Aboriginal Issues Primer

(I apologise for the wonky formatting that I can't quite get rid of, but typing this up again ain't gonna happen)

The Métis

The Métis of Canada are a legally recognised Aboriginal people under s.35 of the Constitution Act of 1982.  However, there is still a lot of confusion about who the Métis are, and in many cases, outdated definitions of ‘mixed blood’ prevail in people’s minds.

The Métis did begin as the offspring of European men and Aboriginal women.  However, modern day Métis are not ‘created’ by intermarriage between indigenous peoples and non-indigenous peoples. 

“Over 300 000 people self-identify as Métis in Canada. Most Métis people today are not so much the direct result of First Nations and European intermixing any more than English Canadians today are the direct result of intermixing of Saxons and Britons. The majority of Métis who self-identify today are the direct result of Métis intermarrying with other Métis.” [1]

“The term “Métis” in s.35 of the Constitution Act, 1982 does not encompass all individuals with mixed Indian and European heritage; rather, it refers to distinctive peoples who, in addition to their mixed ancestry, developed their own customs, and recognizable group identity separate from their Indian or Inuit and European forebears.  A Métis community is a group of Métis with a distinctive collective identity, living together in the same geographical area and sharing a common way of life.” [2]

Defining the Métis has been a difficult legal exercise for many years.  At times, Métis persons have been included within the meaning of “Indians” in s.91(24) of the Constitution Act 1867.  Generally in those cases, the person in question was found to be leading an “Indian way of life”.  More often though, the Métis have not been considered Indian.  It wasn’t until R. v. Powley[3] that any sort of consistent legal definition was created.  That decision laid down a general groundwork to determine who is Métis.  It comprised essentially of three elements:

-          Self-identification as Métis

-          Is of historic Métis nation ancestry

-          Is a member of a contemporary Métis community

While this definition helps clarify the issue, it doesn’t completely do away with ambiguity.  “Métis communities” both historical and contemporary are being ‘validated’ on a case by case basis.  Intense amounts of research is being done all over Canada by Métis organisations, and by those with an interest in disproving Métis claims, in order to determine which communities can be legally defined as Métis or not.  There are some which have fairly settled status, but others, such as Métis communities on the East Coast, are very controversial. 

Métis rights

The Métis do not have Status.  Again, only Status Indians have Status.  At most, Métis people will have membership in a regional or national Métis organisation.  Membership rules vary from organisation to organisation, but the Powley decision has ensured that membership rules must conform to the legal definition, or the organisation risks undermining its own rights claims by giving membership to those who would not be found legally Métis.

The issue of Métis rights is an emerging one.  In cases dealing with First Nations people, an Aboriginal right has to undergo the Van Der Peet[4] test in order to be affirmed by the court.  That test looks at whether a practice existed pre-contact and was ‘integral to the distinctive culture’ of the particular group in question.  Some First Nations would have practiced commercial fishing, for example, while others didn’t until contact.  The Van der Peet test would only allow the former, not the latter to be recognised as an Aboriginal right.

Since the Métis didn’t exist until contact, the Powley decision used a ‘modified Van der Peet’ test, which asks if the practice existed pre-control (pre-Crown sovereignty, or perhaps pre-actual control even after sovereignty, that point hasn’t been decided yet). 

Essentially what this means is that there are no ‘blanket’ Métis rights.  So even though Métis rights are constitutionalised, the box is somewhat empty at the moment.

[1] Métis people (Canada), Wikipedia online: <http://en.wikipedia.org/wiki/M%C3%A9tis_people_%28Canada%29> , [accessed June.21, 2010].

[2] [url=http://www.canlii.org/en/ca/scc/doc/2003/2003scc43/2003scc43.html]R. v. Powley[/url], [2003] SCC 43.

[3] Ibid.

[4] [url=http://csc.lexum.umontreal.ca/en/1996/1996scr2-507/1996scr2-507.html]R. v. Van Der Peet[/url], [1996] 2 S.C.R . 507.

