Canada (Indian Affairs) v. Daniels

Canada (Indian Affairs) v. Daniels
Court (s) Database
Federal Court of Appeal Decisions
Date
2014-04-17
Neutral citation
2014 FCA 101
File numbers
A-49-13
Notes
Reported Decision
Decision Content
Date: 20140417
Docket:
A-49-13
Citation: 2014 FCA 101
CORAM:
NOËL J.A.
DAWSON J.A.
TRUDEL J.A.
BETWEEN:
HER MAJESTY THE QUEEN as represented by THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT and
THE ATTORNEY GENERAL OF CANADA
Appellants
and
HARRY DANIELS, GABRIEL DANIELS,
LEAH GARDNER, TERRY JOUDREY and
THE CONGRESS OF ABORIGINAL PEOPLES
Respondents
and
ATTORNEY GENERAL OF ALBERTA,
MÉTIS SETTLEMENTS GENERAL COUNCIL, GIFT LAKE MÉTIS SETTLEMENT,
MÉTIS NATIONAL COUNCIL,
MANITOBA MÉTIS FEDERATION, and
MÉTIS NATION OF ONTARIO
Interveners
Heard at Ottawa, Ontario, on October 29 and 30, 2013.
Judgment delivered at Ottawa, Ontario, on April 17, 2014.
REASONS FOR JUDGMENT BY: DAWSON J.A.
CONCURRED IN BY: NOËL J.A.
TRUDEL J.A.
Date: 20140417
Docket:
A-49-13
Citation: 2014 FCA 101
CORAM:
NOËL J.A.
DAWSON J.A.
TRUDEL J.A.
BETWEEN:
HER MAJESTY THE QUEEN as represented by THE MINISTER OF INDIAN AFFAIRS AND NORTHERN DEVELOPMENT and
THE ATTORNEY GENERAL OF CANADA
Appellants
and
HARRY DANIELS, GABRIEL DANIELS,
LEAH GARDNER, TERRY JOUDREY and
THE CONGRESS OF ABORIGINAL PEOPLES
Respondents
and
ATTORNEY GENERAL OF ALBERTA,
MÉTIS SETTLEMENTS GENERAL COUNCIL, GIFT LAKE MÉTIS SETTLEMENT,
MÉTIS NATIONAL COUNCIL,
MANITOBA MÉTIS FEDERATION, and
MÉTIS NATION OF ONTARIO
Interveners
REASONS FOR JUDGMENT
Table of Contents (by paragraph numbers)
1. Introduction 1-5
2. Factual Background 6
(i) The respondents 7-9
(ii) The nature of the action below 10-12
3. Issues Raised on the Appeal and Cross-Appeal 13-15
4. Applicable legislation
(i) The Constitution Act, 1867 16
(ii) The Constitution Act, 1982 17
5. Federal Court Decision 18-21
(i) The definitional issue 22-25
(ii) The Judge’s Findings of Fact 26-30
(a) Pre-Confederation Era 31
(b) Confederation 32-37
(c) Post-Confederation Era 38-40
(d) Other Examples – “Half-breeds” and Section 91(24) 41-47
(e) Modern Era 48-49
(f) Treaties and Half-breeds 50-51
(iii) The Judge’s Analysis 52-61
6. Consideration of the Issues
(i) Did the Federal Court err by issuing the declaration in respect of either the Métis or non-status Indians?
(a) Applicable Legal Principles 62-64
(ii) Did the Federal Court err by issuing the declaration in respect of the Métis?
(a) Did the declaration lack practical utility? 65-73
(iii) Did the Federal Court err by issuing the declaration in respect of non-status Indians?
(a) Did the declaration lack practical utility? 74-79
(iv) Is the declaration as it relates to the Métis unfounded in fact and law?
(a) Standard of review 80
(b) The asserted errors 81-82
(c) Did the Judge adopt a definition of Métis that is contrary to
history and the jurisprudence of the Supreme Court? 83-86
Powley, Cunningham and Manitoba Métis Federation 87-111
Blais 112-124
(d) Did the Judge fail to follow the approach to constitutional analysis mandated by the Supreme Court? 125-128
Applicable principles of statutory interpretation 129
The Judge’s approach 130-148
(e) Did the Judge grant a declaration that will create uncertainty
about the respective jurisdiction of Parliament and the provincial legislatures? 149-150
(f) Conclusion as to the validity of the declaration as it relates
to the Métis 151
(v) The cross-appeal: Did the Judge err by refusing to issue the second
and third declarations?
