Daniels v. Canada:Overview and Implications

Max Faille, PartnerPaul Seaman, Associate

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Daniels Decision

Daniels v. Canada – overview of decision and reasons

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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

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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

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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

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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;

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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.

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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.

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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.

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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.

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Daniels Decision

Daniels v. Canada –

Possible Implications

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.)

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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

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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

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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

16montréal · ottawa · toronto · hamilton · waterloo region · calgary · vancouver · moscow · london

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montréal · ottawa · toronto · hamilton · waterloo region · calgary · vancouver · moscow · london

Thank You

Paul Seaman, AssociateToronto OfficeTel: 416-862-3614paul.seaman@gowlings.com

Maxime Faille, PartnerOttawa OfficeTel: 613-783-8801maxime.faille@gowlings.com