babble-intro-img
babble is rabble.ca's discussion board but it's much more than that: it's an online community for folks who just won't shut up. It's a place to tell each other — and the world — what's up with our work and campaigns.

Federal Court affirms rights of Metis and non-status Indians

Unionist
Offline
Joined: Dec 11 2005

*


Comments

Unionist
Offline
Joined: Dec 11 2005

Federal Court grants rights to Métis, non-status Indians

Quote:

The federal government's responsibilities for aboriginal peoples just got 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 helps to clarify the relationship between Ottawa and the more than 600,000 aboriginal people who are not affiliated with specific reserves.

"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," writes Federal Court Judge Michael Phelan.

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."

There are already indications that the federal government will appeal.

ETA: Sorry, I hadn't noticed that this news was posted about 1/2 hour earlier in the Idle No More thread. I really don't believe it belongs in that other thread, but if the mods feel otherwise, please feel free to close this one.

 

 

 


kropotkin1951
Online
Joined: Jun 6 2002

It can be talked about in more than one thread but I agree its own thread is a good idea.  Here is the Metis National Council's press release.  This is a huge decision and while it appears to be Metis driven it actually affects more non status and off reserve FN's people than Metis.

Quote:

MNC Press Release Posted on January 8, 2013

FOR IMMEDIATE RELEASE:

Federal Court decides that the Federal Government has Jurisdiction for Métis

Ottawa, Ontario, January 8, 2013 – This morning the Federal Court Trial Division released its long-awaited reasons for judgment in Daniels v. Canada.

Judge Phelan has issued a declaration that the federal government has jurisdiction for Métis under s. 91(24) of the Constitution Act, 1867.  That head of power states that the federal government has exclusive legislative authority with respect to “Indians, and Lands reserved for the Indians.”  This case effectively finds that Métis are “Indians” within the meaning of s. 91(24).

The case has been 12 years in the making.  Canada has resisted the claim vigorously, first by denying access to its records and then on the grounds that insufficient facts, the difficulty of the case and the definitional difficulties should preclude a remedy being granted by the court.  The court rejected Canada’s assertions on all of these grounds and emphasized that difficulty cannot be used to deny a remedy.  The judge also held that the Métis have a right to know which government has jurisdiction over them.

The issue of jurisdiction for Métis is an important one.  For decades Canada has only assumed jurisdiction for Métis north of the 60th parallel.  This exclusion has increasingly created a divide between Indians and Métis as economic restrictions have come into place.  As the court noted Canada’s own documents admit that Métis are more exposed to discrimination and other social disabilities and that “in the absence of Federal initiative in this field they are the most disadvantaged of all Canadian citizens.”

Métis National Council President, Clément Chartier, stated that, “this decision is a step forward for the Métis.  We have long understood that the jurisdiction question must be settled by the courts and it has been our understanding that jurisdiction rests with Canada. We now look forward to discussions with the federal government about how we can better work together to implement this decision.”

Vice-President and Manitoba Métis Federation President, David Chartrand, called the decision “a historic milestone and this opens the door for us now to work with the federal government to redirect our Métis tax dollars to meet the economic needs of our people ”. He further stated “this decision will be front and centre at our upcoming meeting with the Prime Minister and Minister of Aboriginal Affairs and Northern Development”.

The case also determined that non-status Indians are “Indians” within the meaning of s. 91(24).

 


Catchfire
Offline
Joined: Apr 16 2003

Yeah I like it with it's own thread too -- we should try to avoid treating INM as a catch-all for aborignal issues and resistance (although it's by definition diverse and broad-based). There are many struggles, etc. Thanks for starting this thread, Unionist. This ruling definitely looks like a landmark case for Indigenous rights. Great news (and of course Harper's appealing. How would we know we were right otherwise?)


kropotkin1951
Online
Joined: Jun 6 2002

This court case highlights the problem with our legal system, especially Charter litigation.  This case is already 12 years old and with appeals up to the SCC it will be 15 years at least before a final decision is made. The final decision will then start a process of trying to figure out what it means in terms of the feds funding what if any programs.  The court case will not determine those critical issues and if the feds decide to stonewall and take the most narrow approach then it will be a largely symbolic decision not one that enhances the lives of the Metis people.  Until the Crown brings its honour to the table there will be little progress made.


