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Federal Court affirms rights of Metis and non-status Indians

Unionist
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Unionist
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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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
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Joined: Apr 16 2003

As expected, Ottawa to appeal


NDPP
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Joined: Dec 27 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


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