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Metis and non-status Indians declared 'Indians' under Constitution Act: court

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OTTAWA - Thanks to a single court decision, the federal government's responsibilities for Canada's Aboriginal Peoples have suddenly become 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 adds to the mounting pressure on Stephen Harper to rethink the way Ottawa deals with native populations, who are among the most impoverished in Canada.

The ruling helps to clarify the relationship between Ottawa and the hundreds of thousands of aboriginal people in Canada who are not affiliated with specific reserves and have essentially no access to First Nations programs, services and rights. The Congress of Aboriginal Peoples estimates their ranks at more than 600,000.

"This is huge and it ends the denial of aboriginal birthrights that has existed for far too long among off-reserve M�tis and non-status Indians," said Betty Ann Lavallee, national chief of the congress.

"Today is a very emotional day for me and a very hopeful day for all off-reserve aboriginal peoples."

In his decision, Federal Court Judge Michael Phelan rejected the federal government's attempts to maintain a narrow definition of who can be considered Indian.

He waded through centuries of aboriginal history to look at definitions of who has been considered Indian in the past, and how they were treated — by native communities and by various levels of government.

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

"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," Phelan writes.

Estimates of precisely how many Metis and non-status Indians there are in Canada vary widely, but demographers say both populations are growing rapidly. Statistics Canada reported some 400,000 Metis in the 2006 census; specific ethnic data from the 2011 census isn't due for release until next year.

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."

Legal experts expect the federal government to appeal the decision, partly because its implications are major — and complicated.

If left to stand, the ruling would affect a wide range of provincial and federal policies, said Robert Janes, a Victoria lawyer who focuses on aboriginal issues but was not involved in the case.

Governments would now have a duty to consult with non-status Indians and Metis on changes to law and policy, he said. And they will have to revisit the scope of their social services, economic development and protections for aboriginals.

"This is going to require a lot of bureaucratic re-thinking and policy development, and it's going to be years of figuring this out."

Until now, he said, many non-status or Metis people have grown up in households where their half-brothers and half-sisters on reserves had access to hunting and fishing rights, or funding for post-secondary education — services they themselves were denied because of their parentage.

Instead, they were told they were a provincial responsibility, only to have the provinces tell them they were the purview of the federal government — leaving a growing number of people in a jurisdictional limbo.

The Congress of Aboriginal Peoples and several Metis 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 on-reserve First Nations members.

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 into agreements with the federal government.

Indeed, negotiations should start Friday when Harper meets with First Nations leaders on treaty and aboriginal rights, said Lavallee, who also argued she should be included in those talks because of the new status accorded by Tuesday's decision.

The decision should push the federal government to sit down and negotiate agreements on lands, resources, self-government and social services, the Metis Nation Saskatchewan said in a press release.

The federal government had little to say Tuesday, but hinted it would be considering an appeal.

"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 Metis 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 non-clarified fiduciary relationship."

But the federal government has a long history of trying to narrow down its responsibilities to aboriginal people and will likely be unwilling to simply extend First Nations rights and benefits to hundreds of thousands of extra people, said Janes, predicting many rounds of litigation to come.

"There's a fundamental clash of vision," Janes said.

"It's a big problem. This is not something that's going to be fixed with a tweak.... These fights are only going to ease up when someone takes a deep breath and says, 'OK, where will we take a re-think of all this?'"

Note to readers: This is a corrected story. An earlier story included figures for the number of Metis and non-status Indians in Canada that can't be confirmed.

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