(a) The standard of review 152
(b) The asserted errors 153-155
(c) Did the Judge err in refusing the second and third
declarations? 156-158
7. Conclusion and costs 159-161
DAWSON J.A.
1. Introduction
[1] The issue raised in this appeal is whether the federal government has jurisdiction over Métis and non-status Indians pursuant to section 91(24) of the Constitution Act, 1867. For reasons reported as 2013 FC 6, [2013] 2 F.C.R. 268, a judge of the Federal Court 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.”
[2] In this appeal, the Crown appellants ask that the declaration be set aside. This position is supported by the Attorney General of Alberta, an intervener. The respondents, who were the plaintiffs below, ask that the appeal be dismissed with costs. As well, the respondents cross-appeal from the decision of the Federal Court not to grant two additional declarations sought by them at trial. The respondents ask that the following two declarations be granted:
(i) The Crown in right of Canada owes a fiduciary duty to Métis and non-status Indians as Aboriginal peoples (second declaration).
(ii) 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 peoples (third declaration).
[3] The respondents’ position with respect to the appeal and cross-appeal is supported by two interveners: the Métis Settlements General Council and the Métis National Council. The intervener Gift Lake Métis Settlement asks that both the appeal and the cross-appeal be dismissed. The intervener the Manitoba Métis Federation asks that the appeal be dismissed, but that the Judge’s declaration be restated to separate reference to non-status Indians from the declaration. It would restate the declaration as follows: “The Court declares that the Métis are included as ‘Indians’ within the meaning of s. 91(24) of the Constitution Act, 1867.” The intervener the Métis Nation of Ontario asks that the appeal be dismissed and that the Court decline to define the Métis other than to say that the individuals included as Métis within section 91(24) are the members of the Métis peoples of Canada.
[4] The appellants and the Attorney General of Alberta also ask that the cross-appeal be dismissed.
[5] For the reasons that follow, I would allow the appeal in part by deleting reference in the declaration to non-status Indians and would restate the declaration as proposed by the Manitoba Métis Federation. I would dismiss the cross-appeal, reserving the issue of the costs of the appeal and cross-appeal between the appellants and respondents.
2. Factual Background
[6] The facts are carefully and extensively reviewed in the reasons of the Federal Court. The following brief review is sufficient to situate the appeal and the cross-appeal in their context.
(i) The respondents
[7] The four individual respondents are, or were, closely connected to their Aboriginal cultures.
[8] The late Harry Daniels identified as Métis and was a president of the Congress of Aboriginal Peoples. He was a recognized advocate for Métis rights. Gabriel Daniels is his son, and he also identifies as Métis. He testified as to his Métis cultural roots, his involvement in Métis gatherings and his long involvement in First Nations’ activities. Leah Gardner is a non-status Indian from Ontario. She identifies as a Métis without status, but prefers “Anishanabe without status”. She testified that she participates in both Métis and First Nation cultural events. Terry Joudrey is a non-status Mi’kmaq Indian from Nova Scotia. He testified he uses his Aboriginal Treaty Rights Association membership card as if it were a licence to hunt and fish, and that he associates those activities with native traditions. All of the individual respondents sued in the Federal Court in their personal capacities.
[9] The respondent Congress of Aboriginal Peoples is a corporation which represents Métis and non-status Indian peoples throughout Canada. As the trial judge noted, it is not the sole recognized voice of the Métis peoples. The Congress of Aboriginal Peoples sued as a public interest plaintiff.
(ii) The nature of the action below
[10] In their claim, the respondents did not challenge any specific legislation or government action. Rather, they sought resolution of the issue as to which of Canada or the provinces have jurisdiction over the Métis and non-status Indian peoples.
[11] The respondents asserted, and the Judge accepted (reasons, paragraphs 86 to 110) that provincial and federal governments treat the Métis as “political footballs”. The Judge found that “the political/policy wrangling between the federal and provincial governments has produced a large population of collaterally damaged [Métis and non-status Indians]”. He further found that, as a result, Métis and non-status Indians have been deprived of programs, services and intangible benefits all governments recognize are needed (reasons, paragraph 108).
