Assigning benefits on the basis of heredity is not compatible with liberal democracy

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Appeared in the Globe and Mail, June 23, 2017
Assigning benefits on the basis of heredity is not compatible with liberal democracy

In the wake of National Aboriginal Day, it’s worth reflecting on how the feminist movement affects the character of the aboriginal (or indigenous) population. Under the Indian Act, membership in Indian bands, now called First Nations, was originally passed down through the male line; Indian women who “married out” lost their Indian status and their children were ineligible to become legal Indians.

Following the 1970 report of the Royal Commission on the Status of Women, the status quo came under heavy assault. A series of legal changes restored Indian status to tens of thousands of women and their children and grandchildren. Through Bill S-3, the Trudeau government is proposing now to enable the registration of all Indian women and their descendants who have lost status since 1951, when the Indian Register was created. However, the Senate aboriginal peoples committee recently amended the bill to push the date back to the first Indian Act (1876), a change the government says it will not accept.

Regardless of how this tussle ends, the combination of legislation and litigation will almost certainly continue to grant Indian status to ever greater numbers of people, and not only because of feminism. The largest First Nation in Canada is now the recently recognized Qalipu Mi’kmaq First Nation of Newfoundland. Other so-called “landless bands” are also struggling for recognition.

The logic of these developments is to allow anyone who can demonstrate any degree of Indian ancestry to apply for registration, i.e., to receive legal Indian status. We are not there yet, but things are clearly moving that way, particularly in light of the recent Daniels decision of the Supreme Court of Canada, which held that Métis are legally Indians under s. 91(24) of the Constitution Act, 1867.

This wouldn’t be an issue if it were merely a question of how people choose to label themselves, but it is much more than that because registration brings with it valuable taxpayer-funded benefits. The Non-Insured Health Benefits Program, worth about $1,200 a year (tax-free) for each person, covers each registered Indian as well as Inuit. Depending on circumstances, registered Indians may also qualify for tax exemptions, financial support for advanced education, and special hunting and fishing rights. At one time, being an Indian carried severe legal disabilities, such as not being able to vote or possess alcohol, but those disabilities have been repealed. Today, the balance of incentives surrounding legal status has switched from negative to positive.

The trend towards extension of status creates numerous practical problems. Rapid growth in the number of registered Indians increases budgetary pressures while diluting the impact of the Aboriginal spending envelope. Indigenous and Northern Affairs Canada spending per registered Indian decreased 16 per cent from 1998 to 2015. Some First Nations welcome the increased numbers, but many believe they cannot afford to provide services. They sometimes also fear that newly registered Indians who have lived off reserve for decades no longer share their traditional culture. There are now tens of thousands of registered Indians who are not members of any First Nation, and that number is likely to increase.

In short, changing social values, political pressures, and litigation are combining to produce a result that no one envisioned or intended: the emergence of a sizable indigenous population defined solely by ancestry and receiving substantial financial benefits because of that ancestry.

In many cases, the amount of indigenous ancestry will be small, but that's not the main difficulty. The chief objection is that for governments to assign benefits on the basis of heredity is not really compatible with the ethos of liberal democracy. Canada has worked hard for decades to expunge ancestry as the basis for public policy; do we really want to bring it back?