Canada: New Developments in Indigenous Status

The past week in Canada has seen the promise of some major new transformations in the current position of Aboriginal peoples. For those readers not too familiar with the Canadian situation, it is important to note that there are two basic "classes" of Aboriginals: (1) those officially registered as "status Indians" who have legal rights to residence on reserves, with individual reserves referred to as "First Nations"--the Assembly of First Nations (AFN) is tied to this backdrop; and, (2) people who self-identify as Aboriginal, but who are "non-status" because they had a mother or grandmother who married a non-native--the Congress of Aboriginal People, which rarely receives anywhere as much media attention as the AFN, is tied to this population.

In Canada, the law had descent reckoned through the paternal line, even when this went against particular aboriginal societies' custom of reckoning descent through the maternal line. As a result, a vast number of Aboriginals lost the right to reside on reserves, and most ended up in cities. In the meantime, Aboriginal men were entitled to marry non-native women, and those women obtained the right to reside on reserve, so that some persons with "status" may not even be Aboriginal. This double-pronged erosion of reserve-based nations may be coming to a final end. (The Indian Missions of Trinidad were regulated by an even more severe version of this system--where all "mixed race" offspring were officially de-Indianized and lost rights to collective lands that had been granted to their parents and grandparents. Both Trinidad and Canada were governed by the British for a period of time.)

On Saturday, June 16, 2007, Bill Curry writing in The Globe and Mail ("Indian status can be traced through mother, court rules"), tells us the following:

The B.C. [British Columbia] Supreme Court has wiped out one of the most contentious aspects of the federal Indian Act, striking down part of Ottawa's definition of a status Indian and opening the door to hundreds of thousands of new applications for native services.

The court rejected part of the existing legal definition on the grounds that it discriminates against Canadians who trace their aboriginal roots through their female relatives rather than their father or grandfather.

The ruling alters the federal law that has long created two classes of aboriginals in Canada: the 767,000 who fit the definition of status Indian and the several hundred thousand more who don't.

The 2001 census found 976,000 Canadians who self-identified as aboriginal and more than 1.3 million who said they had aboriginal ancestry.

Many aboriginals who failed in their requests for status will now have a much better chance of success, said Beverley Jacobs, the president of the Native Women's Association of Canada.

"This opens the floodgates," she said. "I don't think we could have asked for a better judgment."

Aboriginals with status qualify for prescription drug coverage and can apply for postsecondary assistance.

The Federal Government of Canada disingenuously claimed that it previously addressed the issue of patriarchal discrimination in the Indian Act by passing Bill C-31 in 1985. What was the "major change" of that Bill? It simply pushed the cut-off line to second generation offspring of unions between natives and others, and still reckoned descent along paternal lines. That minor change did however return status to 175,000 individuals. This latest court ruling has the effect of nullifying Section 6 of the Indian Act, that section which pertains to who can claim to be an "Indian" (the subject of an upcoming seminar in Montreal).

In the same week, the Federal Government committed itself to setting up, in conjunction with the Assembly of First Nations, an impartial tribunal for resolving the more than 800 land claim cases that remain unresolved in Canada, that on average have been the subject to legal disputes lasting 20 years, with some much longer than that (see The Globe and Mail, June 13, 2007, "New land-claims process in works"). This would mean that the Federal Government could no longer act as defendant, judge, and jury all at the same time. While there is no way of predicting future rulings on so many cases, if one were to assume that there will be much more land added to the current land base of First Nations reserves, but also many more persons with status as outlined above, the net effect might be bigger numbers on all fronts, but not necessarily more land per person. If, on the other hand, the current size of the reserve land base were to remain roughly the same, but the numbers of persons with status vastly increased, it could serve to effectively crush reserves under their own weight. The situation where a boon becomes bane is not all that uncommon in Canada, as in the case of select reserves suffering from high rates of alcoholism and substance abuse suddenly finding themselves awash in cash from settled claims or other compensation packages, precisely at the time that those particular Aboriginals can least handle the new resources, and where the temptation to squander is higher than it might otherwise be.