[12] The Judge concluded that the resolution of constitutional responsibility “has the potential to bring clarity to the respective responsibilities of the different levels of government” (reasons, paragraph 110).
3. Issues Raised on the Appeal and Cross-Appeal
[13] In the appeal, the appellants do not allege that the Judge committed any palpable and overriding error in his numerous findings of fact. They assert three errors of law:
1. The Judge erred in law by granting a declaration that lacked any practical utility.
2. The Judge erred because the declaration is unfounded in fact and law.
3. The Judge erred by attempting to define the core meaning of the constitutional term “Indian” in the abstract.
[14] In the cross-appeal, the respondents assert that the Judge erred in principle by failing to grant the second and third declarations.
[15] I would frame the issues to be decided as follows:
1. Did the Federal Court err by issuing the declaration in respect of the Métis?
2. Did the Federal Court err by issuing the declaration in respect of non-status Indians?
3. Is the declaration as it relates to the Métis unfounded in fact and law?
4. Did the Federal Court err by failing to issue the second and third declarations?
4. Applicable legislation
(i) The Constitution Act, 1867
[16] This is a division of powers case about the interpretation of section 91(24) of the Constitution Act, 1867:
91. It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say,
[…]
24. Indians and Lands reserved for the Indians.
91. Il sera loisible à la Reine, de l’avis et du consentement du Sénat et de la Chambre des Communes, de faire des lois pour la paix, l’ordre et le bon gouvernement du Canada, relativement à toutes les matières ne tombant pas dans les catégories de sujets par la présente loi exclusivement assignés aux législatures des provinces; mais, pour plus de garantie, sans toutefois restreindre la généralité des termes ci-haut employés dans le présent article, il est par la présente déclaré que (nonobstant toute disposition contraire énoncée dans la présente loi) l’autorité législative exclusive du parlement du Canada s’étend à toutes les matières tombant dans les catégories de sujets ci-dessous énumérés, savoir :
[…]
24. Les Indiens et les terres réservées pour les Indiens.
(ii) The Constitution Act, 1982
[17] Although not directly at issue, section 35 of the Constitution Act, 1982 entrenches the existing Aboriginal and treaty rights of Aboriginal peoples. It is, therefore, a useful interpretative aid:
35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
(2) In this Act, “aboriginal peoples of Canada” includes the Indian, Inuit and Métis peoples of Canada.
35. (1) Les droits existants — ancestraux ou issus de traités — des peuples autochtones du Canada sont reconnus et confirmés.
(2) Dans la présente loi, « peuples autochtones du Canada » s’entend notamment des Indiens, des Inuit et des Métis du Canada.
5. Federal Court Decision
[18] The Judge began his reasons by framing the issue as whether non-status Indians and Métis are identified as “Indians” under section 91(24) of the Constitution Act, 1867. He then went on to set out the applicable legislation, describe the declarations sought by the plaintiffs, and summarize the basis of the plaintiffs’ claim and the defendants’ defence. After giving a summary of his conclusions the Judge turned to the first issue to be decided.
[19] The first issue to be decided was whether the plaintiffs had established a basis on which declaratory relief could be granted. The defendants argued that the requested declarations should not be granted because the plaintiffs raised a theoretical issue which, if decided, would not resolve anything and would lead to further litigation. The Court was urged not to exercise its discretion to grant any of the requested declarations.
[20] The Judge found that the record was replete with references to the jurisdictional uncertainty between Canada and the provinces over which level of government had jurisdiction to legislate with respect to Métis and non-status Indians. Canada had sometimes accepted, but sometimes rejected, the view that it had jurisdiction under section 91(24) (reasons, paragraph 55). The Judge concluded that the Court had jurisdiction over the case, the question before the Court was real and the persons raising the issue had a real interest to raise it (reasons, paragraph 82). Thus, the Judge decided that he would determine the case on its merits. He would not dismiss the action on the basis of the discretionary nature of declaratory relief. The Judge also rejected the defendants’ argument that the plaintiffs’ case was a private reference which should not be heard. The Judge highlighted the prejudice both the plaintiffs and the defendants would suffer if 12 years of publicly funded litigation was dismissed without adjudication on the merits (reasons, paragraphs 77 to 80).
