Identity and Federalism: Understanding the Implications of Daniels v. Canada

“As the curtain opens wider and wider on the history of Canada’s relationship with its Indigenous peoples, inequities are increasingly revealed and remedies urgently sought” … “This case represents another chapter in the pursuit of reconciliation and redress in that relationship”. With these words Justice Abella set the tone of Daniels v. Canada (Indian Affairs and Northern Development) (“Daniels”); a decision that restates settled law, reframes core elements of Indigenous identity, and contributes to the recent resetting of the framework for how the federal and provincial governments approach reconciliation with Indigenous peoples. On its face, Daniels is not so much new law, but rather a restatement of the law which raises more questions requiring further judicial guidance. The Court declined to make two of the three declarations requested by the appellants on the grounds that the law was already clear and settled. The remaining issue, a request for a declaration that non-status Indians and Métis peoples were included in the definition of ‘Indian’ for the purposes of section 91(24) of the Constitution Act, 1867, was only partially contested, with the Crown (as respondent) conceding the inclusion of non-status Indians during oral arguments