Tasha Kheiriddin: The problems with the Daniels decision
Tasha Kheiriddin | Jan 10, 2013 12:01 AM ET | Last Updated: Jan 9, 2013 6:28 PM ET
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Who is an Indian? According to the Daniels decision rendered by the Federal Court this week, the category includes a lot more people than previously thought.
The judgment concludes that Métis and non-status Indians are “Indians” within the meaning of the Constitution Act, 1867. By extension, they could be eligible for rights and benefits granted to many status Indians, including hunting and fishing privileges, tax exemptions and post-secondary educational assistance.
Even though the judgment may be appealed to the Supreme Court, it is likely to have two immediate effects: increasing traffic on genealogy websites, as Canadians track down potential native ancestors, and undermining any sense of equal citizenship in this country.
The concept of Indian “status” already divides Canadians into two camps, discouraging aboriginal citizens’ sense of belonging to the Canadian nation. The Daniels judgment would extend that sense of disengagement to an additional 400,000 people, including 200,000 recognized Métis persons and 200,000 Indians living off reserve.
That number could rise, however, since the 2006 census reveals that 200,000 additional persons self-identify as Métis, but are not officially recognized by provincial Métis organizations. These groups foresee a spike in membership applications, including from persons seeking purely financial benefits. David Chartrand, president of the Manitoba Métis Federation, told the Winnipeg Free Press that, “We don’t want people coming out of nowhere saying, ‘Wow, there’s a place I can get a free ride here.’ ”
At the same time, Métis organizations have a vested interest in growing their numbers, regardless of individuals’ motivations, because higher numbers mean more political clout.
Currently, each provincial association sets its own rules for membership. So how would Ottawa decide who is Métis? Would the government accept the decisions of bodies that are completely unaccountable to voters and taxpayers? Or would it set up a parallel registry and bureaucracy that would inevitably be denounced by the Métis community?
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Another impact of the judgment, should it stand on appeal, lies with the recognition of Indians living off-reserve. By breaking the link between status and residency, the ruling might prompt more First Nations members to move to urban Canada, where they generally earn higher incomes. While leaving the reserve could entail a loss of cultural identity, this loss must be weighed against the economic gains of members and their children, who would have a better chance of moving out of poverty.
That’s good news for aboriginals who leave the reserve, but not for those who stay. By producing a brain drain, the judgment could undermine the economic viability of reserve communities, as more ambitious and higher-achieving members move, leaving less able and well-off members behind.
For the federal government, this judgment represents payback for decades of inadequate action on aboriginal issues. Instead of implementing policies to encourage economic development and self-sufficiency, such as those proposed by the current government, generations of politicians preferred to avoid the attendant controversy, and by default passed the buck to the courts.
It is ironic that the ruling comes at a time when Ottawa is finally taking concrete steps to improve the economic prospects of First Nations in Canada and require greater accountability of their leaders.
True, the Conservative government is far from perfect. It has failed to be financial transparent on a series of files, from the G20 Summit to the F-35 debacle. It has pushed omnibus bills through the House of Commons, thereby limiting debate on important issues. It has not yet balanced the nation’s books, while increasing spending on a range of questionable projects.
But on the First Nations file, it is doing what so many other equally imperfect governments have failed to do before it: seek to end the dependency that holds Canadian aboriginal communities back. This ruling will not help in that quest, and should be appealed.
National Post
tjk@tashakheiriddin.com