[21] Having decided to determine the case on its merits it was necessary for the Judge to decide what was meant by the terms “non-status Indians” and “Métis” for the purpose of the division of powers analysis.
(i) The definitional issue
[22] The Judge began his analysis of the definitional issue by considering what was meant by the term “non-status Indians”. At paragraph 116 of his reasons he noted that non-status Indians as a group must have two essential qualities: they must be Indians and have no status under the Indian Act, R.S.C. 1985, c. I-5. He considered that in the modern era the difficulty of definition had been addressed in part because in 1980 the federal government defined the core group of Métis and non-status Indians as a group of native people who maintained a strong affinity for their Indian heritage without possessing Indian status (reasons, paragraph 117). Ultimately, the Judge concluded that the group of people characterized as “non-status Indians” are “those to whom status could be granted by federal legislation. They would be people who had ancestral connection not necessarily genetic to those considered as ‘Indians’ either in law or fact or any person who self-identifies as an Indian and is accepted as such by the Indian community, or a locally organized community, branch or council of an Indian association or organization [with] which that person wishes to be associated” (reasons, paragraph 122).
[23] The Judge next considered what was meant by the term “Métis”. He noted that in R. v Powley, 2003 SCC 43, [2003] 2 S.C.R. 207 the Supreme Court did not attempt to define the outer limits of the Métis people but instead set out a method for determining who is a member of the Métis people for the purpose of section 35 of the Constitution Act, 1982. The Supreme Court determined that a Métis is a person of mixed Aboriginal and non-Aboriginal ancestry who has some ancestral family connection (not necessarily genetic), identifies himself or herself as Métis, and is accepted by the Métis community or locally organized community branch, chapter or council of a Métis Association or organization with which that person wishes to be associated. The Judge was concerned, however, that the decision in Powley involved the collective right to hunt. In the Judge’s view this made it critical that an individual be accepted by the Métis community. For the purpose of section 91(24), the Judge sought to capture the situation where there is no such community branch, chapter or council but an individual nonetheless participates in Métis cultural events or activities which show objectively how that person subjectively identifies himself or herself as a Métis (reasons, paragraphs 127, 128).
[24] In the result, for the purpose of the declarations which the plaintiffs sought, the Judge decided that the Métis are “a group of native people who maintained a strong affinity for their Indian heritage without possessing Indian status” (reasons, paragraphs 130 and 117).
[25] In the Judge’s view these definitions did not decide the “outer limits” of Métis or non-status Indian peoples. They simply established a framework for inclusion under section 91(24) (reasons, paragraph 121).
(ii) The Judge’s Findings of Fact
[26] The remainder of the Court’s decision dealt with whether Métis and non-status Indians, as defined by the Judge, were “Indians” for the purpose of section 91(24) of the Constitution Act, 1867. To do this, the Judge considered the evidence adduced from expert historical witnesses and witnesses knowledgeable about Aboriginal-governmental affairs.
[27] The main historical experts were Dr. William Wicken and Ms. Gwynneth Jones, both called by the plaintiffs, and Dr. Stephen Patterson, called by the defendants. All were found by the Judge to be credible, well-informed and helpful. However, where Dr. Wicken’s evidence conflicted with that of Dr. Patterson, Dr. Wicken’s evidence was “generally accepted” as being more relevant to the issue to be determined (reasons, paragraph 150). Mr. Sébastien Grammond, called by the plaintiffs, and Dr. Alexander von Gernet, called by the defendants, were also called as expert witnesses, but the Judge found their testimony to be less helpful, particularly that of Dr. von Gernet whose evidence was given “considerably less weight […] where it contradict[ed] other experts” (reasons, paragraph 182).
[28] With respect to Aboriginal-governmental affairs, the Judge primarily looked to the evidence of Mr. Ian Cowie who held a senior federal government position at the Department of Indian Affairs and Northern Development, and was also a former Deputy Minister of Indian and Native Affairs for Saskatchewan, and Dr. John Leslie, a former manager of the Claims and Historical Research Center at the Department of Indian Affairs and Northern Development (both witnesses were called by the plaintiffs). Their evidence was found to be helpful and credible with Mr. Cowie providing an insider’s view of modern native rights policy development, and Dr. Leslie acting as a “business records identifier” a role the Judge noted would not have been necessary if the defendants had admitted the provenance of a number of relevant documents (reasons, paragraph 138).
