From APTN.ca

Metis and non-status Indians are 'Indians' court rules

  08. Jan, 2013

APTN National News

Metis and non-status Indians are in fact "Indians" under the Constitution Act a federal court ruled Tuesday.

Which means they are the responsibility of the government.

It took years to get to this point, but the Congress of Aboriginal Peoples is calling the ruling a victory.

But at the same time national chief of CAP Betty Ann Lavellee said it should not have taken this long.

"The federal government has spent 14 years blocking, trying to have the case thrown out," said Lavellee. "That's money that actually could have been put towards addressing some of the key issues."

The ruling means Metis can negotiate treaties and issues such as education, health and tax exemptions.

"The evidence concerning non-status Indians establishes that such persons were considered within the broad class of 'Indians,'" said Justice Michael Phelan in his decision. "The situation regarding Metis was more complex."

However, the court didn't order the government to begin negotiations. So when, and if, that happens remains in question.

"Given the declaration of right in respect of s 91(24), one would expect that the federal government would act in accordance with whatever duty arises in respect of any specific matter touching on the non-clarified fiduciary relationship," he said.

There are over 600,000 Metis and non-status Indians in Canada. In 1999, CAP and several other Metis and non-status Indian groups took the federal government to court for discriminating by refusing to give them status under the Constitution Act.

They asked the court to rule it didn't have jurisdiction to hear the case, however the Phelan ruled the argument before the court was valid.

"It is no answer for the defendants to say that a case such as this cannot be brought because there is no federal legislation against which to assert an action," he said. "There is no such legislation because the federal government denies jurisdiction over Metis and non-status Indians."

The legal battle looked at over 800 exhibits, extracted from 15,000 federal documents, beginning from first contact.

"The canvas over which the parties have painted the answer encompasses Canadian history virtually from the time of Champlain in Passamaquoddy Bay in 1603 to the present day," he said.

As well, millions of public funds were spent.

The court heard the decision over whether to grant Metis status was a "political football" being passed around. The provinces said it was the federal government's responsibility but the feds also fought that.

Minister John Duncan's office simply said that the decision is under review.

"We are reviewing the court's decision to determine the next steps," said a spokesperson, adding as the Federal Court stated, this decision is not about "the interpretation or application of particular rights either under the Constitution or under specific agreements, nor is it about Aboriginal rights."

The decision could cost the federal government billions of dollars if future courts side with Metis and non-status Indians.

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From CBC.ca

Federal Court grants rights to Métis, non-status Indians

Off-reserve aboriginals are 'Indians' and entitled to same Constitutional rights

The Canadian Press - Posted: Jan 8, 2013

Non-status Indians win rights3:11

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 Métis 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 Métis 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."

Politics to the politicians

"It does not mean that Métis or non-status Indians become Indians under the Indian Act," Sebastian Grammond, an expert historical witness in the case told CBC News. "It just means that the federal government has jurisdiction over them, and how it exercises that jurisdiction remains to be seen.

"The judge answered a legal question but left the politics to the politicians," he said. "Differences of treatment [between status and non-status aboriginals] will have to be justified in a rational way rather than just saying, 'Oh, sorry, we don't have jurisdiction over you.'"

Betty Ann Lavallée, the National Chief for the Congress of Aboriginal Peoples - the group that represents aboriginals living off-reserve across Canada - paid tribute to the work of the late Harry Daniels, the former leader who started the case on behalf of her organization.

"This case was all about fairness, dignity, self-worth," she said, saying that until now, non-status aboriginals were treated as "second-class citizens.

"Today's decision will mark a new relationship with the government of Canada," she said. "Let's be honest. It's not going to change it immediately. It's not going to change it tomorrow."

Lavallée said the legal fight cost her group more than $2 million and that over the past 14 years, the money that the federal government spent trying to have it thrown out could instead have gone toward "addressing some of the key issues that the court decision speaks to."

Case dates to 1999

The Congress of Aboriginal Peoples and several Métis and non-status Indians took the federal government to court in 1999 alleging discrimination because they are not considered "Indians" under a section of the Constitution Act.

They argued they are entitled to some or all of the same rights and benefits as status First Nations members, many who live on reserves.

They say that includes access to the same health, education and other benefits Ottawa gives status Indians; being able to hunt, trap, fish and gather on public land; and the ability to negotiate and enter treaties with the federal government.

The congress and the Métis and non-status Indians involved in the case alleged in court documents that they've been the victims of "deprivations and discrimination" by the federal government.

Jason Madden, a lawyer representing the Métis National Council, told CBC News Network that "it's a good day for the Métis nation" and that Tuesday's ruling "removes an obstacle" in their relationship with the federal government - clarifying that in fact the federal government does have jurisdictional responsibilities to provide services to the Métis.

"We know what door to knock on," Madden said. "We have a solid court decision to start the onslaught of litigation."

Madden said the decision will allow the Métis to move forward with negotiations to determine what remedy may be required for past discrimination -- when Métis were not considered as equals with status Indians and Inuit.

"What we are hoping is ... based upon negotiations that they will find a place for the Métis in how [the] Indian Affairs [department] currently operates," he said. "The Métis have some wind in their sails."

The president of the Manitoba Métis Federation said they are taking Tuesday's ruling cautiously, and wanting to make it clear that the Métis identity will not be lost.

"We have to be very cautious about the decision because being classified or bundled together as just Indians, or the title Indians, you know categorized as one group..we are our own nation," said David Chartrand, who is also vice president of the Métis National Council of Canada.

The decision is widely expected to be appealed to the Supreme Court, and the federal government's reaction on Thursday suggested it was contemplating taking another go at it.

Government weighing decision

"We are reviewing the court's decision to determine the next steps," said Jan O'Driscoll, spokesman for Aboriginal Affairs Minister John Duncan.

"Our government continues to work in partnership with all aboriginals across Canada to address shared priorities such as education, economic development and jobs."

He noted that the Federal Court said its decision is not about "the interpretation or application of particular rights either under the Constitution or under specific agreements, nor is it about aboriginal rights."

In other words, the court did not get specific about what the federal government should actually do now that Métis and non-status Indians fall into the broader category of "Indians."

"The court is not prepared to make some general statement concerning fiduciary duty," Phelan's ruling states.

"Given the declaration of right in respect of section 91(24), one would expect that the federal government would act in accordance with whatever duty arises in respect of any specific matter touching on the nonclarified fiduciary relationship."

Phelan plowed through constitutional and aboriginal history going back to before Confederation to come to the conclusion that Métis and non-status Indians should actually be considered Indians under modern law.

The case for Canada's 400,000 non-status Indians was more clear-cut than the case for the 200,000 Métis, but on balance, historical evidence weighs in favour of the Métis too, he wrote.

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