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Supreme Court of Canada decides Métis and non‑status Indians are “Indians” under s. 91(24) of the Constitution Act, 1867

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"Three declarations are sought in this case: (1) that Métis and non‑status Indians are “Indians” under s. 91(24) of the Constitution Act, 1867; (2) that the federal Crown 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 trial judge’s conclusion was that “Indians” under s. 91(24) is a broad term referring to all Indigenous peoples in Canada. He declined, however, to grant the second and third declarations. The Federal Court of Appeal accepted that “Indians” in s. 91(24) included all Indigenous peoples generally. It upheld the first declaration, but narrowed its scope to exclude non‑status Indians and include only those Métis who satisfied the three criteria from R. v. Powley, [2003] 2 S.C.R. 207. It also declined to grant the second and third declarations. The appellants sought to restore the first declaration as granted by the trial judge, and asked that the second and third declarations be granted. The Crown cross‑appealed, arguing that none of the declarations should be granted. It conceded that non‑status Indians are “Indians” under s. 91(24)."

The S.C.C. (9:0) allowed the appeal in part.

From the decision:

Justice Abella wrote as follows (at paras. 17-19, 34-35, 47-54):

"There is no consensus on who is considered Métis or a non-status Indian, nor need there be. Cultural and ethnic labels do not lend themselves to neat boundaries. ‘Métis’ can refer to the historic Métis community in Manitoba’s Red River Settlement or it can be used as a general term for anyone with mixed European and Aboriginal heritage. Some mixed-ancestry communities identify as Métis, others as Indian:

  • There is no one exclusive Metis People in Canada, anymore than there is no one exclusive Indian people in Canada. The Metis of eastern Canada and northern Canada are as distinct from Red River Metis as any two peoples can be. . . . As early as 1650, a distinct Metis community developed in LeHeve [sic], Nova Scotia, separate from Acadians and Micmac Indians. All Metis are aboriginal people. All have Indian ancestry.

(R. E. Gaffney, G. P. Gould and A. J. Semple, Broken Promises: The Aboriginal Constitutional Conferences(1984), at p. 62, quoted in Catherine Bell, “Who are the Metis People in Section 35(2)?” (1991), 29 Alta. L. Rev. 351, at p. 356.)

The definitional contours of ‘non-status Indian’ are also imprecise. Status Indians are those who are recognized by the federal government as registered under the Indian Act, R.S.C. 1985, c. I-5. Non-status Indians, on the other hand, can refer to Indians who no longer have status under the Indian Act, or to members of mixed communities which have never been recognized as Indians by the federal government. Some closely identify with their Indian heritage, while others feel that the term Métis is more reflective of their mixed origins.

These definitional ambiguities do not preclude a determination into whether the two groups, however they are defined, are within the scope of s. 91(24). I agree with the trial judge and Federal Court of Appeal that the historical, philosophical, and linguistic contexts establish that “Indians” in s. 91(24) includesall Aboriginal peoples, including non-status Indians and Métis.

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Moreover, while it does not define the scope of s. 91(24), it is worth noting that s. 35 of theConstitution Act, 1982 states that Indian, Inuit, and Métis peoples are Aboriginal peoples for the purposes of the Constitution. This Court recently explained that the “grand purpose” of s. 35 is “[t]he reconciliation of Aboriginal and non-Aboriginal Canadians in a mutually respectful long-term relationship”: Beckman v. Little Salmon/Carmacks First Nation, [2010] 3 S.C.R. 103, at para. 10. And in R. v. Sparrow, [1990] 1 S.C.R. 1075, this Court noted that ss. 35 and 91(24) should be read together: para. 62, cited in Manitoba Metis Federation Inc. v. Canada (Attorney General), [2013] 1 S.C.R. 623, at para. 69.

The term “Indian” or “Indians” in the constitutional context, therefore, has two meanings: a broad meaning, as used in s. 91(24), that includes both Métis and Inuit and can be equated with the term “aboriginal peoples of Canada” used in s. 35, and a narrower meaning that distinguishes Indian bands from other Aboriginal peoples. As will be noted later in these reasons, this Court in Reference as to whether “Indians” in s. 91(24) of the B.N.A. Act includes Eskimo inhabitants of the Province of Quebec, [1939] S.C.R. 104 (“Re Eskimo”), held that s. 91(24) includes the Inuit. Since the federal government concedes that s. 91(24) includes non-status Indians, it would be constitutionally anomalous, as the Crown also conceded, for the Métis to be the only Aboriginal people to be recognized and included in s. 35 yet excluded from the constitutional scope of s. 91(24).

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Determining whether particular individuals or communities are non-status Indians or Métis and therefore “Indians” under s. 91(24), is a fact-driven question to be decided on a case-by-case basis in the future, but it brings us to whether, for purposes of s. 91(24), Métis should be restricted to the definitional criteria set out in Powley in accordance with the decision of the Federal Court of Appeal, or whether, as the appellants and some of the interveners urged, the membership base should be broader.

The issue in Powley was who is Métis under s. 35 of the Constitution Act, 1982. The case involved two Métis hunters who were charged with violating the Game and Fish Act, R.S.O. 1990, c. G.1. They claimed that the Métis had an Aboriginal right to hunt for food under s. 35(1). The Court agreed and suggested three criteria for defining who qualifies as Métis for purposes of s. 35(1):

1. Self-identification as Métis;
2. An ancestral connection to an historic Métis community; and
3. Acceptance by the modern Métis community.

The third criterion — community acceptance — raises particular concerns in the context of this case. The criteria in Powley were developed specifically for purposes of applying s. 35, which is about protecting historic community-held rights: para. 13. That is why acceptance by the community was found to be, for purposes of who is included as Métis under s. 35, a prerequisite to holding those rights. Section 91(24) serves a very different constitutional purpose. It is about the federal government’s relationship with Canada’s Aboriginal peoples. This includes people who may no longer be accepted by their communities because they were separated from them as a result, for example, of government policies such as Indian Residential Schools. There is no principled reason for presumptively and arbitrarily excluding them from Parliament’s protective authority on the basis of a “community acceptance” test.

The first declaration should, accordingly, be granted as requested. Non-status Indians and Métis are “Indians” under s. 91(24) and it is the federal government to whom they can turn.

But federal jurisdiction over Métis and non-status Indians does not mean that all provincial legislation pertaining to Métis and non-status Indians is inherently ultra vires. This Court has recognized that courts “should favour, where possible, the ordinary operation of statutes enacted by both levels of government”: Canadian Western Bank v. Alberta, [2007] 2 S.C.R. 3, at para. 37 (emphasis in original). Moreover, this Court has been clear that federal authority under s. 91(24) does not bar valid provincial schemes that do not impair the core of the “Indian” power: NIL/TU,O Child and Family Services Society v. B.C. Government and Service Employees’ Union, [2010] 2 S.C.R. 696, at para. 3.

I agree, however, with both the trial judge and the Federal Court of Appeal that neither the second nor third declaration should be granted.

The second declaration sought is to recognize that the Crown owes a fiduciary duty to Métis and non-status Indians. Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010 accepted that Canada’s Aboriginal peoples have a fiduciary relationship with the Crown and Manitoba Metis Federation accepted that such a relationship exists between the Crown and Métis. As a result, the declaration lacks practical utility because it is restating settled law.

The third declaration sought is that Métis and non-status Indians have the right to be consulted and negotiated with, in good faith, by the federal government on a collective basis through representatives of their choice, respecting all their rights, interests and needs as Aboriginal peoples."

Note: The summary and body are drawn from Eugene Meehan’s SupremeAdvocacy Weekly Updates for the Law Community.


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