[29] The Judge divided the historical evidence into six categories which he described as:
(a) Pre-Confederation Era
(b) Confederation
(c) Post-Confederation Era
(d) Other Examples – “Half-breeds” and section 91(24)
(e) Modern Era
(f) Treaties and Half-breeds
[30] The Judge’s significant findings made in respect of each category are summarized below.
(a) Pre-Confederation Era
[31] Evidence from this era was directed to what the term “Indian” meant at the time and therefore was likely the meaning that the Fathers of Confederation had in mind when power over Indians was assigned to the federal government (reasons, paragraph 183). The Judge found as a fact that:
(i) The experts treated the situation of the Mi’kmaq in Nova Scotia as being representative of the situation generally in Atlantic Canada (reasons, paragraph 211).
(ii) At least by 1864, most of the Mi’kmaq population was of mixed blood of varying degrees (reasons, paragraph 216).
(iii) Notwithstanding their mixed blood component, the Mi’kmaq were treated as “Indians” and their preference to “wander” had an impact on the creation of the federal Indian Power (reasons, paragraph 219).
(iv) There was a diversity of people in Atlantic Canada with varying degrees of Aboriginal connections who were contemplated by the word “Indian” (reasons, paragraph 218).
(v) Those seeking a power in relation to “Indians” would have needed a broad power (reasons, paragraphs 253 and 323) which included authority over relocation, settlement, assistance, education, economic reform, social reform and “civilization” (reasons, paragraphs 262 and 323).
(vi) Prior to Confederation, the term “Indian” was understood by the Fathers of Confederation to include “half-breeds” (reasons, paragraphs 265 and 287) and one did not have to live on a reserve or in an Indian community to be an “Indian” (reasons, paragraphs 272 and 323).
(vii) The Fathers of Confederation would have intended the word “Indian” in the Constitution and the power which went with it, to be a broad power capable of dealing with the diversity and complexity of the native population, whatever their percentage mix of blood relationship, their economies, residency or culture (reasons, paragraphs 273, 308, 318, and 323).
(viii) Canada, when acquiring the British power over Indian Affairs would need to be able to, and intended to, address a number of issues including the recognition, pacification, control and dealing with interest in the 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 did not necessarily follow an “Indian” way of life (reasons, paragraph 317).
(ix) The Fathers of Confederation intended to create a constitutional power which was broader than the statutory definition of Indian (reasons, paragraphs 322 and 323).
(b) Confederation
[32] The Judge found as a fact that the purposes of Confederation relevant to this case are (reasons, paragraph 341):
(i) The expansion of British North America into the Northwest and towards British Columbia in response to the pre-Confederation economic and political crisis.
(ii) The eventual absorption of the Northwest and British Colombia into Confederation.
(iii) Integration of the Atlantic colonies (Nova Scotia, New Brunswick, Prince Edward Island and Newfoundland) with Central Canada. The intent to absorb Newfoundland, Prince Edward Island and British Columbia as well as Rupert’s Land and the Northwest Territories is seen in section 146 of the British North America Act, 1867.
(iv) To settle the Northwest with farms which would become a new market for Central Canada manufacturing.
(v) The maintenance in the East of the current population and the prevention of out-migration.
(vi) The settlement of British Columbia, particularly Vancouver Island and the Lower Mainland.
(vii) The building of a transcontinental railway which was essential to creating a national economy and to settling the unsettled areas, particularly the Northwest.
[33] The building of the transcontinental railway was particularly integral to the Fathers’ of Confederation intentions at the time of Confederation (reasons, paragraph 342).
[34] Finally, the Judge found (reasons, paragraph 351) that:
(i) In the Northwest in particular, a large nomadic native population potentially stood in the way of expansion, settlement and railway construction.
(ii) The relationship between the purpose of Confederation (in terms of settlement and expansion) and the native people was critical to Confederation.
(iii) The idea of railway construction and federal responsibility for “Indians” were interconnected.
(iv) The Fathers of Confederation needed to be able to reconcile native people to the building of the railway and other measures which the federal government would have to take.
(v) Maintaining peaceful relations with the “Indians” would protect the railway from attack.
(vi) Natives needed to be reconciled with the expansion westward to ensure the larger development of the nation.
