On April 14, 2016, the Supreme Court of Canada decided that Métis and “non-status Indians” are “Indians” under section 91(24) of the Constitution Act, 1867  (section 91 allocates legislative authority over certain matters to the federal government) and thus the federal government has legislative jurisdiction in respect of these populations. Here’s what the decision says, what it doesn’t say, and what it means.

Here’s what the Supreme Court of Canada’s decision said:

Federal government has legislative authority. The word “Indians” in section 91(24) of the Constitution Act, 1867 can be equated with the term “aboriginal peoples of Canada”, and includes Métis and non-status Indians – and thus the federal government has legislative authority with respect to these populations (in fact the Crown conceded that non-status Indians are “Indians” under section 91(24), so the only issue the Court had to decide was whether Métis are).

It’s not necessary to further define the words. The Court acknowledged there is no consensus on the meaning of the words “Métis” and “non-status Indian”, but decided there doesn’t need to be one for purposes of determining which level of government has legislative authority. The Canadian Métis Council defines “Métis” as people of mixed European and Aboriginal blood; the Court noted that “Non-status Indians” are generally considered to be Aboriginal people who aren’t registered under the Indian Act or whom the federal government has never recognized as “Indians”. Whether specific people or communities are Métis or non-status Indians, and therefore included in the term “Indians” for the purposes of section 91(24), will be based on the facts and must be decided on a case-by-case basis. However, the Court did note that for the purposes of section 91(24), a person does not need to meet the three criteria for qualifying as a “Métis” person for the purposes of section 35 of the Charter that it developed in a 2003 decision: self-identification, ancestral connection to a historic community and acceptance by a modern community (R. v. Powley).

The Crown’s fiduciary duty to, and duty to consult, Aboriginal peoples – which includes Métis and non-status Indians – already exists. The Aboriginal groups had asked the Court to declare that the Crown owes a fiduciary duty to Métis and non-status Indians, or that they had the obligation to consult with them as Aboriginal peoples. The Court declined on the basis that courts have already recognized the Crown owes these duties, in a context-specific way, to Aboriginal peoples – which includes Métis and non-status Indians – and restating this would be redundant.

Here’s what it did not say:

Did not say word “Indians” always includes Métis and non-status Indians. This decision doesn’t mean the word “Indian” in the context of any agreement, whether private or public, necessarily includes Métis and/or non-status Indians, though it may have some relevance to the interpretation. The Court was clear that it was interpreting and defining the word “Indians” for the purpose of section 91(24) – and only for that purpose.

Did not say only the federal government can enact laws affecting Métis and non-status Indians. The Court was similarly clear that this decision doesn’t mean provincial laws respecting Métis and non-status Indians are automatically inapplicable, or that provinces can’t enact legislation that affects them. The general rules that permit provincial schemes that don’t impair the “core” of the federal “Indian” power still applies. While the Court didn’t, unfortunately, provide further clarification respecting when provincial legislation does impair the “core” of the federal Indian power, at the least, provincial legislation already declared inapplicable to “Indians” will now, by extension, be inapplicable to Métis and non-status Indians.

Did not say there’s any change in the duty to consult. The Crown’s fiduciary duty and the duty to consult flow from the rights of Aboriginal peoples under section 35 of the Charter; this decision deals with different Constitutional legislation. The Court pointed out this distinction and given section 35 expressly includes Métis it won’t likely broaden the scope of Aboriginal peoples to whom the Crown owes these obligations. The Court did, however, for the first time state one purpose of section 91(24) is “reconciliation”; whether this will affect the principles of consultation remains to be seen.

And here’s what it means:

Federal government pays for funding & programming. It’s clear the Court was aiming to eliminate the jurisdictional uncertainty over which level of government has authority over Métis and non-status Indians – historically denied by both federal and provincial governments – and end the resulting “significant and obvious disadvantaging consequences”. The immediate effect of clarifying that jurisdictional authority is less clear.  The Court has certainly opened the door for the Federal government to take action. Undoubtedly Métis and non-status Indians will seek Federal government accountability for the gaps in funding, programming and services resulting from this long-standing uncertainty and negotiations will likely ensue. Self-identified Métis comprised 32.3% of Canada’s Aboriginal population and First Nations people who are not “Registered Indians” represented 25.1% of Canada’s First Nations population, according to a 2011 Stats Can report titled Aboriginal Peoples in Canada: First Nations People, Métis and Inuit.

A sympathetic court. Parties seeking to avoid obligations to Aboriginal peoples or to defend a failure to comply with them should proceed with caution. The Court’s attention to addressing wrongs and shortcomings vis a vis Aboriginal peoples is reaffirmed by its references to “inequities” in the relationship between Canada and its Indigenous peoples, the “remedies urgently sought” and the opportunities this case represents for the “pursuit of reconciliation and redress in that relationship” in the decision’s opening paragraph. This approach will likely continue to influence lower courts as well.

---

Please contact your McInnes Cooper lawyer or any member of our McInnes Cooper Aboriginal Law Team to discuss this topic or any other legal issue.

---

McInnes Cooper has prepared this document for information only; it is not intended to be legal advice.  You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.

© McInnes Cooper, 2016.  All rights reserved.  McInnes Cooper owns the copyright in this document. You may reproduce and distribute this document in its entirety as long as you do not alter the form or the content and you give McInnes Cooper credit for it. You must obtain McInnes Cooper’s consent for any other form of reproduction or distribution. Email us at [email protected] to request our consent.