Federal/Provincial Authority

Canada has never explained how it is that the Crown gained sovereignty over lands within Canada, it is simply a legal axiom.  All of the early theories have been soundly rejected in case law.  These lands were neither empty (terra nullius), nor conquered. Nonetheless, the legal ‘fact’ of Crown sovereignty is the starting point from which all Aboriginal law cases must begin.  (hence the limitations in approaching these issues from within the Canadian legal system).

However, there are two Crowns in Canada...federal and provincial.  So who has ‘authority’ to deal with Aboriginal people?

Section 91(24) of the Constitution Act 1867[1] gives exclusive legislative authority to the federal parliament over “Indians, and Lands reserved for the Indians.”

Well, glad that cleared everything up!  Obviously, the Feds are entirely responsible for all Aboriginal peoples.

Oh.  Wait.

While it is true that the Feds are in the main responsible for Indians, that does not exclude the provinces from having authority as well.  Section 88 of the Federal Indian Act[2] permits provinces to pass laws of “general application” that apply to Indians too.  So provincial Traffic Acts apply to Indians as well as non-Indians, even on Reserve.  What the provinces cannot do is pass laws which affect “an integral part of primary federal jurisdiction over Indians and lands reserved for the Indians”. 

But wait!  We’re only talking about Indians here!  What about other Aboriginal peoples?

Well, the Inuit are not governed by any piece of federal legislation at all.  The Métis are generally dealt with through the provinces, as the Federal government has not recognised any obligation to them. 

What this means is, the entire issue is a mess.

For Status Indians, education and health care are provided via the Federal government.  The Feds are not particularly set up to provide those services, however, as health and education are provincial issues.  What usually happens is that the Feds provide the funds, the mass of paperwork to fill out, and the individual has to access education/health through the provincial structure.  More and more, First Nations are assuming control over their own health and education via negotiated agreements with the Federal government.

There are major issues with access to health and education under this regime.  For Inuit and Métis peoples, access is entirely through the province.

I won’t go into more detail on this right now, it’s just a brief overview.  However, one more important thing to know is that Aboriginal peoples cannot surrender their lands to the Provincial Crown, only to the Federal Crown.  That is why British Columbia has suddenly realised it doesn’t actually own the land it’s sitting on.  The province believed it had extinguished Aboriginal title, only to find that they never had the power to do so in the first place.

Caught with their pants down.

[1] [url=http://www.canlii.org/en/ca/const/const1867.html#distribution]Constitution Act[/url], 1867, 30&31 Vict., c.3 (U.K.), (R.S.C. 1985, App. II, No.5)

[2] [url=http://www.solon.org/Statutes/Canada/English/I/I-5.html]Indian Act[/url], R.S.C. 1985, c. I-5.

I wrote this last fall for a class, but also to have a ready-made, quick outline of status issues since it is one of the most misunderstood issues out there.

INDIAN STATUS

On this forum, my default term for First Nations, Metis and Inuit is 'Aboriginal'.  There are various terms that are used within the Canadian legal context, and because my purpose is to clarify the meaning of these terms, I do not wish to start using them interchangeably.  When speaking generally, I will use the term ‘indigenous’.  When referring to specific legal definitions, I will use the legislated terms.

Status versus Membership

Status is a legal definition, used to refer to indigenous peoples who are under federal jurisdiction[1].  The particular piece of federal legislation that defines status is the Indian Act[2], which was created in 1876[3] and has been updated many times since then.  Status then refers only to those indigenous peoples who fit the definition laid out in the Indian Act.

Membership is a much more complex issue.  It can refer to a set of rules created by an indigenous community, traditional or not, that define who is a member of that community.  It can also refer to those who are considered members of certain regional or national indigenous organisations.  It can be used in a much less formal and subjective sense, such as being part of an urban or rural indigenous group.

Obviously these definitions will overlap at times.  The most important thing to note is that having membership is not the same as having status.

Who is Aboriginal?

The term ‘Aboriginal’ came into legal existence in 1982 when it was defined in section 35 of the Constitution Act, 1982.[4] Section 35(2) defines the Aboriginal as including “the Indian, Inuit and Métis peoples of Canada”. [5] It is a general, catch all term that has gained legal status in Canada, and therefore is particular to the Canadian context.  The term ‘indigenous’ is another such catch all descriptor, but does not have the same national legal connotations.  Throughout this paper, I will use ‘Aboriginal’ in the legal sense only.