(vii) The lands occupied by natives would have to be surrendered in some fashion.
[35] The Judge went on to accept the evidence of the plaintiffs’ expert historians on the purposes of section 91(24) from the viewpoint of those creating the power (reasons, paragraph 354).
[36] In Dr. Wicken’s view, the purpose of section 91(24) was:
(i) To control native people and communities where necessary to facilitate development of the Dominion.
(ii) To honour the obligations to natives that the Dominion inherited from Britain while extinguishing interests that stood in the way of the objects of Confederation.
(iii) Eventually to “civilize” and assimilate native people (reasons, paragraph 353).
[37] In Ms. Jones’ view, the purpose of section 91(24) was integral to the central government’s plan to develop and settle lands in the North-Western Territory. The Canadian Government at Confederation inherited principles and practices of Crown-Aboriginal relations that had been embedded in British North America for well over 100 years. These included the recognition of Aboriginal title in the “Indian territories” and protocols recognizing the relationship between Aboriginal nations and the Crown. Canada also inherited a British policy of “civilization” of the Indians, in place since the 1830s (reasons, paragraph 353).
(c) Post-Confederation Era
[38] The Judge found that it was critical to the newly confederated Canada to create an environment of safety and security for settlers. Part of creating that environment was the extinguishment of Indian land claims; Canada required possession of lands for the construction of the transcontinental railway and also for the settlement and development of the West (reasons, paragraph 359).
[39] The Judge also found that the Aboriginal population was mixed, varied and interrelated. It was not possible to draw a bright line between half-breeds/Métis and Indians (reasons, paragraph 381). Immediately post-Confederation, persons referred to as half-breeds were considered to be closely associated with “Indians” and part of the problem that needed to be addressed to permit expansion, settlement and the building of the railway, all as contemplated by the British North America Act, 1867 (reasons, paragraph 412).
[40] Ultimately, the Judge concluded that the early post-1867 evidence established that half-breeds were considered to be at least a subset of a wider group of Aboriginal-based people called “Indians”. What the evidence showed was that Canada was prepared to exercise jurisdiction over half-breeds, to use Indian power like methods and to justify such exercises of jurisdiction as the exercise of the section 91(24) power coupled with the power to control Dominion lands (reasons, paragraph 420).
(d) Other Examples - “Half-breeds” and Section 91(24)
[41] Under this heading the Court looked to a number of post-Confederation events that connected the Métis to section 91(24).
[42] The Judge began by considering the request, made prior to the Treaty 3 negotiations, that 15 families of half-breeds living on the Rainy River be included in the treaty. Thereafter, the Indian Act, 1876 was passed and the Indian Affairs branch took the position that the department could not “recognize separate Half breeds bands”. As a result, the Rainy River half-breeds were given a reserve, but were required to join a First Nations band for which an adjacent reserve had been surveyed. The Judge found that this adhesion to Treaty 3 was an instance where the federal government treated the half-breeds/Métis group as if it had a claim to Indian title, and gave the group a reserve as part of the surrender of that claim. It was a further instance of the federal government exercising jurisdiction over a Métis group based not on their connection to European ancestors, but on their connection to their Indian ancestry (reasons, paragraphs 424, 430, and 434).
[43] The Judge next considered the petition made in 1895 by Father Lacombe to the federal government that destitute “Half-breeds” receive land on which to settle. A reserve was proposed, consisting of four townships to be established, together with an industrial school. The proposal was approved, and a reserve and industrial school were established at St. Paul de Métis in Alberta. The reserve was established exclusively for Métis; title to the reserve was held by the federal Crown. The Judge found that this project was not a policy accident. Rather, it was the use of powers similar to or arising from those exercised in regard to “Indians” under section 91(24) (reasons, paragraphs 437, 439, and 441).
[44] Next, the Judge considered federal liquor policy. In 1894, Parliament amended the Indian Act to broaden the specific provision dealing with persons who sold intoxicating liquor to an “Indian”. The problem Parliament sought to resolve was the difficulty encountered by the North-West Mounted Police in distinguishing between “Half-breeds and Indians in prosecutions for giving liquor to the latter”. The provision against the sale of intoxicating liquor was amended by adding “… shall extend to and include any person … who follows the Indian mode of life”. The Judge found this policy again confirmed that the federal government exercised jurisdiction over Métis and non-status Indians regardless of mixed ancestry, residence, membership or purported membership in a band or tribe (reasons, paragraphs 444, 446, 447, and 451).
