Legal and Social Affairs Division
Section 35 (2) of the Constitution Act, 1982 defines the Aboriginal peoples of Canada as including Indian (also referred to as First Nations), Inuit and Métis.
Despite this broad constitutional definition, the federal government’s current policy is that its responsibility – with a few exceptions – extends only to Indian people resident on-reserve, while provincial governments have a general responsibility for Aboriginal peoples living off-reserve.
To date, neither the federal government nor the provincial governments have accepted any special responsibility for Métis and non-status Indians, though recent court decisions are beginning to clarify this longstanding jurisdictional ambiguity.
Section 91(24) of the Constitution Act, 1867 provides that the federal government has exclusive legislative authority over “Indians and lands reserved for the Indians.”
As noted, this authority is exercised primarily in relation to the on-reserve registered (status) Indian population. Under this head of power, the federal government has enacted various pieces of legislation dealing with Indians and lands reserved for them, most notably the Indian Act, which governs many aspects of the lives and lands of status Indians.
A 1939 Supreme Court of Canada decision expanded the definition of ‘Indian’ to include the Inuit (Re: Eskimo). The decision forms the basis for federal Inuit authority; however, federal programs targeted to Inuit have been of lesser scope than those provided to First Nations. Importantly, in 1951, the Indian Act was amended to exclude the Inuit from its application.
Recent Federal Court decisions have again expanded the scope of the term “Indians” to include the Métis. Upholding previous rulings, in April 2014, the Federal Court of Appeal in Daniels v. Canada made a declaration confirming that the Métis fall within the meaning of section 91(24).
While the decision confirms federal legislative authority for Métis peoples in Canada, the extent to which any specific obligations are established is as yet undetermined.
The federal government appealed this ruling to the Supreme Court, which heard arguments in October 2015.
Generally, Indigenous peoples, on and off reserve, are subject to provincial laws of general application, such as child welfare. Section 88 of the Indian Act incorporates provincial laws of general application.
Provincial laws that do not specifically single out “Indians” could apply of their own force. However, the application of provincial laws to “Indians” and “lands reserved for Indians” is subject to a number of important qualifiers:
- Provincial laws to which “Indians” are subject must be general in nature and cannot relate exclusively or directly to Indians, because such laws would infringe upon an area of exclusive federal jurisdiction.
- Provincial laws must not affect an integral part of primary federal jurisdiction over Indians and lands reserved for Indians.
- Provinces subject to the 1930 Natural Resources Transfer Agreements (Manitoba, Saskatchewan and Alberta) may not enact laws that deprive “Indians” of their right to take game and fish for food.
- A provincial law, like a federal law, can be declared of no force and effect if it unjustifiably infringes an existing Aboriginal or treaty right protected under section 35 of the Constitution Act, 1982.
The provinces have not accepted any formal constitutional responsibilities for Indigenous peoples. However, in practice, provincial governments provide a number of programs and services to the off-reserve Indigenous population. These include affordable housing, employment services, and child and family services normally available to provincial residents.
The applicability of provincial laws with respect to treaty and title lands has recently been addressed by the Supreme Court of Canada in Tsilhqot’in Nation v. British Columbia (2014) and Grassy Narrows First Nation v. Ontario (Natural Resources) (2014).
These decisions suggest that provincial laws regulating natural resources on Indigenous treaty and title lands would be valid as long as they can be justified. That is, they meet a valid legislative objective; meaningful consultations have taken place; and they are consistent with the trust-like relationship between the federal government and Aboriginal peoples.
Federal expenditures for Indigenous peoples
The majority of federal expenditures on Indigenous peoples are administered by the Department of Indigenous and Northern Affairs Canada (INAC) and Health Canada’s First Nations and Inuit Health Branch. In 2015-2016, planned spending by INAC and Health Canada (less operating expenses) amounts to roughly $9 billion.
Of this amount, Parliament approved about $6.9 billion to INAC for funding arrangements that, among other matters, support a variety of programs and services in First Nations communities. These initiatives include community infrastructure, elementary/secondary education, social assistance, housing and economic development .
Currently, First Nations directly manage 85% of INAC’s program budget. A further 11% is transferred to the provinces for the delivery of services to First Nations members.
Health Canada was allotted about $2.5 billion for programming aimed at improving the health of Indigenous peoples. This amount was allocated to three program areas:
- $809 million to First Nations and Inuit primary health care programs;
- $1.1 billion to supplementary health benefits for First Nations and Inuit, such as non-insured health benefits; and
- $635 million to health infrastructure support for First Nations and Inuit.
Other federal departments, such as Employment and Social Development Canada and Fisheries and Oceans Canada, provide some programs and services to First Nations, Inuit and Métis people.
However, overall annual federal spending on Indigenous peoples is difficult to track. In part, this is because government departments account for spending in different ways and may not track spending by Indigenous groups.
Since 1997-1998, annual INAC funding for programs and services for status Indians on reserve has been subject to a 2% cap on annual increases. Organizations such as the Assembly of First Nations have suggested that, when population increases and inflation are taken into account, this budgetary restriction has contributed to significant funding gaps in areas such as education and infrastructure on reserve.
Jordan’s Principle: Navigating jurisdictional complexities
The current jurisdictional framework can result in ambiguity over which level of government – federal or provincial – is responsible for delivering and funding services, and for which specific group. Such disputes can delay or impede access to required services.
Such was the case for Jordan River Anderson, a status Indian child with a rare neuromuscular disorder, who required specialized care in a medical foster home. The federal and provincial governments disagreed over who would pay for Jordan’s at-home care. After spending more than two years in a hospital, Jordan died in 2005 before the dispute was resolved.
This case led to the development of Jordan’s Principle, named in his honour, which prioritizes the delivery of services to First Nations children in the event of a jurisdictional disagreement.
Under Jordan’s Principle, if a jurisdictional dispute arises between two government parties or between two departments of the same government regarding payment for services guaranteed to First Nations children, the agency first contacted must pay for the services without delay or disruption.
The intention was that only after the child’s care is assured could the paying government refer the issue to a jurisdictional dispute resolution mechanism.
On December 12, 2007, the House of Commons unanimously adopted a private member’s motion (M-296) on this issue. It called on the government to “adopt a child-first principle, based on Jordan’s principle, in order to resolve jurisdictional disagreements involving the care of First Nations children.”
 This HillNote has been adapted from the following publication: Tonina Simeone, “Federal-Provincial Jurisdiction and Aboriginal Peoples,” TIPS-88E, February 1, 2001.
 Tonina Simeone, “Federal-Provincial Jurisdiction and Aboriginal Peoples,” TIPS-88E, February 1, 2001.
For more information about programs and services for indigenous peoples, consult the Reports on Plans and Priorities which are prepared annually by each government department.
Information on federal jurisdiction and answers to common questions regarding status Indian programs and services can be found here.
Planned expenditures for programs and services provided by the Government of Canada to First Nations, Inuit, and Métis peoples can be found in the Main and Supplementary Estimates. Actual spending organized by department and program can be found in Volume 2 of the Public Accounts of Canada.