Daniels et al. v. Canada (Minister of Indian Affairs and Northern Development) et al., (2016) 481 N.R. 348 (SCC)

• Judge: McLachlin, C.J.C., Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown JJ.
• Court: Supreme Court (Canada)
• Case Date: October 08, 2015
• Jurisdiction: Canada (Federal)
• Citations: (2016), 481 N.R. 348 (SCC);2016 SCC 12

Daniels v. Can. (2016), 481 N.R. 348 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2016] N.R. TBEd. AP.016

Harry Daniels, Gabriel Daniels, Leah Gardner, Terry Joudrey and Congress of Aboriginal Peoples (appellants/respondents on cross-appeal) v. Her Majesty the Queen as represented by the Minister of Indian Affairs and Northern Development and Attorney General of Canada (respondents/appellants on cross-appeal) and Attorney General for Saskatchewan, Attorney General of Alberta, Native Council of Nova Scotia, New Brunswick Aboriginal Peoples Council, Native Council of Prince Edward Island, Métis Settlements General Council, Te'mexw Treaty Association, Métis Federation of Canada, Aseniwuche Winewak Nation of Canada, Chiefs of Ontario, Gift Lake Métis Settlement, Native Alliance of Quebec, Assembly of First Nations and Métis National Council (interveners)

(35945; 2016 SCC 12; 2016 CSC 12)

Indexed As: Daniels et al. v. Canada (Minister of Indian Affairs and Northern Development) et al.

Supreme Court of Canada

McLachlin, C.J.C., Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown JJ.

April 14, 2016.

Summary:

The plaintiffs sought declarations (a) that Métis and Non-status Indians were "Indians" within the meaning of the expression "Indians and lands reserved for Indians" in s. 91(24) of the Constitution Act, 1867; (b) that the Queen (in right of Canada) owed a fiduciary duty to Métis and Non-status Indians; and (c) that the Métis and Non-status Indian peoples of Canada had 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.

The Federal Court, in a decision reported 426 F.T.R. 1, declared that those persons who were Métis and those who were Non-status Indians as set forth in the reasons for judgment of the court, were "Indians" within the meaning of s. 91(24) of the Constitution Act, 1867. The court refused to grant the other declarations sought, although the court opined that the fiduciary relationship existed as a matter of law flowing from the declaration that Métis and Non-status Indians were "Indians" pursuant to s. 91(24). The Crown appealed and the plaintiffs cross-appealed.

The Federal Court of Appeal, in a decision reported 457 N.R. 347, allowed the appeal in part and dismissed the cross-appeal. The court accepted the trial judge's findings of fact, including that "Indians" in s. 91(24) included all Indigenous peoples generally. It therefore upheld the trial judge's decision to grant 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 (SCC 2003). While it was of the view that Non-status Indians were clearly "Indians", setting that out in a declaration would be redundant and of no practical usefulness. For the same reasons as the trial judge, the Court of Appeal declined to grant the second and third declarations. The court restated the declaration as follows: "The Court declares that the Métis are included as 'Indians' within the meaning of section 91(24) of the Constitution Act, 1867". The plaintiffs appealed and the Crown cross-appealed.

The Supreme Court of Canada allowed the appeal in part. The declaration originally sought by the plaintiffs should be granted (i.e., that both Métis and Non-status Indians were "Indians" within the meaning of the expression "Indians and lands reserved for Indians" in s. 91(24) of the Constitution Act, 1867). The decisions in the courts below not to grant the other declarations were upheld. The cross-appeal was dismissed.

Administrative Law - Topic 4501

Judicial review - Declaratory action - General principles - When available - The Supreme Court of Canada stated that "This Court most recently restated the applicable test for when a declaration should be granted in Canada (Prime Minister) v. Khadr, [2010] 1 S.C.R. 44. The party seeking relief must establish that the court has jurisdiction to hear the issue, that the question is real and not theoretical, and that the party raising the issue has a genuine interest in its resolution. A declaration can only be granted if it will have practical utility, that is, if it will settle a 'live controversy' between the parties ..." - See paragraph 11.

Administrative Law - Topic 4501

Judicial review - Declaratory action - General principles - When available - The plaintiffs sought a declaration in Federal Court that: (a) that Métis and Non-status Indians were "Indians" within the meaning of the expression "Indians and lands reserved for Indians" in s. 91(24) of the Constitution Act, 1867; (b) that federal government owed a fiduciary duty to Métis and Non-status Indians; and (c) that the Métis and Non-status Indian peoples of Canada had 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 - At issue was whether the declarations would have practical utility - The Supreme Court of Canada stated that there could be no doubt that granting the first declaration met that threshold - "Delineating and assigning constitutional authority between the federal and provincial governments will have enormous practical utility for these two groups who have, until now, found themselves having to rely more on noblesse oblige than on what is obliged by the Constitution" - However, the second and third declarations lacked practical utility as they would be restatements of the existing law - See paragraphs 12 to 21.