[45] The 1958 amendment to the Indian Act, dealing with “half-breeds” whose ancestors took scrip was found by the Judge to be another example of federal legislation affecting Métis as a group or class which was founded on section 91(24) (reasons, paragraphs 453, 454, 457, and 458).
[46] Finally, the Judge accepted numerous examples of the federal government exercising jurisdiction over a broad range of persons with native ancestry, notwithstanding their lack of status under the Indian Act. One example the Court referenced was “red ticket Indians” who were excluded from the Indian Act in 1951 and later readmitted in 1985. Another example was the inclusion in 1984 of Aboriginal persons under the Indian Act who had been enfranchised (and therefore not given status) when Newfoundland and Labrador joined Confederation (reasons, paragraphs 460, 461 and 466 to 467).
[47] The Judge found that this exercise of jurisdiction over non-status Indians and half-breeds, including Métis was based upon the understanding and acceptance by the Euro-Canadian population that the federal power could exercise jurisdiction over this wide range of people as “Indians”. In the Judge’s words, the “foregoing, established by conduct, the meaning of ‘Indian’ within s 91(24)” (reasons, paragraph 468).
(e) Modern Era
[48] The Court’s overview of Modern Era evidence primarily involved examining government documents which set out various positions as to whether section 91(24) extended to Métis and non-status Indians. The Judge cautioned, however, that this evidence was of less relevance because his determination of the meaning and scope of section 91(24) was based principally on the analysis of pre- and post-Confederation facts and the manner in which the federal government dealt with Métis and non-status Indians (reasons, paragraph 470).
[49] Based on his review of the evidence the Judge concluded that post-patriation of the Constitution, the trend was for the federal government to generally accept that it had power to legislate in all domains in respect of Métis and non-status Indians under section 91(24) of the Constitution Act, 1867 (reasons, paragraphs 492 and 493). The government’s position hardened in or about 1984, and its position became that section 91(24) did not confer jurisdiction to legislate in respect of Métis and non-status Indians (reasons, paragraphs 501 and 507). Despite this position, the government continued to move certain Aboriginal people in and out of Indian status, in apparent recognition and exercise of its jurisdiction under section 91(24) (reasons, paragraph 512).
(f) Treaties and Half-breeds
[50] The last historical evidence related to the admission by both parties that half-breeds were from time to time either offered treaty protection in lieu of land grants, or were moved in and out of treaty for various reasons. In the Judge’s view, the importance of this evidence was that receiving treaty protection and benefits is directly related to being an “Indian” for purposes of the Constitution. Treaties are not made or implemented with other groups in Canadian society (reasons, paragraph 513).
[51] Ultimately, the Judge found that the weight of the evidence was that Métis were both included and excluded from recognized Indian status in accordance with changing government policies. The Judge further concluded that the federal government adopted these flexible policies because it could and that “it was assumed, implied and accepted that the federal government could do so because Métis were ‘Indians’ under s 91(24)” (reasons, paragraph 525).
(iii) The Judge’s Analysis
[52] Relying upon Reference re Same-Sex Marriage, 2004 SCC 79, [2004] 3 S.C.R. 698, the Judge found that the purposive approach (which the Judge referred to as the “living tree” doctrine) provided the correct approach to interpreting section 91(24) (reasons, paragraph 538).
[53] Applying the purposive approach in the light of the decision in Reference re: British North America Act, 1867 (U.K.), s. 91, [1939] S.C.R. 104 (Re Eskimo Reference), the Judge accepted that the purposes of the Indian Power included:
• The intent to control all people of Aboriginal heritage in the new territories of Canada.
• Assisting with the expansion and settlement of the West, including the construction of the transcontinental railway.
[54] Absent a broad power over a broad range of people sharing a native hereditary base, the federal government would have had difficulty accomplishing the expansion and settlement of the West (reasons, paragraph 566).
[55] Relying upon Canard v. Canada (Attorney General), [1976] 1 S.C.R. 170, 52 D.L.R. (3d) 548 at page 207 of the Supreme Court Reports, the Judge viewed section 91(24) as a race-based power (reasons, paragraph 568); both non-status Indians and Métis were found to be connected to the racial classification Indian by way of marriage, filiation and most clearly, intermarriage (reasons, paragraph 531). In the Judge’s further view, the single most distinguishing feature of non-status Indians and Métis is that of their “Indianness” not language, religion or connection to European heritage (reasons, paragraph 532).
