Daniels et al. v. Canada (Minister of Indian Affairs and Northern Development) et al., (2013) 426 F.T.R. 1 (FC)

• Judge: Phelan, J.
• Court: Federal Court (Canada)
• Case Date: January 08, 2013
• Jurisdiction: Canada (Federal)
• Citations: (2013), 426 F.T.R. 1 (FC);2013 FC 6

Daniels v. Can. (2013), 426 F.T.R. 1 (FC)

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[French language version follows English language version]

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

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Temp. Cite: [2013] F.T.R. TBEd. JA.004

Harry Daniels, Gabriel Daniels, Leah Gardner, Terry Joudrey and the Congress of Aboriginal Peoples (plaintiffs) v. Her Majesty the Queen, as represented by the Minister of Indian Affairs and Northern Development and the Attorney General of Canada (defendants)

(T-2172-09; 2013 FC 6; 2013 CF 6)

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

Federal Court

Phelan, J.

January 8, 2013.

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 as Aboriginal people; 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 declared those persons who were Métis and those who were Non-status Indians as set forth in the reasons for judgment below 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).

Administrative Law - Topic 4501

Judicial review - Declaratory action - General principles - When available - [See both Administrative Law - Topic 4506 ].

Administrative Law - Topic 4506

Judicial review - Declaratory action - General principles - Discretionary nature - At issue in this litigation was whether Non-status Indians and Métis were "Indians" under s. 91(24) of the Constitution Act, 1867, which granted federal jurisdiction over "Indians, and Lands reserved for the Indians" - The Crown argued that this was too difficult a case to decide (i.e., the definitional difficulties in defining who fell within the term "Indian" in s. 91(24) should preclude a remedy) - The Federal Court held that there was a live, justiciable issue for which the difficulties, real or otherwise, could not be a reason to deny people a remedy where appropriate - "In general terms persons have a right to know who has jurisdiction over them and the adage 'where there is a right, there is a remedy' is applicable" - See paragraphs 13 and 48 to 83.

Administrative Law - Topic 4506

Judicial review - Declaratory action - General principles - Discretionary nature - The plaintiffs sought a declaration, inter alia, that Métis and Non-status Indians were "Indians" under s. 91(24) of the Constitution Act, 1867 - The Crown argued that the court ought not to decide this matter because it was a theoretical matter which would resolve nothing and the court should not exercise its discretion to grant any of the declarations requested - The Federal Court disagreed - The court held, inter alia, that it had jurisdiction over the case, the question before the court was real and the persons raising the issues had a real interest to raise it - Further, given the significant time (12 years) and millions of public funds invested in the action, it would not be in the public interest to exercise the court's discretion to not decide the matter - See paragraphs 13 to 16 and 43 to 83.

Courts - Topic 4043

Federal Court of Canada - Jurisdiction - Trial Division - Declaratory relief - [See both Administrative Law - Topic 4506 ].

Constitutional Law - Topic 1005

Interpretation of Constitution Act - General principles - Principle of flexibility - Living tree doctrine - The plaintiffs sought declarations 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 - An issue arose as to which constitutional interpretation principles applied - The Federal Court held that the purposive approach (the "living tree" doctrine), was the appropriate approach - See paragraphs 534 to 544.

Constitutional Law - Topic 6351

Federal jurisdiction (s. 91) - Indians and land reserved for Indians - Indian defined - At issue was whether Métis and Non-status Indians were "Indians" within the meaning of s. 91(24) of the Constitution Act, which granted federal jurisdiction over "Indians, and Lands reserved for the Indians" - The Federal Court declared that Métis and Non-status Indians were "Indians" within the meaning of s. 91(24) - See paragraphs 526 to 619 - In arriving at its conclusion, the court reviewed historical evidence and the evolution of the applicable legislation and treaties from the pre-Confederation era through to the modern era - See paragraphs 183 to 525.

Constitutional Law - Topic 6351

Federal jurisdiction (s. 91) - Indians and land reserved for Indians - Indian defined - At issue was whether Métis and Non-status Indians were "Indians" under s. 91(24) of the Constitution Act, 1867 - The Federal Court discussed the problem of defining what was meant by Non-status Indian for purposes of interpreting s. 91(24) - The court stated that "The group of people characterized as Non-status Indians' are those to whom status could be granted by federal legislation. They would be people who had ancestral connection not necessarily genetic to those considered as 'Indians' either in law or fact or any person who self-identifies as an Indian and is accepted as such by the Indian community, or a locally organized community, branch or council of an Indian association or organization which that person wishes to be associated. It may well be that there must be a determination on a case by case basis for each individual but this general description sufficiently identifies a group of people for whom the issues in this case have meaning" - See paragraphs 111 to 123.

Constitutional Law - Topic 6351

Federal jurisdiction (s. 91) - Indians and land reserved for Indians - Indian defined - At issue was whether Métis and Non-status Indians were "Indians" under s. 91(24) of the Constitution Act, 1867 - The Federal Court discussed the problem of defining what was meant by Métis for purposes of interpreting s. 91(24) - The court concluded that there was no "'one size/description fits all' when it comes to examining Métis on a national scale" - See paragraphs 117 and 124 to 130.

