What is the impact of the Supreme Court's Daniels decision?

THE SUPREME COURT OF CANADA’S “DANIELS” DECISION

(Daniels v. Canada, 2016-SCC-12, Rendered 14 April 2016)

On April 14, 2016, the Supreme Court of Canada released the Daniels decision. Daniels clarified that the federal government’s jurisdiction under section 91(24) of the Constitution of Canada over “Indians, and Lands reserved for the Indians” includes Métis and non-status Indians.

This is an important decision for all Aboriginal peoples and Government. In the days following the decision, much has been said about the impact of this ruling. Unfortunately, some of this has been misleading or incorrect.

Daniels does not mean that a person who is Métis or is a non-status Indian acquired a right to hunt, fish or harvest wood in Nova Scotia. These rights are not individual rights, they are collective rights.

An individual who believes they have Aboriginal or treaty rights must be part of an Aboriginal group, and their Aboriginal group must show the Province and the federal government it is a distinct rights-bearing Aboriginal collective. The criteria for this has already been established by the Supreme Court, and Daniels reaffirmed this.

The Mi’kmaq of Nova Scotia remain the only Aboriginal group with credibly asserted or established Aboriginal and treaty rights to hunt, fish and gather in Nova Scotia. For everyone else, provincial legislation and regulations continue to apply.

Frequently asked questions:

Q: Does Daniels mean that Métis people and non-Status Indians are now eligible for federal programs and benefits, like education funding or health benefits, in the same way as people who are Status Indians under the Indian Act?

A: Not at the present time. Please refer to the federal Department of Indigenous and Northern Affairs web link for further information regarding the Daniels decision and its application: https://www.aadnc-aandc.gc.ca/eng/1460635873455/1460635946946

Q: Does Daniels mean that Métis people and non-Status Indians can now hunt, fish or harvest on Crown lands in Nova Scotia without obtaining a permit from the Province?

A: No. People who self-identify as Métis must meet a legal test set out in the Supreme Court of Canada’s Powley decision, which defines a rights-bearing Métis group and establishes whether its members have Aboriginal rights to hunt, fish or harvest. In Nova Scotia, the Courts have held that Métis persons do not have an Aboriginal right to hunt or fish, and the Courts have not found that any rights-bearing Métis communities exist in Nova Scotia. There are no Court decisions in Nova Scotia establishing any Aboriginal or treaty rights to hunt, fish or harvest for non-status Indians. However, the Province’s existing policies already allow for hunting and fishing by both status and non-status Indians that are Nova Scotia Mi’kmaq.

Only Mi’kmaw people have Aboriginal and treaty rights to hunt and fish. All other individuals are still required to follow provincial law and regulations concerning hunting, fishing and harvesting in Nova Scotia. If you attempt to hunt, fish or harvest wood outside of provincial legislation and regulations, you may be prosecuted.

Q: Does Daniels mean that Métis people and non-Status Indians no longer have to pay taxes on gas, tobacco or on income earned on a reserve?

A: No. Any taxation exemptions are based on sections of the federal Indian Act and the Income Tax Act, and are only applicable in certain limited circumstances to Aboriginal people who are registered as “Indians” under section 6 of the Indian Act.

Q: Does the decision mean Nova Scotia has a duty to consult with groups of Métis and non-status Indians?

A: No. The Province has a legal duty to consult Aboriginal groups when it considers an action that has the potential to negatively affect a credibly asserted or established Aboriginal or treaty right. Since Aboriginal and treaty rights are collective rights, this duty exists with a recognized Aboriginal collective. In Nova Scotia, groups of self-identified Métis and non-status Indians are not legally recognized rights-bearing Aboriginal collectives.

Q: Does the decision mean Nova Scotia has to enter into treaty negotiations with Métis and non-status Indians?

A: No. Métis groups would have to meet the existing Supreme Court “Powley test” in order to be recognized as having distinct Métis Aboriginal rights in Nova Scotia. To date, courts have found there to be no rights-bearing Métis groups in Nova Scotia. Non-status Indians who are of Mi’kmaq of Nova Scotia descent may be eligible to become part of the Made-In-Nova Scotia process, and they should contact the Assembly of Nova Scotia Mi’kmaq Chiefs’ Kwilmu’kw Maw-klusuaqn Negotiation Office (KMKNO) for more information.

Q: How can I be found to be an Indian under section 91(24) and not have Aboriginal rights like hunting, fishing and collecting wood?

A: This is possible because they are two separate things. Section 91(24) of the Constitution states which level of government in Canada (provincial or federal) can make laws about “Indians and Lands reserved for the Indians”. The Daniels decision states clearly that the federal government is the level of government that can, if it chooses to do so, make laws under section 91(24) for Métis and Non-Status Indians.

The question of who has Aboriginal and treaty rights like hunting and fishing is guided by Section 35 of the Constitution and a different set of court decisions. The Daniels decision confirmed that this law did not change how to determine which Aboriginal groups have Aboriginal and treaty rights.