Straight Talk
JOHN ROBSON - Metis victory highlights mistakes in law

Credits: Fotolia

JOHN ROBSON | QMI AGENCY

A judge just decided to double Canada's Indian population and see what happens. All we need on top of Idle No More hunger strikes and blockades, right? But don't blame the ruling, which was lucid, reasonable and restrained. Blame the law, which cares what race you are.

The word "Indian" above may sound as cluelessly bigoted as, say, "Negro" today. But it's a key legal term because Section 91 clause 24 of Canada's Constitution Act, 1867 gives the federal government sole responsibility for "Indians, and lands reserved for the Indians".

Thus under a 1939 court case, Eskimos in Canada remain "Indians" long after they stopped being Eskimos and became Inuit. It doesn't mean they're under the Indian Act. But they are under exclusive federal jurisdiction.

So, now, are Metis and non-status Indians. A group of plaintiffs argued that the term "Indian" in the Constitution was broad rather than narrow and Judge Michael Phelan of the Federal Court decided the evidence, from pre-Confederation to post-charter days, supported them.

Read his ruling and I think you'll agree. Unfortunately I think you'll also agree the ruling has two major problems. It gave people significant rights without identifying either the rights or the people.

The plaintiffs alleged being deprived of "Indian" status meant "deprivations and discrimination in the nature of: lack of access to health care, education and other benefits available to status Indians; lack of access to material and cultural benefits; being subjected to criminal prosecutions for exercising Aboriginal rights to hunt, trap, fish and gather on public lands; and being deprived of federal government negotiations on matters of aboriginal rights and agreements." But in awarding them that status the court simply authorized them to pester the federal government for whatever content those rights might have, enormous or trivial.

Even worse, it didn't say who got them. It gave Metis and non-status Indians "Indian" status without doing anything to settle who belongs in either category, already bitterly disputed before it carried legal privileges.

The Metis National Council, for instance, says a Metis must have some historical connection to descendants of French or Scottish fur traders and native women between the northern Great Lakes and the Rocky Mountains. But the Congress of Aboriginal Peoples wants it applied more broadly to people of mixed aboriginal/European background. Likewise, given how many Canadians have at least some aboriginal ancestors, who decides who's a real Indian?

The court offered only two negative guidelines. First, it disavowed "racial or blood purity laws" partly because of Nazi horrors. But if you're not going to measure Indian-ness by ancestry how on Earth would you?

Second, it said the federal government cannot decide because it's a question of Constitutional jurisdiction and no level of government can expand or contract its jurisdiction by legislative or executive action. But if not the feds, who? How? And with what checks and balances?

Huge numbers of people could be affected. In 2006, Statistics Canada numbers suggest Canada had around 625,000 status Indians, 133,000 non-status self-identified Indians, 370,000 Metis and 58,000 Inuit. But the number of "Metis" had nearly doubled since 1996, not from frantic activity between the sheets but from growing pride in aboriginal identity. And over half a million other Canadians claimed some aboriginal ancestry. How many more might dust off old stories about aboriginal great-grandparents, especially if there's money in it?

How much money is unclear. You might think doubling the aboriginal population means doubling the roughly $10 billion the feds spend on them or cutting everyone's cheque in half. But around $7 billion is spent by Aboriginal Affairs and Northern Development on people on reserve, Inuit and land claims, which shouldn't be affected much. A lot more, by Health Canada, is also spent on reserve, though the ruling could add clients to the fairly minor federal Non-Insured Health Benefits program for aboriginals.

On the other hand, we don't want hundreds of thousands, even a million, more people swamping housing, educational or cultural programs, hunting on public land, or joining radical political movements clamouring for really big bucks. All because we're suddenly treating more people differently based on race.

Don't blame the judge. Blame the law ... and the legislators who created it.

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