Metis and Non-Status Indians Declared 'Indians' under Constitution Act: Court

By Scoffield, Heather | The Canadian Press, January 8, 2013 | Go to article overview

Metis and Non-Status Indians Declared 'Indians' under Constitution Act: Court


Scoffield, Heather, The Canadian Press


Metis, non-status natives declared 'Indians'

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OTTAWA - Thanks to a single court decision, the federal government's responsibilities for Canada's Aboriginal Peoples have suddenly become a whole lot bigger.

After more than 13 years of legal wrangling, the Federal Court ruled on Tuesday that Metis and non-status Indians are indeed "Indians" under a section of the Constitution Act, and fall under federal jurisdiction.

The decision adds to the mounting pressure on Stephen Harper to rethink the way Ottawa deals with native populations, who are among the most impoverished in Canada.

The ruling helps to clarify the relationship between Ottawa and the hundreds of thousands of aboriginal people in Canada who are not affiliated with specific reserves and have essentially no access to First Nations programs, services and rights. The Congress of Aboriginal Peoples estimates their ranks at more than 600,000.

"This is huge and it ends the denial of aboriginal birthrights that has existed for far too long among off-reserve Metis and non-status Indians," said Betty Ann Lavallee, national chief of the congress.

"Today is a very emotional day for me and a very hopeful day for all off-reserve aboriginal peoples."

In his decision, Federal Court Judge Michael Phelan rejected the federal government's attempts to maintain a narrow definition of who can be considered Indian.

He waded through centuries of aboriginal history to look at definitions of who has been considered Indian in the past, and how they were treated -- by native communities and by various levels of government.

The case for Canada's non-status Indians was more clear-cut than the case for Metis, but on balance, historical evidence weighs in favour of the Metis too, he wrote.

"The recognition of Metis and non-status Indian as Indians under section 91(24) should accord a further level of respect and reconciliation by removing the constitutional uncertainty surrounding these groups," Phelan writes.

Estimates of precisely how many Metis and non-status Indians there are in Canada vary widely, but demographers say both populations are growing rapidly. Statistics Canada reported some 400,000 Metis in the 2006 census; specific ethnic data from the 2011 census isn't due for release until next year.

While the decision does not go so far as to declare that the federal government has a fiduciary responsibility to the group, it says such duties would flow automatically now that their standing has been clarified.

"There is no dispute that the Crown has a fiduciary relationship with aboriginal people both historically and pursuant to section 35 (of the Constitution)," Phelan writes.

However, he adds: "That duty is not an open-ended undefined obligation but must be focused on a specific interest."

Legal experts expect the federal government to appeal the decision, partly because its implications are major -- and complicated.

If left to stand, the ruling would affect a wide range of provincial and federal policies, said Robert Janes, a Victoria lawyer who focuses on aboriginal issues but was not involved in the case.

Governments would now have a duty to consult with non-status Indians and Metis on changes to law and policy, he said. And they will have to revisit the scope of their social services, economic development and protections for aboriginals.

"This is going to require a lot of bureaucratic re-thinking and policy development, and it's going to be years of figuring this out."

Until now, he said, many non-status or Metis people have grown up in households where their half-brothers and half-sisters on reserves had access to hunting and fishing rights, or funding for post-secondary education -- services they themselves were denied because of their parentage. …

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