The Constitution Act, 1982 does not define ‘Indian’, ‘Inuit’ or ‘Métis’.  As we will see, the ‘Indian’ is defined by the Indian Act explicitly.  The other two terms, ‘Inuit’ and ‘Métis’ have been defined through case law, and have changed at times, depending on the interpretation and ruling of the court.  Even more confusing is the fact that non-status Indians are not mentioned in the Constitutional definition of ‘Aboriginal’, despite the fact that this growing group self-identifies as Aboriginal in census surveys.[6]  Therefore non-status Indians are not ‘Indian’ according to the Indian Act, but whether or not they are ‘Aboriginal’ according to the Constitution Act, 1982 is an issue that has not yet been satisfactorily resolved.  A common sense approach to this issue would allow us to use the legal term ‘Aboriginal’ to refer to non-status Indians as well, and any specific questions about who has jurisdiction or responsibility for this group can be addressed later on.

To sum up, ‘Aboriginal’ peoples in Canada are constitutionally defined as status Indians, Inuit, and Métis.  Being Aboriginal does not mean one has legal status; status refers only to Indians defined by the Indian Act.

Status

Status Indians are persons who, under the Indian Act are registered or are entitled to be registered as Indians.[7]  All registered Indians have their names on the Indian roll, which is administered by Indian and Northern Affairs Canada (INAC)[8].  Status Indians are entitled to certain programs and services not available to other Aboriginal peoples.

Bill C-31

There were various Federal policies over the years that caused status Indians to be removed from the Indian roll.[9] Some lost status when they gained a university degree, joined the Army, joined the priesthood, gained fee simple title of land, gained the right to vote, or married a non-Indian (this applied only to women).  Bill C-31[10]was passed in 1985, and was intended to reinstate status for those who had lost it.  In particular the Bill was supposed to reverse sexual discrimination that had cause Indian women who married non-Indians to lose their status while men who married non-Indian woman not only kept their status, but also passed status on to their wives.

Bill C-31 added new categories to the Indian Act, defining who is a status Indian, and who will be a status Indian in the future.  The legislation does not specifically refer to any sort of blood quantum, therefore there is no official policy that would take into account half or quarter Indian ancestry.  Nonetheless, ancestry continues to be a determining factor in who is a status Indian.

Section 6 of the Indian Act identifies two categories of status Indians, called 6(1) and 6(2) Indians.   Both categories provide full status; there is no such thing as half status.  The categories determine whether the children of a status Indian will have status or not[11].  A 6(1) Indian who marries a 6(1) or a 6(2) Indian will have 6(1) children.  A 6(1) Indian who marries a non-Indian will have children who have 6(2) status.  A 6(2) Indian who marries a non-Indian will have children with no legal Indian status.  If two 6(2) Indians marry, they will have children with 6(1) status.

One of the most criticised aspects of Bill C-31 was that it did not actually reverse the sexism inherent in denying women status if they married a non-Indian.  Women who had their Indian status reinstated under Bill C-31 have 6(1) status, but their children have 6(2) status.  Men who married non-Indian women and passed on status to their wives had children with 6(1) status.  Therefore, the children of ‘Bill C-31 women’ cannot pass on status to their children unless they marry a status Indian, while men who also married non-Indians have children who will pass on 6(2) status to their children.

Band Membership

There are a number of sub-categories that apply to status Indians.[12]  The first category is Band Membership. A Band is defined as a group of Indians for whom land has been set aside (a Reserve), or who have been declared a Band by the Governor General (no Reserve).[13] Some registered Indians do not belong to a Band.  This means that they are not entitled to any rights that would be held by members of a particular Band.  Nonetheless they still have status as ‘Indians’. 

