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Court ruling on aboriginal people opens a Pandora’s box

There are up to a million more Indians today than there were yesterday.

Whether that's still the case a few years from now is far from certain. The federal government will doubtless appeal Tuesday's federal court ruling that up to a million Métis and non-status Indians qualify as Indians under Section 91(24) of the British North America Act. Almost certainly, the Supreme Court will have the last word on this.

But the decision of Mr. Justice Michael Phelan, though limited in scope, will have enormous consequences if upheld. It could lead to greater access to health, education and social programs for aboriginal Canadians.

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"It's a huge decision, in that it could have massive financial implications for the federal government," believes David Khan, a Calgary-based lawyer who specializes in native litigation.

It could also lead to the watering down of existing programs, endless litigation and cruel contests for control between status Indians and other aboriginal Canadians.

"Pandora's box" is a cliché. But this is one.

Judge Phelan has decided to right a wrong that the federal government itself acknowledged in a once-secret cabinet memorandum from 1972.

"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," the memorandum declared.

"It is fair to say that in the absence of Federal initiative in this field they are the most disadvantaged of all Canadians."

The federal government insists that it is only responsible for the welfare of status Indians and of Inuit. But provincial governments insist that Ottawa is also responsible for meeting the special needs of Métis citizens – originally people of French or Scottish and Indian heritage – and of people who, by marriage or by moving, have lost their status as Indians under the Indian Act.

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Several complainants, and the Congress of Aboriginal Peoples, took the government to court to make that point.

Despite being caught between jurisdictions and suffering decades of discrimination – the historical material in the ruling on "half-breeds" makes you cringe – Judge Phelan concluded the group of Métis and non-status Indians "has been able to maintain its identity and form national, provincial and regional associations claiming a potential membership of approximately 1,000,000 people."

Métis and non-status Indians, he believes, qualify as Indians under Section 91 of the BNA Act, provided they self-identify as such, and are recognized as such by a Métis or Indian group or organization.

This does not immediately confer upon them all of the rights of status Indians. Nor does it confer specific obligations on the part of the federal government – at least not yet.

It will be for future judges in future cases to decide what is owed to whom. And that's the problem with this decision.

However well-reasoned Judge Phelan's ruling may be in law, in practice it could turn out to be an unholy mess. Another constitutionally-validated voice would be at the table, pounding that table and demanding redress.

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First nations on reserve would fear having their funding slashed to accommodate off-reserve programs and services. Provinces could come to that table, demanding more federal funding to look after off-reserve aboriginal Canadians who are now, constitutionally, Ottawa's problem.

In the end, there could be less of everything for everyone, except lawyers.

The timing of the release of this decision is unrelated to the hunger strike of Theresa Spence, the Idle No More protests and the upcoming meeting between Prime Minister Stephen Harper and first nations chiefs. Sometimes things just happen this way.

But 2013 has overwhelmingly begun with aboriginal issues dominating the agenda. It could be a long year.

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About the Author
Writer-at-large

John Ibbitson started at The Globe in 1999 and has been Queen's Park columnist and Ottawa political affairs correspondent.Most recently, he was a correspondent and columnist in Washington, where he wrote Open and Shut: Why America has Barack Obama and Canada has Stephen Harper. He returned to Ottawa as bureau chief in 2009. More

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