Pubdate: Tue, 19 Apr 2016
Source: Record, The (Kitchener, CN ON)
Page: A7
Copyright: 2016 Metroland Media Group Ltd.
Author: Thomas Walkom


In decisions released last week, Canada's Supreme Court has 
accomplished two things.

First, it has cocked a snook - again - at the law-and-order agenda of 
Stephen Harper's previous Conservative government.

Second, it has significantly expanded the number of Canadians 
eligible for full aboriginal status under the Constitution.

On Friday, the court unanimously swept aside provisions of the former 
Conservative government's Truth in Sentencing Act that limited a 
judge's ability to give credit for time served in pretrial detention.

In a second decision that same day, the majority struck down another 
Conservative law that required a minimum sentence of at least one 
year for previously convicted drug traffickers.

In both cases, the top court said, restrictions on judicial 
discretion were so broad as to be unconstitutional.

Tellingly, the court didn't rule that mandatory minimum sentencing 
laws are always contrary to the Charter of Rights and Freedoms.

It just said that these particular Conservative laws were.

The far more important court decision came Thursday. That's when the 
Supreme Court ruled unanimously that Metis and non-status Indians are 
Ottawa's responsibility and must be treated as "Indians" under the 

Among other things, that makes members of the two groups eligible for 
certain kinds of healthcare and tax exemptions available now only to 
the Inuit and residents of First Nations communities.

But the court also confirmed, in an almost casual manner, that Ottawa 
has a constitutional duty to consult meaningfully with 
representatives of the Metis and non-status Indians before doing 
anything that might impinge on their rights.

The justices said they didn't have to formally restate that 
obligation in their decision because it was already settled law.

But it will act at the very least as a reminder to Ottawa, which has 
not always been anxious to include Metis and non-status Indians in its talks.

Thursday's decision was the latest in a series of important court 
rulings that have interpreted and expanded the rights of indigenous 
peoples in Canadian law.

On the one hand, these decisions have righted historical wrongs and 
recognized the constitutional fact that Aboriginal Peoples enjoy 
special rights.

On the other, the obligation to consult has made certain kinds of 
resource and infrastructure projects more difficult and more costly.

This isn't necessarily bad. Some resource developments stymied by 
indigenous opposition, such as the proposed Northern Gateway pipeline 
from Alberta's oilsands to the Pacific coast, should never have been 
contemplated in the first place.

But the requirement for indigenous input is a fact of life, one that 
affects not only projects that other Canadians don't like but ones 
that they do favour.

And now it has been made clear that the requirement to consult 
meaningfully must extend to two new groups.

One problem Ottawa will face over time is who should be included in 
those groups, estimated by Statistics Canada to number about 666,000 in total.

The top court was remarkably blase about this problem, noting in its 
decision that "there is no consensus on who is considered a Metis or 
non-status Indian, nor need there be."

The term Metis, the court said, sometimes refers to those who can 
trace their ancestry to Manitoba's historic Red River community and 
sometimes to anyone of mixed European and Aboriginal heritage.

The term non-status Indian is even vaguer. It refers to people or 
their descendants who in the normal course of events might have been 
considered subject to the federal Indian Act but who, for one reason 
or another, either lost that status or never had it in the first place.

Exactly who qualifies to be considered Metis or non-status Indian, 
the court said, will have to be decided later, on a case-by-case basis.

Which is another way of saying that it passed the buck.

Still, for Canada's very active Supreme Court, it was a banner week. 
The justices yet again trashed a couple of ill-considered laws left 
over from Harper's time in office.

And they continued a judicial pattern that, for better or worse, is 
radically reinterpreting the relationship between aboriginal people 
and other Canadians.  
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MAP posted-by: Jo-D