The Federal Court of Appeal has upheld a ruling from last year that said Ottawa is constitutionally responsible for the 400,000 Métis in Canada as a distinct aboriginal group, but overturned a similar decision about non-status Indians.
The appeal court decision released Thursday will likely be appealed to the Supreme Court. But, if it is ultimately upheld, it means the government would have to negotiate with the Metis on outstanding rights claims and other potential benefits in the same way it now must deal with the First Nations and the Inuit.
“This is a huge win for the Métis,” said Jason Madden, the lawyer for the counsel for Manitoba Métis
Federation. “It answers one of the key questions which has been one of the obstacles put in front of them, whether it is dealing with their rights, claims, programs and services available for them. Now it is unquestionable that the federal government has primary responsibility to deal with the Métis.”
But the appeal court also found that, if non-status Indians are to be counted among Canada’s aboriginal people, they are to be included with the Indians. Which means the government may still have to negotiate with them as they do with members of the First Nations, but the court left open the question of whether non-status Indians are entitled to the same rights and benefits as status Indians.
"Non-status Indians" commonly refers to people who identify themselves as Indians but who, because of mixed ancestry or any of a number of other reasons, are not entitled to the programs, services, rights and benefits that flow to status Indians under the Constitution, the Indian Act and the treaties that have been negotiated with First Nations.
Aboriginal Affairs Minister Bernard Valcourt said that, given complex legal issues raised by the previous Federal Court decision, it was prudent for Canada to obtain a decision from a higher court. “We are pleased that the court granted part of our appeal,” Mr. Valcourt said in an e-mail, “and we are reviewing all elements of today’s decision to determine next steps.”
The original ruling last year by Justice Michael Phelan of the Federal Court said the Métis and “non-status” Indians qualify as “Indians” under the 1867 Constitution Act.
Because there are possibly one million Métis and non-status Indians, which is just slightly more than the number of status Indians Ottawa recognizes, the decision had the potential of doubling the number of Indians for which Ottawa is constitutionally responsible and could force Ottawa to make radical policy changes, add billions in new spending, or both.