More gained than lost, in court ruling on native rights

Canada's four western provinces are home to roughly 60 per cent of all First Nations people, according the previous Canadian census. In Alberta, that's just under six per cent of the total population.

The national proportion of native peoples is reported at just under four per cent.

We can expect that proportion to rise, though, given a Federal Court ruling that First Nations people living off-reserve and card-carrying Métis people have status to rights under the Indian Act.

We can't know right now what that ruling really means to individual people, or what it might cost general society in financial terms.

But it is reasonable to surmise for the present that the ruling is as much spiritual as economic, and that it probably means more to many people's sense of personal identity than it does to the general pocketbook.

When news reports tell us rather obliquely that the question of what “native rights” entails is complicated — and not much more than that — the reporters aren't simply being lazy.

The truth is, the broad definitions of native rights is open to interpretation, especially when we begin to talk about what this means to individual livelihoods, and what off-reserve native people and Métis stand to gain under the court ruling.

The first right generally mentioned is a right to land. But as recently as 1977, Canadian courts would not rule that native bands have actual title to lands they claim as theirs. 

Native peoples have a right to resources and subsistence from these lands, and the courts have upheld that the federal government does indeed have a legal obligation to consult (and compensate) bands when development projects cross their borders, for instance.

But there's no actual ownership. So what does “land rights” really mean, and what have off-reserve and Métis people really gained here?

Native peoples have the right to self-government, and the right to their own culture, language, tribal laws and traditions. But these rights do not supersede the Criminal Code or human rights laws. Again, what have non-reserve native peoples and Métis gained here?

Nor does the right of self-government absolve band leaders from obligations to obey rules for transparency and accounting for federal funds received.

Not even tax law changes for off-reserve native people and Métis. Money earned on reserves is earned tax-free. Goods purchased on reserves are GST-exempt, as a goods bought off-reserve and transferred in.

All else is fully taxed. Same old, same old.

In fact, some leaders have argued that the very fact native peoples are going to Canadian courts for redress undermines their claim of being a sovereign people. Why go to a foreign court to verify what is yours by birth?

There may accrue some new housing and services benefits to native people off-reserve, but that's hardly the onerous tax burden that people are trying to make us afraid of.

So what does this momentous court ruling really mean?

This is especially ambiguous for Métis people. In 1982, The Supreme Court outlined three broad factors to identify Métis rights-holders: self-identification as a Métis individual; ancestral connection to an historic Métis community; and acceptance by a Métis community.

Pretty vague standards, it seems, and unlikely to produce a Métis population boom in light of this court ruling. As in most things, we'll see.

Hunting and fishing rights for natives and Métis have already been defined by the courts, and Canada already has the legal ability to limit those rights for conservation purposes.

If this court ruling leads native people to demand better leadership for themselves, and more equitable use of resources that are theirs by right, then we've really got a victory here.

If off-reserve native people and Métis can persuade the broader native population that they will lose no status when they take greater control of their own lives, that's a step forward.

When stewardship of land and resources is more than just asking for money, but becomes a true partnership between band members and their leaders, between leaders and Canada as sovereign peoples, then something big is accomplished.

Nor should anyone have to give up their birthright when they cross a line on a map.

So what changed this week? Who knows? But more appears to have been gained than lost, for all of Canada.