Metis victory highlights mistakes in law

(Fotolia.com)

(Fotolia.com)

John Robson, Parliamentary Bureau

, Last Updated: 12:54 PM ET

A judge just decided to double Canada's Indian population and see what happens. But don't blame the ruling. Blame the law, which cares what race you are.

The word "Indian” is a key legal term because Section 91 clause 24 of Canada's Constitution Act, 1867 gives the federal government sole responsibility for "Indians, and lands reserved for the Indians".

A group of plaintiffs argued that the term "Indian" in the Constitution was broad rather than narrow and Judge Michael Phelan of the Federal Court decided the evidence, from pre-Confederation to post-charter days, supported them.

Read his ruling and I think you'll agree. Unfortunately I think you'll also agree the ruling has two major problems. It gave people significant rights without identifying either the rights or the people.

The plaintiffs alleged being deprived of "Indian" status meant "deprivations and discrimination in the nature of: lack of access to health care, education and other benefits available to status Indians; lack of access to material and cultural benefits; being subjected to criminal prosecutions for exercising Aboriginal rights to hunt, trap, fish and gather on public lands; and being deprived of federal government negotiations on matters of aboriginal rights and agreements." But in awarding them that status the court simply authorized them to pester the feds.

Even worse, it didn't say who got them. It gave Metis and non-status Indians "Indian" status without doing anything to settle who belongs in either category, already bitterly disputed before it carried legal privileges.


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