Daniels v. Canada, 2013 FC 6
Background and Procedural History
Section 91(24) of the Constitution Act, 1867 provides for federal jurisdiction over "Indians and lands reserved for Indians." Although the Canadian federal government has consistently acknowledged that the s. 91(24) "head of power" includes legislative and policy matters connected to "status" Indian and Inuit peoples in modern times, it has denied that s. 91(24) provides it with the same power and responsibility with respect to matters connected to Métis and "non-status" Indian peoples ("MNSI"). The essence of the federal government's position has been that because MNSI are not "Indians" within the intent or meaning of s. 91(24), matters connected to MNSI consequently fall to provincial jurisdiction. With some notable exceptions, the provinces have likewise denied that they possess any such authority.
In response to this uncertainty, the late Métis leader Harry Daniels, together with the Congress of Aboriginal Peoples (CAP) as plaintiffs, commenced an action in the Federal Court in 1999. The primary relief sought was a judicial declaration that the breadth of s. 91(24) is such that the federal jurisdiction over "Indians" includes MNSI. The plaintiffs also asked the Court to declare that the federal Crown owes a fiduciary duty to MNSI and MNSI have the right to be consulted by Canada on a collective basis.
This action was approved for funding under the federal government's Test Case Funding Program (TCFP), a program created to fund important Aboriginal-related test cases with the potential to create judicial precedent. However, its progress through the Court appears to have been significantly delayed by Canada's conduct throughout the litigation. This conduct included Canada bringing multiple unsuccessful motions to strike or dismiss the action, alleging that the plaintiffs did not have the standing or authority to bring the action before the court, a lack of material facts or particulars, and the allegation that the plaintiffs' statement of claim was vexatious, prejudicial and abusive (2002 FCT 295 and 2008 FC 823). After Mr. Daniels passed away in 2004, the Court authorized the plaintiffs to replace him with two other individuals (2005 FC 699), a decision that was then unsuccessfully appealed by Canada (2005 FC 1109). The TCFP funding also expired during the course of litigation, which triggered a successful contested motion for advance costs by the plaintiffs (2011 FC 230). The merits of this case were finally heard by Justice Phelan in the summer of 2011.
During the course of litigation Canada also refused to admit that certain documents relied upon by the plaintiffs were in fact government documents. This required the plaintiffs to call a witness capable of identifying the documents in question as government documents. This led Justice Phelan to remark that Canada's position in this respect "was wholly untenable and just a further example of the extent to which the Defendants would proceed in attempts to frustrate this litigation."
The primary issue was whether the plaintiffs were entitled to a declaration that MNSI are "Indians" within the meaning of the expression "Indians and lands reserved for Indians" in s. 91(24) of the Constitution Act, 1867.
The factual record of this case was broad, voluminous, and complex, primarily because there was no evidence available relating to any direct discussion pre- and post-Confederation that would assist in ascertaining the intended meaning and breadth of the s. 91(24) power. The Court was instead forced to rely heavily on the evidence of five historical experts, three of whom were engaged by the plaintiffs and two by Canada. Where the evidence between certain experts conflicted, Justice Phelan tended to prefer that of the plaintiffs' experts.
The Court organized the historical evidence as relating to dealings and discussions with respect to "Indians" before, during, and after Confederation, well into a modern context and over a wide geographic area. The Court later explained that it placed the most reliance on the evidence relating to what was done just before and for some period after Confederation to give context to the inclusion of the s. 91(24) power.
Ultimately, some of the Court's key factual findings in this respect were that the pre-Confederation need for an "Indian" power was based on an understanding that the power needed (and consequently was intended) to be "sufficiently broad" to address the following matters:
- the establishment and maintenance of peaceful relations with native people of all different varieties;
- the payment of one-time cash amounts for the surrender of native interests in land;
- the payment of ongoing annuities;
- the creation and acceptance of surrenders of reserve;
- the recognition, pacification, control and dealing with interest in land of Métis who were seen as distinct in some respects from "Indians", who did not live with Indians, who were not necessarily members of "Indian tribes" or who not necessarily followed an "Indian" way of life.
Citing the Supreme Court's comments in Black v Law Society (Alberta),  1 SCR 591, where the Court held that one object or purpose of Confederation was "the creation of a national economy" and particular emphasis on the evidence that this included the creation of a national railway, Justice Phelan relied on the plaintiffs' expert evidence in holding that the underlying purposes or objects of Confederation most relevant to the inclusion of the s. 91(24) power could generally be described as follows:
- to control native people and communities where necessary to facilitate development of the Dominion.
- to honour the obligations to native people that the Dominion inherited from Britain while extinguishing interests that stood in the way of the objects of Confederation.
- eventually to civilize and assimilate native people.
In examining various events that occurred post-Confederation, the Court concluded that various individuals, including Métis or "half-breeds", were at times included and excluded from Indian status in accordance with changing policy or even offered scrip by the federal government, leading the Court to conclude that such "half-breeds" were considered as closely associated with "Indians" and part of the "problem" to be solved in order to permit expansion, settlement and the building of the railway as contemplated by s. 91(24).
