Non-status Indians and Métis now federal persons: Duty to consult and accommodate may arise on rights assertion

Métis and non-status Indians are now under federal jurisdiction and may assert Aboriginal rights. This was confirmed by the Supreme Court of Canada in Daniels v. Canada (Indian Affairs and Northern Development), 2016 SCC 12, released April 14, 2016.

The implications of this decision clarify rights and jurisdiction for a wide-swath of Métis and non-status individuals across Canada, ending what the Supreme Court called a “jurisdictional tug-of-war” and a “jurisdictional wasteland.” Prior to this, both federal and provincial governments had denied legislative authority over such persons, with some exceptions. Such individuals had to rely on the goodwill of each government to obtain any recognition of their status or rights, and any consultation over impacts to their traditional practices. Now, such persons may have access to federal programs, services and initiatives and may negotiate for recognition of their rights.

At issue was whether Métis and non-status Indians were “Indians” under s.91(24) of the Constitution Act, 1867; whether the federal Crown owes a fiduciary duty to such persons; and whether Métis and non-status Indians have the right to be consulted and negotiated with. Only the first issue was decided.

The Court clarified the purposes of the Métis rights test from Powley, stating that it was developed specifically for the purposes of protecting historic community-held rights under s. 35 of the Constitution Act, 1982, and that it did not define who was or was not of Métis ancestry.

The second and third declarations were not granted. The Court noted that Canada’s Aboriginal peoples and Métis have a fiduciary relationship with the Crown (see Manitoba Métis Federation v. Canada (Attorney General), [2013] 1 SCR 623, and Delgamuukw v British Columbia, [1997] 3 SCR 1010). The Court did not elaborate on what such groups, particularly non-status Indians, must demonstrate to trigger the relationship.

Relating to consultation, the Court stated that the duty to consult is engaged when Aboriginal rights are asserted by non-status Indians and Métis. This would be dependent on the strength of the rights claim and sit along the Haida Nation v. British Columbia (Minister of Forests), [2004] 3 SCR 511 consultation spectrum. The test and burden on non-status Indians to demonstrate the right was not set; a prima facie case is presumed.

In the short term, the Daniels decision assists Métis and non-status individuals as finally knowing who to lobby and negotiate with in regards to their rights and status. In the long term, the case will lead to further litigation on consultation, and whether the Crown’s fiduciary duty is engaged relating to certain decisions affecting Métis and non-status Indians. The key to future development will likely lie in the strength of the rights claims asserted by these individuals.

If you are a business with knowledge of a rights claim by an Aboriginal, Métis, or non-status Indian entity, an impact benefit agreement may be a reasoned way to avoid delays in your project and ensure the duty to consult and accommodate is met on behalf of the Provincial and Federal Crown. Such agreements can avoid litigation entirely, and provide benefits to both the group asserting the right and the business undertaking the work.