What makes the issue of Band Membership even more confusing is that there are non-registered Indians who have Band Membership.  They have been admitted to the Band under its own membership rules, but do not have legal status as ‘Indians’. A person who fits the legal definition of ‘Indian’ who does not register as such, is not recognised as an Indian until s/he registers, and the Indian Act will not apply to that person until that point.  Therefore, membership in a Band does not guarantee one status, nor does lack of membership in a Band mean that one is not a legal ‘Indian’.

Treaties

Another sub-category distinguishes between Treaty and Non-Treaty Indians.  Treaties in this context refer to formal agreements between legal Indians or their ancestors and the Federal government, usually involving land surrenders.  The so called ‘numbered Treaties’[14]were signed between 1875 and 1921 and cover most of western and northern Canada.  British Columbia, with the exception of Vancouver Island is not covered by any historical Treaty. Other Treaties were signed in eastern Canada, but there are vast areas in the east that are still not covered by any Treaty. A number of modern (since 1976) Treaties have been signed in BC, and in other areas of the country, and negotiations are still underway to create more Treaties.  Some Treaties provided for Reserves and others did not.

Reserves

The final sub-category is between Reserve and non-Reserve Indians.  This does not refer to whether one actually lives on the Reserve or not, but rather describes whether a status Indian is affiliated with a Reserve.  Even though no historical Treaties were signed in British Columbia, there are many Reserves, while in the Northwest Territories which is covered by a numbered Treaty (and two Modern Treaties), there are no Reserves.

Conclusion

To sum up, status is held only by Indians who are defined as such under the Indian Act. Inuit and Métis do not have status, nor do non-status Indians.  There are many categories of status Indians, but these are legal terms only, and tell us what specific rights an indigenous person has under the legislation.  If an indigenous person is not a status Indian, this does not mean that he or she is not legally Aboriginal.  More importantly, not having status does not mean someone is not indigenous.

[1] J. S. Frideres, R. R. Gadacz, Aboriginal Peoples in Canada, 7th ed. (Toronto: Pearson Prentice Hall, 2005), at 25.

[2] [url=http://laws.justice.gc.ca/en/I-5/]Indian Act[/url], R.S.C. 1985, c. I-5.

[3] Supra note 1, at 23.

[4] [url=http://laws.justice.gc.ca/en/const/index.html]Constitution Act[/url], 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, s.35.

[5] Ibid, s.35(2).

[6] C. Cook, J. D. Lindau eds, Aboriginal Rights and Self Government: The Canadian and Mexican Experience in North American Perspective. (Quebec: McGill-Queen’s University Press, 2000), at 103.

[7] Supra note 2, at ss. 6, 7, 8, 9.

[8] Indian Status, Indian and Northern Affairs Canada, online: Government of Canada, <http://www.ainc-inac.gc.ca/br/is/index-eng.asp>, [accessed Nov. 2, 2009].

[9] Supra note 1, at 28 – 36.

[10] Bill C-31, an Act to Amend the Indian Act.

[11] M. Furi, J. Wherrett, Indian Status and Band Membership Issues, Political and Social Affairs Division: Parliamentary Information and Research Service Online: <http://www.parl.gc.ca/information/library/PRBpubs/bp410-e.htm#achangestx> , [accessed Nov.4, 2009].

[12] Supra note 1, at 27.

[13] Supra note 2, s.2.

[14] Supra note 1, at 28.

Awesome addition, Joey Ramone. The definitional tangles are so utterly ridiculous and hard to follow that it's no wonder most people (including many Aboriginal people themselves) don't really understand it.  It literally took me three plus years of legal training to wrap my head around this crap and no matter how I've tried, I've been unable to boil it down to less than what I've posted here.

If anyone has specific questions, they can post them in this thread too...I'm not saying we'll be able to answer all questions (I hope people have gotten a sense of how complex the issues are), but it would provide some focus.  It's hard for me, sometimes, to know what people don't know.  If that makes sense.

Alright, the tax exemption thing is so sticky...I may have to come back to that in a few days when I have some time again to post like crazy:)

Joey's additions to this are excellent, and I'm very thankful for them.