[56] The Judge then distinguished R. v. Blais, 2003 SCC 44, [2003] 2 S.C.R. 236 on the ground that in its decision the Supreme Court expressly left open for another day the question of whether the term “Indians” in section 91(24) includes the Métis (reasons, paragraphs 573 to 574). The Judge also found that the decision in Blais was limited in Reference Re Same Sex Marriage, above, as a decision based on a constitutional agreement and not a head of power, which involves different considerations and interpretative principles: in particular, a purposive, progressive approach (reasons, paragraph 578).
[57] Finally, the Judge rejected the defendants’ argument that the Métis could not be included within section 91(24) because they were separately enumerated in section 35 of the Constitution Act, 1982. The Judge concluded that while Inuit are also separately enumerated in section 35, there was no reason to believe that Re Eskimo Reference was no longer sound law. Further, in the Judge’s view the Supreme Court’s recent decision in Alberta (Aboriginal Affairs and Northern Development) v. Cunningham, 2011 SCC 37, [2011] 2 S.C.R. 670 supported the distinction between section 91(24) and section 35 (reasons, paragraphs 593 to 598).
[58] Ultimately the Judge concluded that the “case for inclusion of non-status Indians in s 91(24) is more direct and clear than in respect of Métis. The situation of the Métis is more complex and more diverse and must be viewed from a broad perspective. On balance, the Court also concludes that Métis are included in s 91(24)” (reasons, paragraph 600). As a result, the plaintiffs were granted a declaration to that effect.
[59] The Judge then went on to consider the second and third declarations sought by the plaintiffs.
[60] In respect of the declaration that the federal Crown owed a fiduciary duty to the Métis and non-status Indians, the Judge noted that there was no dispute that the Crown is in a fiduciary relationship with Aboriginal people pursuant to section 35 of the Constitution Act, 1982. This duty also flowed from the declaration that Métis and non-status Indians are “Indians” within section 91(24), because such relationships engage the honour of the Crown. However, the Judge noted that not every aspect of a fiduciary relationship results in a fiduciary duty. It was problematic that the declaration sought by the plaintiffs was made without reference to what duty was breached. In the absence of such specification, the second declaration would have no utility, and the Judge was not prepared to make a general statement about fiduciary duties. Thus, the Judge refused to grant the second declaration (reasons, paragraphs 602 to 609).
[61] Finally, the Judge also found insufficient context to make any declaration on Canada’s duty to negotiate and consult with the Métis and non-status Indians. Without reference to a specific matter to be consulted on, or negotiated with, the Judge concluded that a general declaration would be abstract and not useful. Thus, the third declaration was also refused (reasons, paragraphs 610 to 617).
6. Consideration of the Issues
(i) Did the Federal Court err by issuing the declaration in respect of either the Métis or non-status Indians?
(a) Applicable Legal Principles
[62] Declaratory relief is a discretionary remedy (Solosky v. Her Majesty The Queen, [1980] 1 S.C.R. 821 at pages 832 to 833). The test for appellate review of judicial discretion is whether the judge at first instance gave sufficient weight to all of the relevant considerations (MiningWatch Canada v. Canada (Fisheries and Oceans), 2010 SCC 2, [2010] 1 S.C.R. 6 at paragraph 43).
[63] In exercising its discretion, a court is to be influenced by two factors: the utility of the remedy, if granted, and whether the declaration will settle a real issue between the parties (Solosky, at page 832).
[64] To obtain declaratory relief a party must establish:
i) The Court has jurisdiction over the issue.
ii) The question before the Court is real and not theoretical.
iii) The party has a genuine interest to raise the question.
(Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44 at paragraph 46).
(ii) Did the Federal Court err by issuing the declaration in respect of the Métis?
(a) Did the declaration lack practical utility?
[65] The appellants argue that the declaration lacks practical utility because:
It does not relate to the constitutionality of actual or proposed legislation. It does not settle the issue of constitutional responsibility because section 91(24) does not create responsibilities or obligations to legislate, nor does it compel the federal government to pr