On April 14, the Supreme Court of Canada released its long-awaited judgment in Daniels v. Canada (Indian Affairs and Northern Development). The case was started by now-deceased Métis leader Harry Daniels in 1999. Despite the case’s enormous documentary record and 17-year legal odyssey, the judgment is short and unanimous. It provides simple answers to key questions that have left Métis and non-status Indians in a “jurisdictional wasteland” for generations.
The central question in the case was “who” are included in a provision in our country’s original Constitution. When Canada was created in 1867, various “jurisdictions” or “responsibilities” were divided between the federal and provincial governments. Parliament was assigned responsibility for “Indians” since negotiating and dealing with the lands and rights of indigenous peoples was a necessary to advancing Canada’s desired expansion.
The record before the Supreme Court showed that in 1867 the term “Indians” was used in the same way we use the term “aboriginal” today. It had an all-encompassing meaning that included all of the indigenous peoples within Canada at the time as well as those within territories to be subsequently acquired.
Simply put, First Nation, Inuit, and Métis communities were all included, regardless of whether they would ultimately come to be recognized under the Indian Act or not.
The record also showed that throughout its early development, Canada recognized and acted on its all-encompassing jurisdiction towards indigenous peoples. From legislating restrictions against all indigenous peoples to passing legislation that attempted to “extinguish” Métis land claims to applying its residential schools policies to all, Canada did not distinguish between indigenous groups historically.
In more recent times, however, Canada has conveniently only acknowledged its jurisdiction for First Nations and status “Indians” registered under the Indian Act.
The Supreme Court has now clarified what was apparent to most already. Parliament has legislative authority for all indigenous peoples and it is the federal government to whom Métis and non-status Indians can turn.
In the words of Justice Rosalie Abella, “reconciliation with all of Canada’s Aboriginal peoples is Parliament’s goal.” This simple clarification unblocks the federal government’s self-created obstacle to negotiations with these indigenous groups.
Helpfully, the Supreme Court did not stop there. It went on to reaffirm that the Crown is in a fiduciary relationship with the Métis and all aboriginal peoples. It also confirmed that the federal government has a duty to negotiate where the rights and claims of these groups are credibly asserted or established.
In particular, the court’s confirmation that the federal Crown has a positive obligation to negotiate based on legal principles previously set out in cases like Haida Nation v. British Columbia (Minister of Forests), Tsilhqot’in Nation v. British Columbia and R. v. Powley has the potential to be the real game changer going forward.
For many Métis communities from Ontario westward, their collectively held rights in relation to land have already been recognized by the courts or provincial governments.
Outstanding Métis claims against the federal Crown, similar to the one already recognized by the Supreme Court of Canada in Manitoba Métis Federation v. Canada in 2013, also exist throughout the Métis Nation. Right now, these Métis communities have absolutely no negotiation processes available to them at the federal level. Clearly, this defies the constitutional imperative just reaffirmed by the highest court of the land.
While the Supreme Court’s answers to these questions were relatively short and simple, the consequences of Daniels will be significant. What is very clear is that the process of reconciliation with these often “forgotten” aboriginal peoples must now begin.
Jason Madden is a Métis lawyer with the firm Pape Salter Teillet LLP. He has been involved in much of the litigation developing Métis rights over the last decade, including representing Métis communities in Ontario, Manitoba, and Alberta. He was counsel for the intervener Métis National Council in the Daniels case at the Supreme Court of Canada.