May 15, 2017

Case Brief: Daniels v. Canada (Indian Affairs), 2016 SCC 12

Daniels v. Canada (Indian Affairs and Northern Development), 2016 SCC 12 (CanLII)

Facts: Aboriginal appellants/respondents on cross-appeal sought three declarations: (1) that MNSI are “Indians” under s. 91(24) of the CA, 1867, (2) that federal Crown owes them a fiduciary duty, and (3) that they have the right to be consulted and negotiated with. TJ granted 1st declaration, declined the other two. FCA upheld the 1st declaration but narrowed its scope, also declined the other two. Appeal to SCC to restore TJ’s ruling. Crown cross-appeal that no declaration be granted.

Issue: Whether declaration should be issued that MNSI are “Indians” under s. 91(24), CA, 1867.

Holding: Appeal allowed in part. 1st Declaration granted; 2nd and 3rd Declarations not granted. Crown cross-appeal dismissed. FCA narrowing scope of 1st Declaration set aside. Appellants entitled to costs.

Reasoning: Abella J. (for the Court): MNSI are “Indians” b/c they are Aboriginal peoples and b/c they were historically included under exercise of federal authority over “Indians”. In constitutional context, “Indians” has broad meaning that includes MNSI and equates with term “aboriginal peoples of Canada”, and a narrow meaning that distinguishes Indian bands from other Aboriginal peoples. It would be constitutionally anomalous for Mètis to be only Aboriginal people to be excluded from scope of 91(24) b/c this head of power serves a different constitutional purpose than s. 35, CA, 1982 and is associated with Parliament’s goal of reconciliation with all of Canada’s Aboriginal peoples.

Rule:

Declarations: Test for grant restated in Khadr (2010 SCC 3): (1) establish court has jurisdiction to hear the issue, (2) question to be decided is real (not theoretical), (3) party raising issue has genuine interest in its resolution. Declaration only granted if it will have practical utility and will settle a “live controversy” b/w parties.
Who are the Metis and non-status Indians?: No consensus who is considered MNSI, nor need there be, also no jurisprudence directly on point.
Reconciliation: Concerns rebuilding Canada’s relationship with the Aboriginal peoples of Canada, including the Metis, and is Parliament’s goal with all of Canada’s Aboriginal peoples.
Fiduciary Duty & Duty to Consult: Crown has special fiduciary relationship with Canada’s Aboriginal peoples and Honour of Crown gives rise to duty to consult when action contemplated that will affect an Aboriginal interest.

Application:
Declarations: 1st Declaration has enormous practical utility for MNSI b/c it would guarantee both certainty and accountability. Finding MNSI to be “Indians” does not create a duty to legislate but has salutary benefit of ending jurisdictional tug-of-war. MNSI can turn to federal government for policy redress.
Who are the Metis and non-status Indians?: Determining who is MNSI and therefore under 91(24) is a fact-driven question decided on case-by-case basis.
Metis: Unique culture and history, and self-identification as a distinct group, are not bars to being included as “Indians” under 91(24), nor is intermarriage or mixed-ancestry. Broad understanding of “Indians” as meaning “Aboriginal peoples” resolves definitional concerns. Historical, philosophical, and linguistic contexts establish “Indians” under 91(24) includes all Aboriginal peoples, including the Metis. Historically, “Metis” often included as being “Indians” and often no distinction b/w mixed-ancestry and “Indians”. Metis included in former Indian Acts, IRS policies, and lived on Indian reserves and participated in Indian treaties, which are matters under the exercise of federal authority over “Indians”. Provincial legislation pertaining to MNSI not ultra vires as a result b/c 91(24) does not bar valid provincial scheme that does not impair the core of the Indian power.
Non-status Indians: Crown conceded that “non-status Indians” fall under s. 91(24).
Reconciliation: This case represents another chapter in the pursuit of reconciliation and redress in Canada’s relationship with its Indigenous peoples.
Fiduciary Duty & Duty to Consult: Granting 2nd and 3rd Declarations of no practical utility b/c already well-established that federal government in fiduciary relationship with Aboriginal peoples (Delgamuukw) and has a duty to consult and negotiate with them when their rights are engaged (MMF), and a grant of these declarations would simply be restating existing and settled law.

Dissenting Opinion(s) Reasoning: None.