertain.