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When the Supreme Court of Canada issued its decision in Daniels v. Canada (Indian Affairs and Northern Development), it changed the landscape of Indigenous rights. This decision impacts provincial and federal governments, industry and non-status Indian and Metis communities. More importantly, governments will have to rethink their policies and way of doing business, or not doing business, with non-status Indians and Metis peoples.

In the area of land claims, it is worth considering whether the recognition of the rights of non-status Indians would have changed Canada’s approach to negotiating the land claim of the Algonquins of Ontario. The Algonquin negotiating table was made up of an elected representative from each of the nine Algonquin communities and Chief and Council of the Algonquins of Pikwakanagan First Nation; essentially giving the non-status communities a lesser voice in the negotiation process. Even though nine of the communities were not given status under the Indian Act, the Daniels decision would have strengthened their right to consultation and to assert title.

Certain Metis communities have a long history of land occupation and use. These communities may now be in a position to claim title to those lands, as was the case in Manitoba Metis Federation Inc. v. Canada (Attorney General), where the Manitoba Act, 1870 established certain land rights in favour of the Metis of Manitoba. The courts have already recognized this historical occupation of lands in certain parts of Ontario in hunting and fishing cases. Assertion of title may now be within reach of these communities who, the Daniels decision affirmed, have the right to be consulted on matters affecting the exercise of their rights.

The most important impact, however, will be in respect of programs and services offered by Aboriginal Affairs and Northern Development Canada (AANDC). These programs and services are not established under the Indian Act, but rather are provided pursuant to departmental policy. Therefore, AANDC may no longer be able to rely on the lack of recognition of non-status or Metis peoples to refuse to provide services to them.

SCC decisions have effectively included Inuit, and now non-status Indians and Metis, in the definition of “Indians” within the meaning of section 91(24) of the Constitution Act, 1867. AANDC may have to reconsider its formulae for determining status and whether this is even relevant today. A new definition of “Indian” is needed, one that is inclusive of Canada’s varied Indigenous population.

From there, AANDC must rethink the provision of its services. All of the Daniels decisions highlighted the lack of services for non-status and Metis peoples. This situation has led to the development of a forgotten peoples, who fall between the jurisdictional cracks when it comes to social and financial assistance.

The SCC has essentially affirmed that non-status Indians and Metis are Indians with all the rights attaching to their identity. It is time now for government to adjust its policies and practices to give effect to this decision.

To read more about the Daniels decision, see our previous blog post.

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This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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