The ruling by the Federal Court declaring Métis and non-status Indians as “Indians” under the Constitution Act of 1867 carries the potential for dramatic change to the aboriginal policy landscape in Canada.
Tuesday’s judgment lifted the legal fog over whether Métis and non-status Indians fall under federal or provincial jurisdiction. It is similar to a 1939 Supreme Court ruling that declared Canada’s Inuit – then called Eskimos – fell under the federal government’s legal authority. What the Federal Court decision did not do is clearly state how this might ultimately affect aboriginal rights under section 35 of the 1982 Constitution Act or the federal Indian Act.
What benefits does Ottawa provide to status Indians?
Ottawa keeps a list of aboriginals who qualify for Indian status. There were 840,300 people in the federal Indian registry as of 2009. Registered Indians can apply for postsecondary tuition support, as well as on-reserve social programs that mirror provincial programs, such as income assistance and assisted living. There is also the Non-Insured Health Benefits program, which covers some prescription medication and health services that are not covered provincially.
Registered Indians are also not taxed on income earned on a reserve and are exempt from paying the goods and services tax on items purchased on a reserve.
How many people are affected by this ruling?
There are 404,000 Métis, according to the 2006 census. It’s not clear how many non-status Indians there are, but the Federal Court ruling referenced an estimate of 200,000. The court also estimated the number of Métis and non-status Indians could be as high as one million.
The potential for federal recognition could lead more Canadians with aboriginal ancestry to identify themselves as aboriginal, which is a broad term that includes status and non-status Indians, Métis and Inuit. Census data from 2006 found 1.3 million people reported an aboriginal identity, yet 1.7 million reported aboriginal ethnic origin.
Métis are the aboriginal group with the fastest population growth, according to Statistics Canada. The Métis population increased 91 per cent between 1996 and 2006 – three times the growth rate of other native groups and 11 times the 8-per-cent rate of growth of the non-aboriginal population.
Statistics Canada says such growth stems from a high fertility rate but also “an increasing tendency for people to identify themselves as Métis.” The agency says people of Métis ancestry may have been encouraged to claim that identity because of recent developments, such as being recognized in the 1996 final report of the Royal Commission on Aboriginal Peoples or having the Supreme Court of Canada establish in the 2003 Powley decision that they could have hunting and fishing rights.
Who are the Métis?
The word Métis is often used to describe the descendants of the historic Métis Nation, the offspring of native women and European fur traders who prospered in what is now Western Ontario, Manitoba, Saskatchewan and Alberta and had developed their own culture and Michif language by the 19th century.
However, as the report of the Royal Commission on Aboriginal Peoples notes, the term has also been applied to a number of other people of mixed, European-aboriginal ancestry. There are well-defined communities in Labrador for example. Three years ago, they changed their name from the Labrador Métis Nation to NunatuKavut to reflect their Inuit heritage.
In its landmark Powley decision, the Supreme Court outlined three factors to recognize people claiming Métis rights. First, they must have long self-identified as Métis. They must have some ancestral connection to the Métis, though not necessarily a genetic link, since one could have been adopted, for example. Lastly, the claimants should be accepted by their Métis community or organization.
Who are the non-status Indians?
The qualifications for Indian status are complex and have been revised several times throughout Canada’s history, often as a result of court challenges. For instance, major changes in 1985 did away with a provision that a status woman who married a non-Indian would lose her status. It also ended the “double mother” rule under which the children of a mother and grandmother who were both non-status would lose their status at age 21; that change, known as Bill C-31, added more than 100,000 people to the Indian registry.
Yet even with these changes, many people who consider themselves to be first nation – the commonly used term for Indian – do not meet the latest definition under the Indian Act. Even though some of these people may be accepted as members of a first nation community, they remain non-status Indians in Ottawa’s eyes. Non-status Indians do not currently qualify for individual federal benefits, though they may benefit from general federal spending to help urban aboriginals, such as support for Friendship Centres.
Métis and non-status Indians live mostly in urban areas. Are there any land issues here?
After Confederation, the federal government opened the Prairies to European settlers. The Métis resisted, under the leadership of Louis Riel, forcing Parliament to agree in 1870 to the Manitoba Act. This created the province and would have distributed 1.4 million acres to the Red River Métis “towards the extinguishment of the Indian title to the lands in the province.”
The land distribution was, however, handed out in such a delayed, dispersed fashion that, more than a century later, the Métis have turned to the courts to argue that the federal government reneged on its promise and cheated them of a homeland. The case is now before the Supreme Court.
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