Constitutional Law - Topic 6351

Federal jurisdiction (s. 91) - Indians and land reserved for Indians - Indian defined - The Supreme Court of Canada declared that Métis and Non-status Indians were "Indians" within the meaning of s. 91(24) of the Constitution Act, 1867, which granted federal jurisdiction over "Indians, and Lands reserved for the Indians" - The court stated, however, that federal jurisdiction over Métis and Non-status Indians did not mean that all provincial legislation pertaining to Métis and Non-status Indians was inherently ultra vires - Courts should favour, where possible, the ordinary operation of statutes enacted by both levels of government - Federal authority under s. 91(24) did not bar valid provincial schemes that did not impair the core of the "Indian" power - See paragraphs 20 to 51.

Constitutional Law - Topic 6351

Federal jurisdiction (s. 91) - Indians and land reserved for Indians - Indian defined - [See second Administrative Law - Topic 4501 ].

Courts - Topic 4043

Federal Court of Canada - Jurisdiction - Trial Division - Declaratory relief - [See second Administrative Law - Topic 4501 ].

Indians, Inuit and Métis - Topic 2

General - Indian defined - [See first Constitutional Law - Topic 6351 ].

Indians, Inuit and Métis - Topic 2.1

General - Métis defined - [See first Constitutional Law - Topic 6351 ].

Indians, Inuit and Métis - Topic 3

General - Duty owed to Indians by Crown (incl. fiduciary duties, consultation duties and honour of the Crown) - [See second Administrative Law - Topic 4501 ].

Indians, Inuit and Métis - Topic 3.3

General - Duty owed to Métis by Crown (incl. fiduciary duties, consultation duties and honour of the Crown) - [See second Administrative Law - Topic 4501 ].

Indians, Inuit and Métis - Topic 3.4

General - Duty owed to Non-status Indians by Crown (incl. fiduciary duties, consultation duties and honour of the Crown) - [See second Administrative Law - Topic 4501 ].

Cases Noticed:

R. v. Powley (S.) et al., [2003] 2 S.C.R. 207; 308 N.R. 201; 177 O.A.C. 201; 2003 SCC 43, dist. [para. 9].

Khadr v. Prime Minister (Can.) et al., [2010] 1 S.C.R. 44; 397 N.R. 294; 2010 SCC 3, refd to. [para. 11].

Solosky v. Canada, [1980] 1 S.C.R. 821; 30 N.R. 380, refd to. [para. 11].

Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; 92 N.R. 110; 75 Sask.R. 82; 57 D.L.R.(4th) 231, refd to. [para. 11].

Ardoch Algonquin First Nation and Allies et al. v. Ontario et al., [2000] 1 S.C.R. 950; 255 N.R. 1; 134 O.A.C. 201; 2000 SCC 37, refd to. [para. 14].

Lovelace v. Ontario - see Ardoch Algonquin First Nation and Allies et al. v. Ontario et al.

Little Salmon/Carmacks First Nation et al. v. Beckman et al., [2010] 3 S.C.R. 103; 408 N.R. 281; 295 B.C.A.C. 1; 501 W.A.C. 1; 2010 SCC 53, refd to. [para. 34].

R. v. Sparrow, [1990] 1 S.C.R. 1075; 111 N.R. 241, refd to. [para. 34].

Manitoba Metis Federation Inc. v. Canada (Attorney General), [2013] 1 S.C.R. 623; 441 N.R. 209; 291 Man.R.(2d) 1; 570 W.A.C. 1; 2013 SCC 14, refd to. [para. 34].

Eskimo Reference, Re, [1939] S.C.R. 104, refd to. [para. 35].

Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) et al., [2005] 3 S.C.R. 388; 342 N.R. 82; 2005 SCC 69, refd to. [para. 36].

Lax Kw'alaams Indian Band et al. v. Canada (Attorney General) et al., [2011] 3 S.C.R. 535; 423 N.R. 3; 313 B.C.A.C. 3; 533 W.A.C. 3; 2011 SCC 56, refd to. [para. 36].

Canard Estate et al. v. Canada (Attorney General) and Rees, [1976] 1 S.C.R. 170; 4 N.R. 91, refd to. [para. 40].

Peavine Metis Settlement et al. v. Alberta (Minister of Aboriginal Affairs and Northern Development) et al., [2011] 2 S.C.R. 670; 418 N.R. 101; 505 A.R. 1; 522 W.A.C. 1; 2011 SCC 37, refd to. [para. 42].

Alberta (Aboriginal Affairs and Northern Development) v. Cunningham - see Peavine Metis Settlement et al. v. Alberta (Minister of Aboriginal Affairs and Northern Development) et al.

R. v. Blais (E.L.J.), [2003] 2 S.C.R. 236; 308 N.R. 371; 180 Man.R.(2d) 3; 310 W.A.C. 3, dist. [para. 44].

Reference Re Same-Sex Marriage, [2004] 3 S.C.R. 698; 328 N.R. 1; 2004 SCC 79, refd to. [para. 44].

