Winnipeg Free Press - PRINT EDITION

Aboriginal identity matters

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When Canada became a self-governing dominion in 1867, powers were divided between the federal and provincial governments, with Ottawa assuming responsibility for "Indians and lands reserved for Indians" under section 91 (24) of the British North America Act.

The idea of identifying one group of people for special treatment would be regarded as racist today, but aboriginals and Canadians have been stuck with their unhappy, dysfunctional relationship, which seems to get more complicated with time.

The BNA did not spell out who was an Indian or how one lost or gained such an identity, but over time certain aboriginals -- the Métis and non-status Indians, defined as those not registered with a specific band -- were deemed to be someone's else's responsibility.

On Tuesday, however, the Federal Court ruled after 13 years of legal wrangling that those groups are all Indians under Sect. 91 and therefore a federal responsibility. The reasons in the case of the Métis are complicated, but not in the case of non-status Indians, where the very name answers the question.

For their part, the plaintiffs, led by the Congress of Aboriginal Peoples, define non-status Indians as Indians "to whom, from time to time, the Indian Act did not apply but had either maternal or paternal ancestors who were Indians, or any person who self-identifies as an Indian and is mutually accepted by an Indian community, or branch or council of an Indian association or organization."

What's unclear and equally complicated is how the ruling will affect the roughly 600,000 aboriginal people who are not associated with a particular reserve.

The plaintiffs also wanted the court to rule the federal government owed non-status Indians a fiduciary duty, and that they had the right to be consulted and negotiated with on matters affecting their interests.

The court wisely ruled against such declarations, saying only that it was up to Ottawa to recognize its responsibilities and to negotiate or consult on specific issues that might come forward in the future.

Federal lawyers argued the case should be dismissed because it would resolve nothing, and would merely lead to new rounds of legal wrangling. But Ottawa did not present a strong case to support the idea status Indians are the only Indians with constitutional protection.

Ottawa doesn't need to do anything at this point but, if the court's ruling is not appealed, the implications of the decision should become clear once aboriginals without status and the Métis demand the rights, privileges and benefits enjoyed by their brethren on reserves, as well as the right to be consulted on relevant issues, and to enjoy a special, fiduciary relationship with the federal government.

Resolving those questions, including who represents non-status aboriginals, could take years, if not decades, but a possible outcome could easily include new funds for education, health-care services, hunting and fishing rights, and possibly housing allowances and other services.

The question of who is an Indian will then take on greater significance. It could result in millions of dollars being invested in urban aboriginal communities, such as Winnipeg, and uplifting a group that has traditionally been left to fend for itself.

Editorials are the consensus view of the Winnipeg Free Press’ editorial board, comprising Catherine Mitchell, David O’Brien, Shannon Sampert, and Paul Samyn.

Republished from the Winnipeg Free Press print edition January 9, 2013 A6

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