Indians, Inuit and Métis - Topic 2

General - Indian defined - [See both Administrative Law - Topic 4506 and all Constitutional Law - Topic 6351 ].

Indians, Inuit and Métis - Topic 2.1

General - Métis defined - [See both Administrative Law - Topic 4506 and first and third Constitutional Law - Topic 6351 ].

Indians, Inuit and Métis - Topic 2.3

General - Non-status Indian defined - [See both Administrative Law - Topic 4506 and first and second Constitutional Law - Topic 6351 ].

Indians, Inuit and Metis - Topic 3

General - Duty owed to Indians by Crown (incl. fiduciary duties, consultation duties and honour of the Crown) - The plaintiffs sought declarations that Métis and Non-status Indians (MNSI) were "Indians" within s. 91(24) of the Constitution Act, 1867 and that the federal Crown owed a fiduciary duty to MNSI as Aboriginal people - The Federal Court declared that MNSI were "Indians" within s. 91(24) - The court stated that ".. the fiduciary relationship exists as a matter of law flowing from the declaration that MNSI are Indians pursuant to s. 91(24). The relationship engages the honour of the Crown and applies to Métis well as non-status Indians ... However, the declaration which the plaintiffs seek is made without specific facts about what duty has been breached for which such a declaration would have any utility. The Court is not asked to determine that there is a duty to do or not do anything. The Court is not prepared to make some general statement concerning fiduciary duty. Given the declaration of right in respect of s 91(24), one would expect that the federal government would act in accordance with whatever duty arises in respect of any specific matter touching on the non-clarified fiduciary relationship" - See paragraphs 602 to 609.

Indians, Inuit and Metis - Topic 3

General - Duty owed to Indians by Crown (incl. fiduciary duties, consultation duties and honour of the Crown) - The plaintiffs sought declarations that Métis and Non-status Indians (MNSI) were "Indians" within s. 91(24) of the Constitution Act, 1867 and that the MNSI 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 declared that the MNSI were "Indians" within s. 91(24) - The court stated that "Absent better particulars of what is at issue to consult on or negotiate, the Court can offer no guidance. The duty to consult and negotiate depends on the subject matter, the strength of the claim and other factors not before the Court. ... In all of the circumstances, the Court will not grant the declaration for negotiation and consultation. Hopefully, the resolution of the constitutional issue will facilitate resolution on other matters. The refusal to grant the two declarations are without prejudice to any rights to seek similar relief on a further or better record" - See paragraphs 610 to 617.

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 both Indians, Inuit and Metis - Topic 3 ].

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 both Indians, Inuit and Metis - Topic 3 ].

Cases Noticed:

Eskimos, Re, [1939] S.C.R. 104; [1939] 2 D.L.R. 417, refd to. [para. 17].

Reference as to Whether "Indians" in s. 91(24) of the British North America Act, 1867 (U.K.), includes Eskimo inhabitants of the Province of Quebec - see Eskimos, Re.

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; 2003 SCC 44, refd to. [para. 18].

Solosky v. Canada, [1980] 1 S.C.R. 821; 30 N.R. 380; 105 D.L.R.(3d) 745, refd to. [para. 61].

Kitkatla Indian Band et al. v. British Columbia (Minister of Small Business, Tourism and Culture) et al., [2002] 2 S.C.R. 146; 286 N.R. 131; 165 B.C.A.C. 1; 270 W.A.C. 1; 2002 SCC 31, refd to. [para. 67].

R. v. Videoflicks Ltd. et al., [1986] 2 S.C.R. 713; 71 N.R. 161; 19 O.A.C. 239; 30 C.C.C.(3d) 385; 55 C.R.(3d) 193; 35 D.L.R.(4th) 1; 28 C.R.R. 1, refd to. [para. 67].

R. v. Edwards Books and Art Ltd. - see R. v. Videoflicks Ltd. et al.

Manitoba Metis Federation Inc. v. Canada (Attorney General) et al. (2010), 255 Man.R.(2d) 167; 486 W.A.C. 167; 2010 MBCA 71, refd to. [para. 71].

Reference Re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525; 127 N.R. 161; 1 B.C.A.C. 241; 1 W.A.C. 241; 83 D.L.R.(4th) 297, refd to. [para. 72].

R. v. Powley (S.) et al., [2003] 2 S.C.R. 207; 308 N.R. 201; 177 O.A.C. 201; 2003 SCC 43, refd to. [para. 74].

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

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. 75].

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

Peavine Métis 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. 79].

Khadr v. Prime Minister (Can.) et al., [2010] 1 S.C.R. 44; 397 N.R. 294; 2010 SCC 3, refd to. [para. 81].

Reference Re Securities Act, [2011] 3 S.C.R. 837; 424 N.R. 1; 519 A.R. 63; 539 W.A.C. 63; 2011 SCC 66, refd to. [para. 113].

