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Nelligan O'Brien Payne gratefully acknowledges the contribution of Suzanne Dunn, Student-at-Law in writing this blog post.

Are Métis and non-status Indians considered to be “Indians” under s. 91(24) of the Constitution Act, 1867?

Henry Daniels asked the courts this question in 1999, and 17 years later, the Supreme Court of Canada gave him an answer: “Yes”.

On April 14, 2016, the Supreme Court of Canada released its decision in Daniels v. Canada (Indian Affairs and Northern Development). Though Henry Daniels was no longer alive to hear it, his son Gabriel Daniels was present at the Supreme Court to celebrate his father’s long-fought success.

In 1999, Henry Daniels sought three declarations by the court:

1.     Métis and non-status Indians are “Indians” under s. 91(24) of the Constitution Act, 1867

2.     The federal Crown owes a fiduciary duty to Métis and non-status Indians

3.     Métis and non-status Indians have the right to be consulted and negotiated with.

Daniels sought this declaration because Métis and non-status Indians were in what the Supreme Court described as a “jurisdictional wasteland”. Neither the federal nor the provincial government would take jurisdictional authority over these groups, leaving them in legal limbo.

When Métis or non-status Indians turned to either level of government for funding or programming for their communities, each level would often cite section 91(24) as the legal authority to deflect the constitutional responsibility on to the other level of government.

According to the Supreme Court, this has resulted in “obvious disadvantaging consequences” for Métis and non-status Indians, and has deprived them of significant funding for their programs and services. 

In deciding that Métis and non-status Indians are “Indians” under s. 91(24), and are therefore the responsibility of the federal government, the Supreme Court reviewed the historical, philosophical and linguistic meanings of “Indian”.

It held that though the Métis have a distinct cultural heritage, there is no specific cultural or ethnic label that precisely defines who is Métis or non-status Indians. There are cultural, social and genetic ties that have been used to define these groups, but none are definitive. The Court held that this does not preclude them from being “Indians” in s. 91(24), as that term includes all Aboriginal peoples.

The Supreme Court cited governmental references as early as 1818 where Métis and non-status Indians where included in the definition of “Indian”. Métis and non-status Indians had been included in “Indian” federal governmental policy, including the expansion of British North America, the signing of treaties, and residential schools.

These were some of the reasons that the Supreme Court declared that Métis and non-status Indians are “Indians” under the Constitution Act, 1867.

Following this declaration, Métis or non-Indian individuals and communities will be classified as “Indians” under s. 91(24) on a fact-driven, case-by-case basis. This determination will not be restricted by the test in R v. Powley, which requires community acceptance of individuals. The test in Powley was not broad enough to include those individuals who may have been separated from their community for social or governmental reasons.

As for the other two declarations, the Supreme Court held that there was no need for a declaration, as these were already settled points at law.

The Supreme Court had already recognized that the Crown has a fiduciary duty to Aboriginal people, including the Métis. It also previously recognized the duty to negotiate when Aboriginal rights are engaged.


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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