Winnipeg Free Press - PRINT EDITION

More services after ruling, Métis hope

But top court decision won't alter identity, group's leader says

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OTTAWA -- A court ruling declaring the federal government does have responsibility for Métis and non-status Indians should result in access to more federal services, but it won't change who the Métis are, the Manitoba Metis Federation's president vowed Tuesday.

"We're pleased but we're very careful," said David Chartrand. "We aren't Indians. We are Métis. This does not mean we are going under the Indian Act. We will never allow it."

An estimated 600,000 Canadians will be affected by Justice Michael Phelan's ruling, which declared Métis and non-status Indians are in fact "Indians" as defined by the Constitution Act of 1867. The ruling could pave the way for negotiations with Ottawa to provide millions of dollars in health and education services to these groups, as well as negotiate other rights.

However, Phelan did not specifically say what Ottawa is required to do because of his ruling.

"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 wrote. "That duty is not an open-ended undefined obligation but must be focused on a specific interest."

Chartrand said the ruling means Ottawa should stop treating Métis like second-class citizens and stop fighting with the province about who is responsible for them.

"We want to create modern-day agreements where (Ottawa) finally starts to treat us as equals," he said.

Local businessman Arnold Asham said it's difficult to comprehend at this point what impact the ruling will have on Métis and non-status Indians.

Asham, whose Asham Curling Supplies sponsors the Métis dance troupe the Asham Stompers, where he is billed as the lead dancer, said there are many Métis communities adjacent to First Nations communities and their daily circumstances are similar.

"You go into these communities, Métis or First Nations, and there is nothing to do there," Asham said.

Asham said it was 1982 when Métis and status and non-status Indians were recognized as aboriginal, adding Tuesday's ruling says the three groups are all Indian.

The case dates back to 1999, when the Congress of Aboriginal Peoples filed suit, arguing discrimination against non-status Indians and Métis by the federal government. They argued they are entitled to the same rights and benefits as status Indians, particularly with regard to health care, education and hunting and fishing rights.

Betty Ann Lavallée, head of the Congress of Aboriginal Peoples, said it's too soon to say what benefits, services or rights may arise from this decision.

"Let's be honest; it's not going to change it immediately. It's not going to change it tomorrow."

Both Lavallée and Chartrand hope Ottawa agrees to negotiate further benefits and agreements. Phelan suggests that is what should flow from this ruling.

Lavallée said after 14 years and millions of dollars spent fighting for the ruling, she's hopeful Ottawa will finally step up.

"We are talking about unlocking the potential of approximately 600,000 people," she said. "That's worth a lot more than handouts to us. It's an investment in Canada's future."

She has already reached out to Aboriginal Affairs Minister John Duncan to get the ball rolling on discussions.

But Ottawa is not committing to anything.

Jan O'Driscoll, a spokesman for Duncan, said the government is digesting the decision and has not decided what to do next. However, he noted Phelan's ruling is not specific about the interpretation or application of rights.

Chartrand said he expects the government to appeal but hopes Ottawa will be willing to negotiate regardless. "Here is an opportunity for Stephen Harper to create a legacy," he said. "At the end of the day, how much longer can Canada avoid this?"

Chartrand said on health-care benefits, Métis communities cannot access the same programs as are available to on-reserve aboriginals. That includes programs such as diabetes awareness and prevention, or travel benefits for doctor visits. Many elders often can't afford to travel to see a doctor so they simply don't go, said Chartrand. As a result, he said, Métis communities are among the least healthy in the country.

When it comes to education, Métis communities would like to see early-childhood education programs and support for schools to improve the quality of education, he said.

Until Tuesday's ruling, the province and Ottawa continually argued about who was responsible for such programs and little ever got done, he said.

The lawsuit also discussed hunting and fishing rights, however most of those have been dealt with since the case was first filed. In 2003, the Supreme Court of Canada upheld the Métis right to hunt without a provincial licence. Just a few months ago, the Manitoba government reached a deal with the MMF regarding fishing and hunting rights in Manitoba.

Non-status Indians are those who identify as First Nations but are not entitled to register under the Indian Act because they don't meet the definitions imposed by the act. They generally live off-reserve, but most First Nations people who live off-reserve do still have status under the Indian Act.

mia.rabson@freepress.mb.ca

Excerpts of Justice Michael Phelan's 175-page ruling:

"The evidence concerning non-status Indians establishes that such persons were considered within the broad class of "Indians." The situation regarding Métis was more complex and in many instances including in the Red River area, Métis leadership rejected any inclusion of Métis as Indians. Nevertheless, Métis generally and over a greater area were often treated as Indians, experienced the same or similar limitations imposed by the federal government and suffered the same burdens and discriminations. They were at least treated as a separate group within the broad class of 'Indians.' "

"In more recent times those deprivations have been acknowledged by the federal government: The Métis and non-status Indian people, lacking even the protection of the Department of Indian Affairs and Northern Development, are far more exposed to discrimination and other social disabilities. It is true to say that in the absence of Federal initiative in this field they are the most disadvantaged of all Canadian citizens."

"One of the results of the positions taken by the federal and provincial governments and the "political football - buck-passing" practices is that financially (Métis and non-status Indians) have been deprived of significant funding for their affairs. In 1982-1983, of moneys spent for natives, 79% of federal moneys and 88% of provincial moneys went to status Indians despite the fact that the MNSI population (even with its definitional issues) exceeds the status Indian population."

"Non-status Indians and Métis were differentiated from others in Canadian society, particularly Euro-Canadians, because of their connection to this racial classification. To the extent that they were discriminated against or subjected to different treatment, such as in schooling, liquor laws, land and payments (as detailed earlier), it was based on their identification with or connection to Indian ancestry. The single most distinguishing feature of either non-status Indians or Métis is that of "Indianess," not language, religion or connection to European heritage."

"The Supreme Court, however, specifically rejected the notion that to be a s 91(24) Indian, one had to live in a tribe, on a reserve or to have rights in or to land. However, the claim to rights in land and the attempt to extinguish such rights shows, particularly in respect of Métis, a recognition that Métis had a sufficient connection to this native heritage to fall within the broad class of "Indian."

"This court has addressed the matter of how Métis were considered by government just before and not long after Confederation. As mentioned earlier, the Métis were not treated homogeneously; however, the evidence in this court is that Métis were considered even as early as 1818 as being "Indian" in the widest sense."

"The court is not prepared to make some general statement concerning fiduciary duty. 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 nonclarified fiduciary relationship."

Republished from the Winnipeg Free Press print edition January 9, 2013 A5

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