Canard Estate v. Attorney General of Canada, [1976] 1 S.C.R. 170; 4 N.R. 91; [1975] 3 W.W.R. 1; 52 D.L.R.(3d) 548, refd to. [para. 114].

Manitoba Métis Federation Inc. v. Canada (Attorney General) et al. (2007), 223 Man.R.(2d) 42; 2007 MBQB 293, affd. [2010] 3 C.N.L.R. 233; 255 Man.R.(2d) 167; 486 W.A.C. 167; 2010 MBCA 71, leave to appeal granted (2011), 417 N.R. 400 (S.C.C.), refd to. [para. 125].

Montana Indian Band v. Canada (2006), 287 F.T.R. 159; 2006 FC 261, refd to. [para. 163].

Labrador Metis Nation et al. v. Newfoundland and Labrador (Minister of Transportation and Works) et al., [2006] 4 C.N.L.R. 94; 258 Nfld. & P.E.I.R. 257; 779 A.P.R. 257; 2006 NLTD 119, refd to. [para. 231].

Black & Company v. Law Society of Alberta, [1989] 1 S.C.R. 591; 93 N.R. 266; 96 A.R. 352; 58 D.L.R.(4th) 317 (S.C.C.), refd to. [para. 339].

Canada (Attorney General) v. Lavell, [1974] S.C.R. 1349; 38 D.L.R.(3d) 481, refd to. [para. 471].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291; 9 C.R.R. 355; 14 C.C.C.(3d) 97; 41 C.R.(3d) 97; [1984] 6 W.W.R. 577; 33 Alta. L.R.(2d) 193; 27 B.L.R. 297; 84 D.T.C. 6467; 2 C.P.R.(3d) 1; 11 D.L.R.(4th) 641, refd to. [para. 534].

Reference Re Employment Insurance Act, [2005] 2 S.C.R. 669; 339 N.R. 279; 2005 SCC 56, refd to. [para. 535].

Reference Re Same-Sex Marriage, [2004] 3 S.C.R. 698; 328 N.R. 1; 2004 SCC 79, refd to. [para. 538].

Confédération des syndicats nationaux v. Canada (Attorney General), [2008] 3 S.C.R. 511; 382 N.R. 200; 2008 SCC 68, refd to. [para. 543].

Canadian Pioneer Management Ltd. et al. v. Labour Relations Board (Sask.) et al., [1980] 1 S.C.R. 433; 31 N.R. 361; 2 Sask.R. 217; [1980] 3 W.W.R. 214; 107 D.L.R.(3d) 1; 80 C.L.L.C. 14,018, refd to. [para. 551].

Keewatin et al. v. Ontario (Minister of Natural Resources) et al., [2011] O.T.C. Uned. 4801; [2012] 1 C.N.L.R. 13; 2011 ONSC 4801, refd to. [para. 580].

R. v. Sparrow, [1990] 1 S.C.R. 1075; 111 N.R. 241; 56 C.C.C.(3d) 263; [1990] 4 W.W.R. 410; 46 B.C.L.R.(2d) 1; 70 D.L.R.(4th) 385, refd to. [para. 604].

Wewayakum Indian Band v. Canada and Wewayakai Indian Band, [2002] 4 S.C.R. 245; 297 N.R. 1; 2002 SCC 79, refd to. [para. 605].

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. 611].

Statutes Noticed:

Constitution Act, 1867, sect. 91(24) [para. 1].

Authors and Works Noticed:

Canada, Department of Indian Affairs and Northern Development, The Historical Development of the Indian Act (1978), generally [para. 91].

Canada, Department of Indian Affairs and Northern Development, Natives and the Constitution (1980), generally [paras. 99, 104, 136, 493 to 496].

Canada, Department of Indian Affairs and Northern Development, A Review of the Data and Information Situation with Recommendations for Improvements (August 15, 1980), generally [para. 139].

Canada, Department of Regional Economic Expansion, Special ARDA in Relation to the Future Direction of Native Socio-economic Development (February 10, 1977), generally [para. 97].

Hogg, Peter W., Constitutional Law of Canada (5th Ed. 2007), para. 28-4 [para. 527].

Counsel:

Andrew K. Lokan, Joseph E. Magnet and Lindsay Scott, for the plaintiffs;

Brian McLaughlin, Donna Tomljanovic, Kim McCarthy, Amy Martin-Leblanc and E. James Kindrake, for the defendants.

Solicitors of Record:

Paliare Roland Rosenberg Rothstein LLP, Toronto, Ontario, for the plaintiffs;

Joseph E. Magnet, Ottawa, Ontario, for the plaintiffs;

Myles J. Kirvan, Deputy Attorney General of Canada, Vancouver, British Columbia, for the defendants.

This case was heard in Ottawa, Ontario, on May 2-6, 9-12, 16-20, 24-27, 30-31 and June 1-2, 6-10 and 27-30, 2011, before Phelan, J., of the Federal Court, who delivered the following decision on January 8, 2013.