quizzical
Offline
Joined: Dec 8 2011

this ruling has made a huge difference to me mentally and emotionally. and it'll make a huge difference to all my family on my dad's side. we're not living in the grey zone of non-People anymore. what's really weird i didn't know it would until it did. and i bet there's 600,000or so  out there who are as surprised as me about the shift in self-perception.

thanks for starting this unionist.

just wanna add to this. there's some things this wiill take care of which most people  never have or will experience. like the census when your indigenous.  i have to declare my FN's heritage. they sent me a letter telling me so. then i get phone calls from them asking me questions like: do i go out in to the forest and gather berries and edible plants, tan leather, make drums or carve wood. and its mandatory i answer them!!!!!!

i mean wtf? i do some of those things but not specifically 'cause i'm of FN heritage. and imv that's pretty racist questioning. stereotypes *bleck*

 


lagatta
Offline
Joined: Apr 17 2002

quizzical, how is this defined? A great many people here in Québec have Indigenous ancestry, but I'm sure not everyone with a Native grandparent can be included. 


quizzical
Offline
Joined: Dec 8 2011

lagatta my grandma is Mi'kmaq and we have no "Treaty". it means we have no "Status". she doesn't even know what "Status" is. they speak only Acadian french in Cheticamp

the Mi'kmaq were colonized by the french long before any other FN's were. when the french lost the war to the british and were kicked out of nova scotia the Mi'Kmaq were left speaking only french/acadian without treaty or ties to britian. there's a peace and friendship agreement.

we've never ceded NS or any of the atlantic provinces. it's all Mi'maq territory. this court case makes us legally 'Indian' . no doubt it will still be a long haul but now at least we're recognized  as  a People.


6079_Smith_W
Online
Joined: Jun 10 2010

I know Metis doesn't mean quite the same thing in the prairies as it does down east. And I know that down in the states the rule when it comes to certain things is quarter blood (which makes a bit more sense than our former sexist laws, but not all that much more sense).

But there is a big problem when a nation does not have the legal power to decide who is and who is not a member. That affects all Native people in Canada.


Unionist
Offline
Joined: Dec 11 2005

Here is a link to the full court decision, for those with time and inclination to read it all (it works out to around 80 pages).

A couple of points from the decision, for what they're worth, in response to lagatta's question (though I emphasize this is just the court's view - it may or may not correspond to how Indigenous people view the matter):

Quote:

[122]      The group of people characterized as “non-status Indians” are those to whom status could be granted by federal legislation. They would be people who had ancestral connection not necessarily genetic to those considered as “Indians” either in law or fact or any person who self-identifies as an Indian and is accepted as such by the Indian community, or a locally organized community, branch or council of an Indian association or organization which which that person wishes to be associated.

And:

Quote:

[127]      In Powley, above, the Supreme Court did not attempt to define the outer limits of “Métis” but it did provide a method for finding who a Métis is for purposes of s 35. Aside from the sine qua non of mixed aboriginal and non-aboriginal ancestry, a Métis is a person who

(a)        has some ancestral family connection (not necessarily genetic);

(b)        identifies himself or herself as Métis; and

(c)        is accepted by the Métis community or a locally organized community branch, chapter or council of a Métis association or organization with which that person wishes to be associated.

 

 


quizzical
Offline
Joined: Dec 8 2011

6079_Smith_W wrote:
I know Metis doesn't mean quite the same thing in the prairies as it does down east. And I know that down in the states the rule when it comes to certain things is quarter blood (which makes a bit more sense than our former sexist laws, but not all that much more sense).

But there is a big problem when a nation does not have the legal power to decide who is and who is not a member. That affects all Native people in Canada.

we're not Metis and wouldn't be recognized as one.

if the Mi'kmaq had a treaty (glad we don't) i would have status. i've got friends who've less genetics than me and they have "Status" and they didn't really get why i don't until i explained. my cousins have "Status" because  their moms were 'Ulkatcho'ten but not from their dad even though he's 'half' Mi'kmaq. they'd now be considered full "breed" Indian.

FN's across Turtle Island aren't monolothic and most don't know much about other Nations unless their connected somehow. i know a bit more 'cause of east coast west coast FN family connections and lived on Coast Salish Reserve for a bunch of years. and we've family friends who are Nuu-chah-nulth, Mowachaht, Haisla, Haida, Gitxsan, Cree, Saulteaux, ' Anishanaabe' Objibwe. and my mom's cousin is Haudenosaunee from Grand River (6 Nations).

oh forgot Carrier Sekani and Dene family ties. I've 2nd or would it be 3rd cousins who are Inuit but my mom's uncle has nothing to do with them only his Dene son.


