See two news articles below on the Jan. 9, 2013 federal court decision granting constitutional recognition to Métis people in Canada. And read this recently appeared article:
Defining who is Métis: The Métis registry and the politics of state recognition
By Tara Gereaux, published on Briarpatch (bimonthly print magazine), Jan 2013
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Ottawa’s new native dilemma
Ruling calls for new definition of ‘Indian’ status, doubling number of federally recognized aboriginal people
By Bill Curry and Kirk Makin, Globe and Mail, page one, Jan 9, 2013
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 longstanding 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 “halfbreeds.”
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.
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.
* Canada’s national census (2006) puts the number of “Status” Native Indians, including Métis, at some 1.2 million. http://www12.statcan.ca/census-recensement/2006/rt-td/ap-pa-eng.cfm. Those Métis with “status” are those proving an Indigenous ancestry.
Court ruling deals victory to Métis
Ottawa’s responsibility for non-status Indians has costly implications
Tonda MacCharles, Toronto Star, Tuesday, Jan 9, 2013
Canada’s 600,000 Métis and non-status Indians are indeed “Indians” under the 1867 Constitution Act, and the direct responsibility of Ottawa, the Federal Court of Canada ruled Tuesday. The decision, a huge victory for natives, was a blow to a government trying to contain nationwide aboriginal protests and facing a highstakes meeting with First Nations leaders on Friday.
Aboriginal leaders hope the judgment will lead to better access to health care, education, hunting, fishing and trapping rights on public lands, and the right to directly negotiate or enter treaties with the federal government for many offreserve aboriginals. “It’s huge. To me, it’s a gamechanger,” said Ron Swain, vicechief of the Congress of Aboriginal Peoples. “It’s an absolutely joyful day for all of us.”
Yet the 175-page ruling – a complex look at Canada’s historical legal relationship with native people – is almost certain to be appealed all the way to the Supreme Court.
It did not set out specific financial obligations, benefits or services that Ottawa must now extend. But Justice Michael Phelan, who was critical of many of the government’s arguments and evidence, wrote: “One would expect that the federal government would act in accordance with whatever duty arises in respect of any specific matter.”
Federal lawyers had warned a declaration in favour of the Métis and non-status Indians would do nothing but lead to further litigation. Prime Minister Stephen Harper did not address it at all at a news conference with the president of Benin on Tuesday, even as he referred to big “challenges” on the aboriginal file.
The office of Canada’s minister of aboriginal affairs said only that it is reviewing the ruling. Jan O’Driscoll, spokesman for Minister John Duncan, pointed to the judge’s statement that the case is not about “particular rights either under the Constitution or under specific agreements, nor is it about aboriginal rights.”
He said the government will continue to “work in partnership with all aboriginals across Canada to address shared priorities such as education, economic development and jobs,” suggesting Ottawa is not about to rewrite the Indian Act to broaden access to a whole range of aboriginal services and benefits.
The financial implications for the federal treasury may be huge, but advocates warned that the cost of ignoring the needs of hundreds of thousands of people living off reserve, scattered throughout cities, rural communities or in remote places, could be much bigger. “I would caution the prime minister and government not to take this to appeal, and to sit down and negotiate,” said Swain. “There is a grassroots unrest among aboriginal people in this country. Aboriginal people, especially youth, are fed up. They want change.”
The Congress of Aboriginal Peoples launched the legal challenge 14 years ago. National Chief Betty Ann Lavallée was cautious when asked what would now change in the group’s relationship with Ottawa: “Let’s be honest, it’s not going to change it immediately.” She urged Harper to negotiate with her group, pointing out the court’s reference to the federal government’s own description of Métis and non-status Indians as “the most disadvantaged of all Canadian citizens.”
The judge said a progressive and liberal approach should be taken to interpreting the 1867 Constitution that originally gave Ottawa, not the provinces, responsibility for Indians. But he declined to say Ottawa had a duty to negotiate or consult with any specific group. “Hopefully, the resolution of the constitutional issue will facilitate resolution on other matters,” Phelan wrote.
Lawyer Jean Teillet, great grandniece of Métis leader Louis Riel and legal counsel for the Métis National Council, said the decision resolved “a classic Canadian question: are you a federal or provincial responsibility?”
She said until now, Métis and nonstatus Indians were in a “no man’s land” with federal and provincial governments saying they had no jurisdiction. Yet she questioned the judge’s attempt to define Métis people on an individual basis, which Teillet suggested ran counter to an earlier Supreme Court of Canada ruling that looked at Métis communities and accorded Métis the same hunting rights of Indians and Inuit.
Read more on the history of the Metis people:
Louis Riel and the Manitoba Metis people https://multipluralworld.com//louis-riel-and-the-manitoba-metis-people/