It is notable that the Court placed very little weight on a historically well-known Hansard statement made by Sir John A. Macdonald in 1885 regarding the Manitoba Métis and relied upon by Canada in support of its case for excluding the Métis as "Indians": "... 1,400,000 acres would be quite sufficient for the purpose of compensating these men for what was called the extinguishment of the Indian title. That phrase was an incorrect one, because the half-breeds did not allow themselves to be Indians. If they were Indians they go with the tribe; if they are half-breeds they are whites and they stand in exactly the same relation to the Hudson Bay Company and Canada as if they were altogether white. That was the Principle under which the arrangement was made and the Province of Manitoba was established." Justice Phelan instead placed considerable emphasis on the contradictory context in which that statement was made and available evidence showing a contrary viewpoint both before and after the statement was made.
Some of the other evidence relating to post-Confederation that assisted the Court in discerning the purpose of s. 91(24) were the ongoing activities of federal scrip commissions, the inclusion of "half-breeds" in certain numbered treaties, various discriminatory practices and policies related to residential schools and enfranchisement, and certain amendments made to the Indian Act in the mid-to-late 20th century. When discussing the instances related to treaties and the Indian Act, the Court concluded that "... the federal government chose when and if to exercise its constitutional jurisdiction over this group."
The Court also placed some emphasis on the contents of a 1980 government discussion paper that opined that both non-status and Métis were indeed "Indians" for the purposes of s. 91(24). The Court commented that "[w]hile [the discussion paper] cannot be taken as an "admission" in the usual evidentiary sense, nor can it give jurisdiction where no such jurisdiction existed, it gives great credence to the Plaintiffs' position, buttresses the expert evidence and makes the Defendants' attack and attempts to frustrate this litigation disingenuous ... The federal government's position appears to have been motivated by policy concerns for concrete actions and concerns for the financial consequences of recognizing this jurisdiction."
Citing the Supreme Court's judgment in Canard v Canada (Attorney General),  1 SCR 170 as the starting point of his analysis, Justice Phelan reasoned that the scope of "Indian" must be consistent with the purposes and objects of s. 91(24), which was described as a "racial classification" that would "enable Parliament to make and pass laws applicable only to Indians as such." In Justice Phelan's view, the factual background in this case indeed established that "[t]he single most distinguishing feature of either non-status Indians or Métis is that of 'Indianess', not language, religion or connection to European heritage."
Although Canada urged the Court to apply an interpretive approach that would have led to a narrow interpretation of s. 91(24), Justice Phelan declined to do so, and instead applied the Supreme Court's purposive approach as described in Reference re Same-Sex Marriage, 2004 SCC 79 and reiterated that the Hansard comments made by Sir John A. Macdonald in 1885 should be viewed "with a degree of caution" with regard to all of the circumstances.
Drawing additional guidance from the Supreme Court's decision in Re Eskimo Reference,  SCR 104with respect to the possible breadth of the term "Indian" in s. 91(24), Justice Phelan summarized his holding as follows:
 Applying the purposive approach in light of the finding in Re Eskimo Reference, above, I accept the Plaintiffs' argument supported by the opinions of Professor Wicken and Ms. Jones that the purpose of the Indian Power included the intent to control all people of aboriginal heritage in the new territories of Canada. The purpose of the Indian Power included assisting with the expansion and settlement of the West of which the building of the railway was a part. Absent a broad power over a broad range of people sharing a native hereditary base, the federal government would have difficulty achieving this goal.
Justice Phelan further explained that although the case for inclusion of non-status Indians was perhaps "more direct" than that of the Métis, which was "more complex and more diverse and must be viewed from a broad perspective" he concluded that, on balance, he was satisfied both groups were included as "Indians" for the purposes of s. 91(24).
Although Canada attempted to persuade Justice Phelan not to exercise his discretion to issue the declaration sought by the plaintiffs even if they successfully proved their claim, he declined to do so, commenting that "[i]t is no answer for the Defendants to say that a case such as this cannot be brought because there is no federal legislation against which to assert an action. There is no such legislation because the federal government denies jurisdiction over MNSI. This is a classic Catch-22 situation. It is a situation for which the declaration proceeding is well-suited to resolve."
Consequently, Justice Phelan issued the requested declaration, stating that MNSI are "Indians" within the meaning of s. 91(24) of the Constitution Act, 1867. However, Justice Phelan declined to issue the two further declarations requested by the plaintiffs, namely that the federal Crown owes a fiduciary duty to MNSI and MNSI have the right to be consulted by Canada on a collective basis. The Court reasoned that it would be inappropriate to "make some general statement concerning fiduciary duty" because case law has established that for a fiduciary duty to arise, a specific matter would have to be at issue. Similarly, Justice Phelan opined that it would be inappropriate to make any declaration in respect of Canada's duty to consult or negotiate with MNSI, reasoning that the duty "depends on the subject matter, the strength of the claim and other factors not before the Court." However, the refusal to issue these declarations was without prejudice to the right to seek such relief at a later time and on a proper evidentiary record.
Canada will have 30 days to decide whether it wishes to appeal this decision.
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