The Federal Court of Appeal (“FCA”) upheld a declaration issued by Justice Phelan of the Federal Court that Métis are included in the meaning of the term “Indian” bringing them within the scope of s. 91(24) of the Constitution Act, 1867.  The FCA did not uphold the same declaration issued by Justice Phelan in relation to non-status Indians. The decision of Justice Phelan of the Federal Court of Canada was released on 8 January  2013 and reported at 2013 FC 6 (CanLII), 2013 FC 6, [2013] 2 F.C.R. 268.

Justice Phelan, at the Federal Court level, declared that “those persons who are Métis and those who are non-status Indians as set forth in the Reasons for Judgment are ‘Indians’ within the meaning of the expression ‘Indians’, and Lands reserved for the ‘Indians’ contained in s. 91(24) of the Constitution Act, 1867

The Appellant, the Federal Government of Canada (“Canada”) appealed and sought to set aside this declaration.

The Plaintiffs (now respondents), who are individual Métis and non-status Indians (“Daniels”), cross-appealed and sought the two declarations that the Federal Court did not grant at trial, namely:

  1. The Crown in right of Canada owes a fiduciary duty to Métis and non-status Indians as Aboriginal peoples; and
  2. The Métis and non-status Indian peoples of Canada have 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 their rights, interests and needs as Aboriginal people.

With respect to applicable test, the FCA stated that declaratory relief is a discretionary remedy and the test to be applied on appeal is, “whether the Judge gave sufficient weight to all of the relevant considerations”.

In upholding the declaration in respect to the Métis but not the non-status Indians, the FCA distinguished between Métis people and non-status Indians. The FCA stated that the Métis are a distinct Aboriginal people, while non-status Indians are Indians without status under the Indian Act (those to whom status could be granted by federal legislation). The FCA stated:

Parliament’s authority to grant or withhold Indian status arises from section 91(24) (Canard, at page 207 of the Supreme Court Reports). In order for Parliament to grant status under the Indian Act, the person receiving status must be an Indian under the Constitution [...] Therefore, if Parliament can grant status to a person under section 91(24), that person is necessarily an “Indian” within the meaning of that section. In the result, a declaration that non-status Indians who could be granted status through section 91(24) are Indians for the purpose of that section is redundant and lacks practical utility (emphasis added).

In other words, non-status Indians are those that the federal government has jurisdiction over. Parliament's choice to exclude them from legislation is an exercise of that jurisdiction and implies that non-status Indians are "Indians" within the meaning of s. 91(24) of the Constitution Act, 1867.

The FCA found that Justice Phelan failed to give adequate consideration to relevant factors that would have indicated that the declaration in respect to non-status Indians lacked practical utility. The declaration served no purpose in solving issues between non-status Indians and the federal government.

Further, the FCA elaborated that it would be inappropriate for a declaration to clarify the outer limits of who may be considered an Indian, notwithstanding their exclusion from the Indian Act. The factors contributing to the decision of who is excluded from Indian status are complex and far-ranging and the validity of any particular exclusion depends on the reason for that exclusion and must be assessed on a case-by-case basis. The FCA stated that it follows that "non-status Indians as a group do not lend themselves to the declaration of general application."

In contrast, the declaration regarding the Métis people was found to have practical utility. The FCA examined Justice Phelan's definition of the Métis people, which states that they are a “group of native people who maintained a strong affinity for their Indian heritage without possessing Indian status. Their ‘Indianness’ was based on self-identification and group recognition.” Canada argued that this definition is problematic. The Supreme Court of Canada had previously defined the Métis as a distinct Aboriginal people, which differs from their “Indian forebearers” and thus to define the Métis in relation to their “Indianness” is inconsistent.

In interpreting the term Indian as inclusive of Metis, Justice Phelan of the Federal Court relied on the way the term Indian was understood and used by the Fathers of Confederation pre and post-confederation; "Indian" included “half-breeds”. The primary post-confederation, example is the enactment of and amendments to the Indian Act, 1876 - an instance of the federal government exercising jurisdiction over the Métis people based on their connection to their "Indian" ancestry. Justice Phelan also cited examples of treaty protection offered to Métis, which in his view was directly related to being "Indian". Ultimately, the inclusion of the Métis in the meaning of "Indian" was based on evidence of both inclusion and exclusion from recognized Indian status based on changing policies (and financial concerns) of the federal government. In coming to this conclusion, Justice Phelan took a purposive approach of s. 91(24) of the Constitution Act, 1867.

While the FCA admitted that the definition is indeed problematic, it interprets Justice Phelan’s definition as intending to equate “Indian heritage” with indigenousness or Aboriginal heritage rather than a race based distinction. Thus, the FCA argued that Justice Phelan had considered the Métis to be “a group of native or Aboriginal people who maintain a strong affinity for their Aboriginal heritage or indigenousness without possessing Indian status” As a result, the FCA rejected Canada’s assertion that the definition was contrary to history or past decisions of the Supreme Court of Canada, including Powley, Cunningham, or Manitoba Métis Federation. The FCA found Justice Phelan's definition to be in line with the three indicia of Métis identity established in Powley: self-identification, ancestral connection and community acceptance. Moreover, the FCA determined it was not necessary to exhaustively define the Métis people in order to determine if they fell within the scope of s. 91(24) of the Constitution Act, 1867.

Consistent with prior jurisprudence, the FCA upheld the declaration that the Métis people fall within the meaning of "Indian". The FCA did not uphold the declaration in regards to non-status Indians because it lacked practical utility.  With respect to the cross-appeal, the FCA held Justice Phelan made no errors in refusing to grant the two declarations sought by Daniels.

Therefore, the FCA allowed the Appeal in part by deleting reference in the declaration to non-status Indians and restated the declaration as follows: The Court declares that the Métis are included as “Indians” within the meaning of section 91(24) of the Constitution Act, 1867. Further, the FCA dismissed the cross-appeal.


Other Author

Isabella Mentina


Aboriginal Law