Daniels v CANADA

[17]                          There is no consensus on who is considered Métis or a non-status Indian, nor need there be. Cultural and ethnic labels do not lend themselves to neat boundaries. ‘Métis’ can refer to the historic Métis community in Manitoba’s Red River Settlement or it can be used as a general term for anyone with mixed European and Aboriginal heritage. Some mixed-ancestry communities identify as Métis, others as Indian:

     There is no one exclusive Metis People in Canada, anymore than there is no one exclusive Indian people in Canada. The Metis of eastern Canada and northern Canada are as distinct from Red River Metis as any two peoples can be. . . . As early as 1650, a distinct Metis community developed in LeHeve [sic], Nova Scotia, separate from Acadians and Micmac Indians. All Metis are aboriginal people. All have Indian ancestry.

(R. E. Gaffney, G. P. Gould and A. J. Semple, Broken Promises: The Aboriginal Constitutional Conferences (1984), at p. 62, quoted in Catherine Bell, “Who Are The Metis People in Section 35(2)?” (1991), 29 Alta. L. Rev. 351, at p. 356.)

[18]                          The definitional contours of ‘non-status Indian’ are also imprecise. Status Indians are those who are recognized by the federal government as registered under the Indian Act, R.S.C. 1985, c. I-5 . Non-status Indians, on the other hand, can refer to Indians who no longer have status under the Indian Act , or to members of mixed communities who have never been recognized as Indians by the federal government. Some closely identify with their Indian heritage, while others feel that the term Métis is more reflective of their mixed origins.

[19]                          These definitional ambiguities do not preclude a determination into whether the two groups, however they are defined, are within the scope of s. 91(24) . I agree with the trial judge and Federal Court of Appeal that the historical, philosophical, and linguistic contexts establish that “Indians” in s. 91(24)  includes all Aboriginal peoples, including non-status Indians and Métis.