By Philip Fernandez
On January 8, 2013, Mr. Justice Michael Phalen of the Federal Court of Canada ruled that Métis and Non-Status Indians are “Indians” as defined under Section 91 (24) of the British North America Actand, therefore, must have their rights and claims honoured by the Crown and its government. The Federal Court hears cases that are launched against the federal government.
The case began in 1999 when the Congress of Aboriginal Peoples and several Métis and Non-Status Indians led by the late Harry Daniels, took the federal government to court. They alleged discrimination on the basis that they were not considered “Indians” under a section of the Constitution Act. The Congress of Aboriginal Peoples (formerly the Native Council of Canada) is a political organization that represents Aboriginal people living off-reserve in Canada.
Judge Phalen ruled that Métis — who for the most part are the descendants of marriages between Scottish or French men and First Nations women during the period of the fur trade — and First Nations people who have lost their status as a result of marrying non-First Nations men or moving outside their reserve are “Indians” as defined in historic documents and on the basis of expert testimony.
He ruled that the rights of Métis and Non-Status Indians must be based on membership within Nations or within a Treaty group, not on the basis of a narrow legal definition within the Indian Act.
Judge Phalen said, “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.”
It is noteworthy that the Judge suggests the refusal of the federal government to recognize the rights of the Métis and Non-Status Indian peoples is longstanding. In 1972, during the time of the Trudeau Liberal government, it was known that Métis and Non-Status Indians, who were “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 Canadians.” The federal government now is continuing to follow the deliberate tactics of divide and conquer and discrimination against the almost one million Métis and Non-Status Indians, implementing the 19th century colonial policy of racist oppression and genocide against all Aboriginal peoples, which is meeting the stiffest resistance today.
The National Chief of the Congress of Aboriginal Peoples, Betty Ann Lavellée, stated that this case is about “fairness, dignity, self-worth.” She pointed out that her organization spent more than $2 million over the past 14 years in court costs and that the money the federal government spent trying to have the case thrown out could have been used in “addressing some of the key issues that the court decision speaks to.” The initial response of the Harper Government is it will “study the decision.” Given the reluctance of the Harper government to recognize the rights of the First Nations or anyone else except those of the rich minority in Canada and their hired guns, it is expected that the federal government will appeal the decision to the Supreme Court.
Nonetheless, the Federal Court decision in favour of the Métis and Non-Status Indians is a victory for the more than 400,000 Métis and 550,000 Non-Status Indians in Canada. It is also a victory for the First Nations and the entire Canadian people who are engaged in a battle for the recognition of their collective rights and a society that recognizes and guarantees the rights of all on the basis of their being, including the hereditary, treaty and constitutional rights of the Indigenous peoples of this land.
(Photos: H. Manitowabi, C. Kimewon)