6079_Smith_W
Online
Joined: Jun 10 2010

@ quizzical

Sorry. I wasn't referring to you personally; just pointing out that regarding some Native groups - specifically Metis -  there isn't one definition from coast to coast. But more importantly, until Native nations control their own membership they will have limited sovreignty.

 

 


quizzical
Offline
Joined: Dec 8 2011

it's pretty tangled in some cases _smith. in some cases many Nations would have to recognize just 1 person.

in another twist couple years after they got DNA from 2 long dead Beothuks in 2006 or 7 someone contacted my mom to go for DNA testing 'cause  her family were in the Bonavista Bay area since the mid 1600's. she hasn't done it yet 'cause if she doesn't have the DNA then her family prob helped wipe them out.

 


6079_Smith_W
Online
Joined: Jun 10 2010

I remember back in the 90s having a conversation with a fellow who was Sinix - a nation from the BC Interior who were declared extinct. In reality many of them had moved stateside for a number of reasons, including the epidemic which had decimated their people.

 


quizzical
Offline
Joined: Dec 8 2011

i think* they've found some who have Beothuk DNA. never heard of the Sinix. it's a typical story "there was no there we we came".


Catchfire
Offline
Joined: Apr 16 2003

As expected, Ottawa to appeal


NDPP
Offline
Joined: Dec 28 2008

6079_Smith_W wrote:

I remember back in the 90s having a conversation with a fellow who was Sinix - a nation from the BC Interior who were declared extinct. In reality many of them had moved stateside for a number of reasons, including the epidemic which had decimated their people.

 

http://sinixtnation.org


Unionist
Offline
Joined: Dec 11 2005

Catchfire wrote:

As expected, Ottawa to appeal

... and Ottawa LOSES!!!

Unanimous Supreme Court ruling says Ottawa has jurisdiction over all indigenous people

Quote:

Canada's top court has ruled that tens of thousands of Métis and non-status Indians are now under the jurisdiction of the federal government, in a decision that the prime minister says will have "broad consequences and impacts."

"This is a great day for over 600,000 Métis and non-status Indians," said Dwight Dorey, national chief of the Congress of Aboriginal Peoples, after the Supreme Court of Canada decision was released Thursday, ending a 17-year battle.

"Now hopefully we will not have to wait any longer to sit at the table."


lagatta
Offline
Joined: Apr 17 2002

It is great news, but it will take a lot of work and time to work out the details. I'll definitely read the ruling (in French and in English) when I have the time.


iyraste1313
Offline
Joined: Jan 18 2014

It may change the balance of power within First Nations Communities, where so many have not been considered 'status', due to inter marriage with Europeans...


kropotkin1951
Online
Joined: Jun 6 2002

The ruling upholds the trial Judge's decision and is rather narrow in scope. It does not mean that non-status Indians have a right to join a particular band it only means that the federal Crown owes these people a fiduciary duty. It will mean that the Metis community and urban native communities will get to negotiate with the federal government for program funding.

Quote:

[4]                              The trial judge, Phelan J., made a number of key factual findings in his thoughtful and thorough reasons.[1] As early as 1818, the government used “Indian” as a general term to refer to communities of mixed Aboriginal and European background. The federal government considered Métis to be “Indians” in various treaties and pre-Confederation statutes, and considered Métis to be “Indians” under s. 91(24) in various statutes and policy initiatives spanning from Confederation to modern day. Moreover, the purpose of s. 91(24) was closely related to the expansionist goals of Confederation. The historical and legislative evidence shows that expanding the country across the West was one of the primary goals of Confederation. Building a national railway was a key component of this plan.

[5]                              Accordingly, the purposes of s. 91(24) were “to control Native people and communities where necessary to facilitate development of the Dominion; to honour the obligations to Natives that the Dominion inherited from Britain . . . [and] eventually to civilize and assimilate Native people” (para. 353). Since much of the North-Western territory was occupied by Métis, only a definition of “Indians” in s. 91(24) that included “a broad range of people sharing a Native hereditary base” (para. 566) would give Parliament the necessary authority to pursue its agenda.