Canadian Western Bank et al. v. Alberta, [2007] 2 S.C.R. 3; 362 N.R. 111; 409 A.R. 207; 402 W.A.C. 207; 2007 SCC 22, refd to. [para. 51].

NIL/TU,O Child and Family Services Society v. B.C. Government and Service Employees' Union, [2010] 2 S.C.R. 696; 407 N.R. 338; 294 B.C.A.C. 1; 498 W.A.C. 1; 2010 SCC 45, refd to. [para. 51].

Delgamuukw et al. v. British Columbia et al., [1997] 3 S.C.R. 1010; 220 N.R. 161; 99 B.C.A.C. 161; 162 W.A.C. 161, refd to. [para. 53].

Haida Nation v. British Columbia (Minister of Forests) et al., [2004] 3 S.C.R. 511; 327 N.R. 53; 206 B.C.A.C. 52; 338 W.A.C. 52; 2004 SCC 73, refd to. [para. 56].

William v. British Columbia et al., [2014] 2 S.C.R. 257; 459 N.R. 287; 356 B.C.A.C. 1; 610 W.A.C. 1; 2014 SCC 44, refd to. [para. 56].

Tsilhqot'in Nation v. British Columbia - see William v. British Columbia et al.

Statutes Noticed:

Constitution Act, 1867, sect. 91(24) [para. 3].

Constitution Act, 1982, sect. 35 [para. 34]; sect. 37, sect. 37.1 [para. 55, footnote 9].

Counsel:

Joseph Eliot Magnet, Andrew K. Lokan and Lindsay Scott, for the appellants/respondents on cross-appeal;

Mark R. Kindrachuk, Q.C., Christopher M. Rupar and Shauna K. Bedingfield, for the respondents/appellants on cross-appeal;

P. Mitch McAdam, Q.C., for the intervener, the Attorney General for Saskatchewan;

Angela Edgington and Neil Dobson, for the intervener, the Attorney General of Alberta;

Written submissions only by D. Bruce Clarke, Q.C., for the interveners the Native Council of Nova Scotia, the New Brunswick Aboriginal Peoples Council and the Native Council of Prince Edward Island;

Garry Appelt and Keltie Lambert, for the intervener, the Métis Settlements General Council;

Written submissions only by Robert J. M. Janes and Elin R. S. Sigurdson, for the intervener, the Te'mexw Treaty Association;

Christopher G. Devlin, John Gailus and Cynthia Westaway, for the intervener, the Métis Federation of Canada;

Karey M. Brooks and Claire Truesdale, for the intervener, the Aseniwuche Winewak Nation of Canada;

Scott Robertson, for the intervener, the Chiefs of Ontario;

Paul Seaman and Maxime Faille, for the intervener, the Gift Lake Métis Settlement;

Marc Watters and Lina Beaulieu, for the intervener, the Native Alliance of Quebec;

Guy Régimbald and Jaimie Lickers, for the intervener, the Assembly of First Nations;

Jason T. Madden, Clément Chartier, Q.C., Kathy Hodgson-Smith and Marc Leclair, for the intervener, the Métis National Council.

Solicitors of Record:

University of Ottawa, Ottawa; Paliare Roland Rosenberg Rothstein, Toronto, Ontario, for appellants/respondents on cross-appeal;

Attorney General of Canada, Saskatoon, Ottawa, Ontario and Edmonton, Alberta, for the respondents/appellants on cross-appeal;

Attorney General for Saskatchewan, Regina, for the intervener, the Attorney General for Saskatchewan;

Attorney General of Alberta, Edmonton, Alberta, for the intervener, the Attorney General of Alberta;

Burchells, Halifax, Nova Scotia, for the interveners, the Native Council of Nova Scotia, the New Brunswick Aboriginal Peoples Council and the Native Council of Prince Edward Island;

Witten, Edmonton, Alberta, Alberta, for the intervener, the Métis Settlements General Council;

JFK Law Corporation, Vancouver, British Columbia, for the intervener, the Te'mexw Treaty Association;

Devlin Gailus Westaway, Victoria, British Columbia, for the intervener, the Métis Federation of Canada;

JFK Law Corporation, Vancouver and Victoria, British Columbia, for the intervener, the Aseniwuche Winewak Nation of Canada;

Nahwegahbow, Corbiere Genoodmagejig, Rama, Ontario, for the intervener, the Chiefs of Ontario;

Gowling WLG (Canada) Inc., Ottawa, Ontario, for the intervener, the Gift Lake Métis Settlement;

Gagné Letarte, Québec, Quebec, for the intervener, the Native Alliance of Quebec;

Gowling WLG (Canada) Inc., Ottawa, Ontario, for the intervener the Assembly of First Nations;

Métis National Council, Ottawa, Ontario, for the intervener, the Métis National Council.

This appeal was heard on October 8, 2015, before McLachlin, C.J.C., Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown JJ., of the Supreme Court of Canada. The following decision was delivered for the court, in both official languages, on April 14, 2016, by Abella, J.