Thomas Isaac and Arend Hoekstra’s paper titled “Identity and Federalism: Understanding the Implications of Daniels v Canada” has been published in LexisNexis’ Supreme Court Law Review, 2nd Series, Volume 81 – a collection of papers reviewing Constitutional Law decisions of the Supreme Court of Canada released in 2016.
Write Tom and Arend: “The Supreme Court of Canada first used the capitalized term “Indigenous” in relation to those people covered by section 91(24). People covered by section 91(24) were found to include non-status Indians, Métis, and mixed-ancestry peoples who only partially meet the Powley test for characterization as Métis. By adopting the noun “Indigenous” in the context of section 91(24) rather than the more narrow context of section 35, the Supreme Court of Canada raises questions about the nature and scope of reconciliation and redress, and the potential implementation of the United Nations Declaration on the Rights of Indigenous Peoples. In specifying federal responsibility for Indigenous peoples under section 91(24), the Supreme Court adds to recent jurisprudence emphasizing that provinces can legislate over Indigenous peoples through valid provincial schemes not impairing the core of Indian power. This jurisprudential trend suggests that the provinces may have a role in some areas currently being served by the federal government, such as health, education, and other social services.”