[6]                              His conclusion was that in its historical, philosophical, and linguistic contexts, “Indians” under s. 91(24) is a broad term referring to all Indigenous peoples in Canada, including non-status Indians and Métis.

[7]                              He found that since neither the federal nor provincial governments acknowledged that they had jurisdiction over Métis and non-status Indians, the declaration would alleviate the constitutional uncertainty and the resulting denial of material benefits. There was therefore practical utility to the first declaration being granted, namely, that Métis and non-status Indians are included in what is meant by “Indians” in s. 91(24). He did not restrict the definition of either group.

[8]                              He declined, however, to grant the second and third declarations on the grounds that they were vague and redundant. It was already well established in Canadian law that the federal government was in a fiduciary relationship with Canada’s Aboriginal peoples and that the federal government had a duty to consult and negotiate with them when their rights were engaged. Restating this in declarations would be of no practical utility.

http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/15858/index.do?utm_sour...


Unionist
Offline
Joined: Dec 11 2005

kropotkin1951 wrote:

The ruling upholds the trial Judge's decision and is rather narrow in scope. It does not mean that non-status Indians have a right to join a particular band it only means that the federal Crown owes these people a fiduciary duty. It will mean that the Metis community and urban native communities will get to negotiate with the federal government for program funding.

Right.

It would be rather (what's the word?) colonialist for a Canadian court to decide who can join which band. Not our business.

But I think the confirmation of federal responsibility is potentially huge. Otherwise the perps (both Liberals and Conservatives) wouldn't have fought against it in court for 17 years. Where it goes from here, I don't know...

 


kropotkin1951
Online
Joined: Jun 6 2002

I didn't find this joke funny but poignant. Ifear it says it all about what the 17 year court battle has won the Metis and non-status Indians.


swallow
Offline
Joined: May 16 2002
iyraste1313
Offline
Joined: Jan 18 2014

It does not mean that non-status Indians have a right to join a particular band it only means that the federal Crown owes these people a fiduciary duty. .....

 ......according to a friend and one of the initiators of this action, the above is incorrect, that the decision has huge implications!

the children of a couple, mixed marriage, will have the right to join the band of their mother or father...


kropotkin1951
Online
Joined: Jun 6 2002

I am afraid that "your friend" is not a credible legal source. This case has absolutely nothing to do with the relationship of individuals to specific band counsels and their rules on membership in their First Nation. As posted above this is a credible summary of the effects of the ruling. The Inuit are also "Indians" under the Constitution thanks to a court case but they have no right to join a Dene First Nation and that is the same for the non-Status "Indians" and the Metis who have now been determined to be "Indians" under the Constitution.

Quote:

“Who is an Indian” then becomes important, because if you are an Indian, the federal government, not the provinces, is responsible for you.

The first group to clearly be “Indians” are those who come under the Indian Act, and are Status Indians.

The second group to be defined as Indians under section 91(24) of the Constitution were Inuit in 1939. This obviously did not turn Inuit people into First Nations people, and Inuit people did not become Indians under the Indian Act. It was just about assigning responsibility, in this case the federal government, not the provinces, is responsible for Inuit.

Non-Status Indians are those who are not considered Indians under the Indian Act but are still obviously Aboriginal people. The Métis are another group of Aboriginal people. For years and years and years and years both groups have been tossed back and forth like a hot potato between the provinces and the federal government, each one saying “they’re you’re problem, not ours!” This has left non-Status Indians and Métis in a sort of legal limbo.

The Daniels decision classifies non-Status Indians and Métis as “Indians” under section 91(24) of the Constitution. This clarifies that both groups are a constitutional responsibility of the federal government and not the provinces.

  • non-Status Indians and Métis are still not governed by the Indian Act
  • non-Status Indians and Métis did not just become Status Indians
  • the federal government will still attempt to limit its responsibility to Status Indians living on reserve, which is where most of the (inadequate) federal funding goes
  • non-Status Indians and Métis do not suddenly have the right to live on reserve (if they do not already have that right)
  • this decision does not ensure that non-Status Indians and Métis will have new federal funding opportunities, that is going to have to be negotiated for, or fought with, the federal government

 


Comment viewing options

Select your preferred way to display the comments and click "Save settings" to activate your changes.
Login or register to post comments