The Daniels v. Canada decision found that Métis and non-status Indians are "Indians" under section 91(24) of the Constitution Act, placing them under federal jurisdiction. This has implications such as potentially invalidating the Métis Settlements Act in Alberta. It also suggests the province can no longer infringe on Métis rights, only the federal government, and that only the federal government could previously extinguish Métis rights before 1982. While the decision does not change the definitions in the Indian Act, it strengthens recognition of Métis as among the Aboriginal people protected under the constitution.

1. Daniels v. Canada:
Overview and Implications
Max Faille, Partner
Paul Seaman, Associate

2. Daniels Decision
Daniels v. Canada – overview of
decision and reasons
2

3. Daniels Decision
Daniels v. Canada
• Federal Court action started in 1999 by CAP
• CAP asked for a “declaration” as to the state
of the law with respect to s. 91(24) of the
Constitution Act, federal fiduciary duties to
Métis, and obligations to consult
• These requests were met with very strong
litigation tactics by Canada
3

4. Daniels Decision
Daniels v. Canada
• Because there was no direct evidence of
what the purpose of s. 91(24) was, the Court
relied heavily on the evidence of five
historical experts (3 from CAP, 2 from
Canada)
• Where there was a conflict, the judge tended
to prefer the evidence of CAP’s experts
4

5. Daniels Decision
Daniels v. Canada
• Judge accepted that s. 91(24) was intended
to be “sufficiently broad” to address matters
that would assist in facilitating the goals of
Confederation
• Building a national economy, with a national
railway was an integral part of that goal
5

6. Daniels Decision
Daniels v. Canada
• Goals of confederation:
• establishment and maintenance of peaceful relations
with Aboriginal people of all different varieties;
• the payment of one-time cash amounts for the
surrender of Aboriginal interests in land;
• the payment of ongoing annuities;
6

7. Daniels Decision
Daniels v. Canada
• Goals of confederation:
• the creation and acceptance of surrenders of reserve;
• the recognition, pacification, control and dealing with
interest in land of Métis who were seen as distinct in
some respects from “Indians”, who did not live with
Indians, who were not necessarily members of “Indian
tribes” or who not necessarily followed an “Indian” way
of life.
7

8. Daniels Decision
Daniels v. Canada
• Judge accepted that the underlying purposes
of s. 91(24) could generally be described as
follows:
• to control Aboriginal people and communities where
necessary to facilitate development of the Dominion.
• to honour the obligations to Aboriginal people that the
Dominion inherited from Britain while extinguishing
interests that stood in the way of the objects of
Confederation.
• eventually “civilize and assimilate” Aboriginal people.
8

9. Daniels Decision
Daniels v. Canada
• Applying constitutional law principles, judge
held as follows:
• [566] […] I accept the Plaintiffs’ argument supported by the
opinions of Professor Wicken and Ms. Jones that the purpose of
the Indian Power included the intent to control all people of
aboriginal heritage in the new territories of Canada. The purpose
of the Indian Power included assisting with the expansion and
settlement of the West of which the building of the railway was a
part. Absent a broad power over a broad range of people sharing
a native hereditary base, the federal government would have
difficulty achieving this goal.
9

10. Daniels Decision
Daniels v. Canada
• Court granted the first declaration that Métis
and non-status Indians were Indians under
federal 91(24) jurisdiction
• Commented that the case was “more direct”
in respect of non-status Indians than Métis
• Court relied primarily on evidence from the
pre-Confederation period and immediately
after, but also on post-Confederation policies
well into the modern day.
10

11. Daniels Decision
Daniels v. Canada –
Possible Implications
11

12. Daniels Decision
• What Daniels does not mean:
• Métis are not now “Indians” within the meaning of the
Indian Act
• The Indian Act definitions as to who is an Indian still apply,
for the purposes of the Indian Act
• Métis and non-status Indians (as well as Inuit) are excluded
• Métis do not obtain tax-exempt status; nor are they subject
to any of the limitations or restrictions of the Indian Act
• Métis do not qualify under federal programs for First
Nations and Inuit (post-secondary education, non-insured
health benefits, etc.)
12

13. Daniels Decision
• What Daniels does not mean:
• No legal change in relation to consultation and
accommodation
• Métis rights are already protected under s. 35
• Duty to consult & accommodate already exists in relation
to Métis
• However, there may be a practical change in attitude
• Effect has been to strengthen recognition of Métis as
among the Aboriginal people protected under the
constitution
13

14. Daniels Decision
Implications
• Immediate effect may be that the Métis
Settlements Act (Alberta) becomes could be
invalid for the reason that it impermissibly
legislates in respect of Métis and lands reserved
for Métis
• This is consistent with the Charlottetown Accord
14

15. Daniels Decision
Implications
• Impact on infringement test: suggests that the
province cannot infringe Métis rights; only the
federal Parliament can
• There is no equivalent to s. 88 of the Indian Act
in relation to Métis
• Section 88 allows provincial laws of general
application to apply to Indians
• Also, only the federal Parliament could
extinguish Métis rights before 1982
15

16. Thank You
Maxime Faille, Partner Paul Seaman, Associate
Ottawa Office Toronto Office
Tel: 613-783-8801 Tel: 416-862-3614
maxime.faille@gowlings.com paul.seaman@gowlings.com
montréal ottawa toronto hamilton waterloo region calgary vancouver moscow london 16