I've got three things to add today.  Now, normally I write these things in a more composed manner, with lots of really juicy legal or statistical sources.  I am not source free right now, but this isn't as clean as I'd like, I'm just saying.  I came up with these three things to say on what I call the "Triumverate of Complaints about First Nations" which are: free housing, free education and tax exemptions.  I've been posting them on various news sites that are covering the G20 native protests, because the regular crowd of racists are out in force. 

Feel free to use these, or help clean them up and refine them for posting in those situations.  Please ask for clarification, and when I have time (or Joey or anyone else can answer) the clarifications will be provided.  Until then:

FREE HOUSING: “First Nations people are five times more likely than non-Aboriginal people to live in crowded homes.”

http://tinyurl.com/fncrowding

This has a direct and negative impact on health, including the spread of infectious diseases such as tuberculosis which occurs at 8 times the rate of non-Aboriginals in some years.

http://tinyurl.com/24s8drq

Almost half of the population living on Reserve live in houses in need of major repairs, compared to about 17% among the non-Aboriginal (off-Reserve) population. Even off Reserve, First Nations people are 2.5 times more likely to live in substandard housing than non-Aboriginal people.

So yes! Free housing, what a joy! Perhaps you too could live three families to one home, waiting 10 years or more to get a ‘free house’ that is nearly falling down. You know, if you don’t get TB and die first.

FREE EDUCATION: First Nations students, like all elementary and secondary students in Canada, receive a free education, which is paid for through taxes given form in per-student amounts. What First Nations schools do not receive, however, are funds for operating costs. Provincial schools do.

First Nations schools are actually UNDERFUNDED. They do not receive funds (as non-Aboriginal schools do) for maintenance of infrastructure, inclusion of libraries, curricular development, vocational training or recreational facilities, operational costs and so on.

http://tinyurl.com/fneducation

The fact of the matter is, First Nations students are funded LESS than non-Aboriginal students for elementary and secondary levels.

Right now, only 4000 INAC funded Aboriginal students graduate from post-secondary institutions per year. This is directly related to low high-school graduation rates.

http://tiny.cc/fned

NO TAXES: Aboriginal people do indeed pay taxes. The only tax exemption First Nations (not Metis, not Inuit) receive are under section 87. The exemptions cover provincial sales taxes (as First Nations are a federal concern) and federal/provincial taxes on property on reserve. If you live off reserve, you are ineligible for this tax exemption. You can only get an income tax exemption if you work on reserve.

http://tinyurl.com/fntaxes
http://www.gov.pe.ca/photos/original/pt_rtn123.pdf

There are no exemptions for all the taxes factored into fuel, the purchase of various goods (recycling taxes on tires, ‘sin’ taxes, the taxes incorporated into any sort of travel etc etc etc).

You find me all the people living large because of the tax exemptions for working on Reserve (which have the highest unemployment in Canada), and on property on Reserve. The majority of Aboriginal people are now urban, and pay taxes just like everyone else.

I mean, come on. Corporations get more tax exemptions than First Nations.

A BIT MORE ON THE HOUSING ISSUE

How is it that the majority of people in Canada can afford to buy houses?

Mortgages.

What is the most common way of securing a loan such as a mortgage?

Collateral. Assets. Something the bank can seize if mortgage is defaulted upon. Most often the property in question is the house or land itself.

First Nations people do not own the land on Reserve in fee simple. Their form of real property ownership is unique, sui generis, and that property cannot be seized by the bank.

The consequences of this should be immediately obvious, but in case they are not, this means that mortgages are not available to most First Nations people living on Reserve. Nor are lines of credit (a common method of effecting minor or major repairs on housing, often secured against the value of the house or land), nor are second mortgages (another common method of raising funds to effect repairs).

In some cases, the band will issue Certificates of Possession, and the band itself will act as a sort of guarantor in order for a First Nations person to secure a mortgage. This has not been very successful until quite recently, and it still is not being accepted in most areas.

Oh but I’m sure none of that would stop the pull-yourself-up-with-your-boostraps folks, who genuinely do it all themselves, and never ever rely on tax-funded programs, credit, or any other ‘hand out’. Gosh, First Nations must just be...well, whatever it is you're accusing them of being.