The number of constitutionally recognized aboriginal people in Canada should double, the Federal Court of Canada has ruled in a judgment saying Métis and “non-status” Indians qualify as “Indians” under the 1867 Constitution Act.
If unchallenged, the ruling would force Ottawa to recognize and deal directly with about one million people who were left outside previous definitions of “Indians” who have special rights to negotiate directly with the Crown and qualify for federal benefits.
Métis and non-status aboriginal groups said the decision opens a door to negotiation – or litigation – on similar rights to health, education and other benefits that Ottawa restricts to aboriginal people with official Indian status under the Indian Act.
At the same time, they braced for a possible backlash from status Indians, who may see the decision as a setback to their efforts to win services and benefits.
Tuesday’s ruling comes amid a country-wide surge in protests, including a high-profile hunger strike, against the Conservative government’s overall approach to dealing with aboriginal people.
Jan O’Driscoll, a spokesperson for federal Indian Affairs Minister John Duncan, said Ottawa is reviewing the decision to determine its next move.
However, experts believe the case will end up in the Supreme Court of Canada.
By dramatically redesigning a key element of the country’s history, Mr. Justice Michael Phelan effectively cleared up a long-standing dispute between Ottawa and the provinces over responsibility. His ruling also summons up a host of challenges for the federal government.
Judge Phelan ruled that Métis (a group largely descended from Indian women and European men), along with Indians who have lost their formal legal status, qualify as Indians under the 1867 act.
Setting aside rules based on bloodlines, Judge Phelan said that criteria relating to geographical or cultural location, or membership in an indigenous community organization, are more civilized ways to define aboriginality than “blood purity.” His ruling cites Nazi Germany and South Africa’s apartheid regime as “two examples of why Canadian law does not emphasize this blood/racial purity concept.”
Judge Phelan said there are possibly one million Métis and non-status Canadians, which is just slightly more than the number of status Indians Ottawa recognizes. The potential doubling of Indians for which Ottawa is constitutionally responsible could ultimately force Ottawa into radical policy changes, billions in new spending, or both.
Betty Ann Lavallée, the national chief of the Congress of Aboriginal Peoples, which launched the case 13 years ago, said Canadians should consider costs in a larger context.
“What is the cost to Canada for doing nothing?” she asked at a news conference. “By doing nothing, you’re still going to have the status quo, which is a drain both on the economy, on the social system, health care services. To me, I would rather invest in human potential.”
While the court did not expressly order the government to negotiate with Métis and non-status Indians over claims such as health, education and land, Judge Phelan left little doubt that his ruling will exert pressure to do so.
“The recognition of Métis and non-status Indian as Indians ... should accord a further level of respect and reconciliation by removing the constitutional uncertainty surrounding these groups,” he said.
Judge Phelan anchored his ruling in expert testimony and documents that show provinces were assembled and railroads built partly due to the acquisition of land from so-called “half-breeds.”
Métis leader Tony Belcourt said the Métis will seek health, education and economic development benefits, and compensation for land “taken away or swindled away from us.”
In a blog entry on Tuesday, Mr. Belcourt also predicted a likely rift within the indigenous community.
“It is so true that every time we come near to gaining what are rightfully our entitlements, the First Nations are pitted against us,” he said. “They are led to believe that anything we gain must be at their expense.”
Native leader Bill Erasmus disagreed. He said the ruling will merely add momentum to calls by native leaders to have their rights recognized based on membership in a traditional nation or treaty group, rather than by way of a definition within the Indian Act.
Judge Phelan expressed distaste for federal arguments that politicians alone should define who is an Indian via legislation.
“The proposition would allow the federal government to expand and contract their constitutional jurisdiction over Indians unilaterally,” he said.
For example, Judge Phelan said that a money-conscious government could simply deprive individuals of their aboriginality with the stroke of a pen.
One option for Ottawa would be to expand the definition of Indian under the Indian Act. However, the act is widely criticized as a racist relic. While most aboriginal leaders want it scrapped, there is no consensus on a replacement.
Dwight Newman, a University of Saskatchewan law professor, said Judge Phelan’s decision may have dramatic consequences.
“It will open new litigation on the scope of resulting federal responsibilities as well as on the constitutionality of existing provincial arrangements – especially in Alberta,” he said. “This case may well respond to challenges that existed but it’s going to create a period of many new questions.”
Jason Madden, legal counsel for the Métis National Council, said it was “a great day for Métis.” However, he added that if Ottawa does not begin discussions and negotiations on rights, it will face an “onslaught of litigation.”
Metis and non-status Indians: a profile
- Statistics Canada says there are 404,000 Métis, according to the 2006 census.
- There is little official data on non-status Indians, but 549,005 of the 1.17 million aboriginals in the 2006 census said they were non-registered Indians.
- Métis 29.4 years
- North American Indian 25.3 years
- Inuit 22 years
- Non-aboriginal 39.4 years
- Métis children are twice as likely as non-aboriginal children to live in a single-parent family.
- More than two-thirds of Métis live in urban areas.
- The census metropolitan areas with the largest number of Métis residents include:
- Winnipeg 40,980
- Edmonton 27,740
- Vancouver 15,075
- Calgary 14,770
- Saskatoon 9,610
- Ottawa-Gaineau 7,990
- About 50 per cent of adult Métis have post-secondary education compared to 61 per cent of the non-aboriginal population.
Source: Statistics Canada. All figures based on 2006 census data
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