2. The Imposition of Judicially Constructed Métis Identity
The issue of Métis identity is controversial. There are strong differences of opinion as to who can qualify as “Métis” for the purposes of self-identification, especially in terms of asserting Métis rights in the Constitution. The academic literature reflects this debate. There are References(p. 369) those who argue that the word “Métis” in section 35 is a proper name that refers only to the Métis Nation, the core of which has been said to be geographically located in Red River.
In 1870, under the leadership of Louis Riel, the Métis of the Red River territory (part of present day southern Manitoba) resisted Canada’s attempt to take control of the territory. The Métis were the majority of the population of the area and had the military advantage. Negotiations between Canada and the Métis of the Red River area led to a peaceful resolution and the creation of the province of Manitoba. Section 31 of the Manitoba Act, 1870 (which is part of the Constitution) included the promise of 1.4 million acres of land for the benefit of Métis families. For a short time the Métis were politically dominant in the new province, but due to an overwhelming influx of settlers from eastern Canada, the Métis lost the legislative majority and fell victim to Canada’s failure to implement the land provisions in a timely way, resulting in most Métis not being able to benefit from the land promised. Negotiations are currently underway between Canada and the Manitoba Metis Federation as a result of the positive finding in the Manitoba Metis Federation case that the Crown breached its duty in delaying the effective implementation of the promise of lands.
As mentioned above, some scholars argue that the only legitimate Métis are those who are descendants of the historical Métis communities that have kinship, social, and economic connections to Red River.6 Others interpret the term “Métis” conceptually as representing a state of identity based solely on mixed-ancestry heritage unburdened by any particular temporally rooted ethnogenisis trajectory of Métis collective belonging.7 Still others conceive of the term as reflecting a category of self-identifying mixed-ancestry communities that evolved into distinct communities separate from their First Nation and European ancestral roots. According to this view, the “Métis Nation” is therefore not just a proper name for a specific “Métis people”, but under the category approach the Métis Nation is also one among other potentially distinct Métis communities, nations, or peoples.
To the disappointment of those who advocated for a singular exclusive Métis Nation definition and to those who advocated for a more broader open-ended definition, the Supreme Court of Canada in R. v Powley instead opted to define the term “Métis” as a category representative of mixed-ancestry communities that have demonstrated continuity to a particular historical Métis community that existed prior to “effective European control” over the relevant territory.8 The Court stated:
The Powley decision also spoke to the issue of what an individual must prove in order to be considered a member of a Métis rights-bearing community. The Court identified three indicia. First, the claimant must self-identify as a member of a Métis community. Second, the claimant must present evidence of an ancestral connection to a historic Métis community. The Court did not restrict this connection to a test of blood-quantum, but also allowed for birth, adoption, or “other means” of becoming a member. Third, the claimant must show that “he or she is accepted by the modern community whose continuity with the historic community provides the legal foundation for the right being claimed”.10
There has been critical commentary on the Court’s indicia of proof of Métis belonging. Métis membership in Métis political organizations may include individuals who have been accepted by the community as Métis but for various reasons are unable to show an ancestral connection to a historic Métis community.11 The Powley decision has the potential of dividing Métis communities between those who have rights and those who do not. Unless the community has set out a mechanism for inclusion of such individuals through “other means”, they will become second-class Métis.12
Another concern with the judicially imposed Powley indicia relates to the imposition of identity criteria by a foreign institution from the perspective of Métis peoplehood independence. Such interference can be argued as a violation of Métis peoples’ human rights according to international human rights standards as defined in the United Nations Declaration on the Rights of Indigenous Peoples.13 Article 4 upholds the general right of self-determination of Indigenous peoples whereas Article 9 expressly recognizes the right of an Indigenous community to determine membership according to its References(p. 371) traditions and customs. Métis rights scholar Paul Chartrand insists that it is the Métis that have the right to decide who are Métis, and not the courts.14 However, in the context of Canada, Paul Chartrand recognizes the reality that determining Métis identity and membership will most likely involve negotiations between political representatives of the Métis and the Crown.15 But the determination of the boundaries of belonging must remain a political and not a judicial matter. Canadian courts have inappropriately assumed that they have a valid role in deciding questions of Indigenous peoplehood existence and whether an individual rightly or wrongly belongs to an Indigenous political collective in Canada.
Legal commentators often fall into the same limited colonial understanding. For example Thomas Isaac, in his monograph on Métis Rights, distinguishes the issue of Métis identity between its legal understanding and its political and social understandings.16 In doing so, Isaac contrasts Métis leaders as concerned with the question as a social and political issue as opposed to Canadian law-making institutions that are concerned with the question as a legal matter. In making this distinction, Isaac has adopted a colonial and racialized approach to the issue. Nowhere does Isaac acknowledge that the issue of Métis citizenship and belonging is very much a legal question within Métis law-making institutions and political traditions. He fails to recognize that the Métis have a legal tradition that has something to say about who can or cannot be a citizen of their political community.17 The legal determination of Métis identity is not the exclusive preserve of Canadian law as Isaac and others assume. Consequently his entire “legal” analysis, commendable as it is from within a colonial perspective, is found wanting, as such a limited colonial understanding of Métis identity and rights is of only marginal benefit to a comprehensive analysis of the issue expected in a post-colonial Canada.
To be fair, however, this is not a criticism that is applicable to only Isaac; it is an indictment of many legal scholars and their publishers that continue to comment on Aboriginal legal issues in Canada and fail to acknowledge its colonial and Euro-biased nature. This failure perpetuates an Aboriginal rights doctrine that does not address the racist heritage of governmental and judicial pronouncements. By putting on blinders, lawyers and judges can conveniently declare that the black letter law of Aboriginal doctrine is all that matters. It is beyond their professional competence, they may argue, to question the legitimacy of the law itself. Yet, there is no shortage of critical scholarship on Aboriginal rights doctrine.18 Arguably (p. 372) serious ethical issues are raised if lawyers remain ignorant of such critical perspectives of the law they are “objectively” applying.
At the time Powley was decided, the criteria of membership paralleled closely to the criteria adopted by the Métis National Council.19 Thus, the human rights concern over the courts determining membership criteria has not been a serious issue from the perspective of this national Métis political body. However, whether the membership criteria adopted by the Métis National Council reflects accurately Métis customs and traditions is debatable given the significance of membership movement between First Nation and Métis communities historically.20
Robert Innes notes that the Cree, Saulteaux, and Assiniboine were so closely intertwined that “multicultural” bands were common on the Prairies. Building alliances through marriage was encouraged, and the Métis welcomed their Indian kin into their buffalo hunting brigades and vice versa.21 “Given the remarkable overlap between Métis and other peoples, contemporary political policies based on mutual exclusion should not be projected back onto the history of Métis, Cree, Assiniboine and Saulteaux relations”.22 Porous identity and membership boundaries were commonplace and economically encouraged.23
For instance, it is a troubling issue how certain strictly applied membership codes concerning Métis identity have affected individuals who have chosen to accept Indian status to obtain certain benefits available only to status Indians such as non-insured health care benefits, but in doing so have been wrongly criticised as crossing identity and cultural boundaries.
The Indian Act defines who is an Indian for the purposes of the Act and thus it determines who has access to various federal benefits programs aimed at Indians who have status under the Act. Up until 1985, however, the Indian Act through various “enfranchisement provisions” caused many status Indians to lose their status as Indians for the purposes of the Act. The most notorious provision was the one that resulted in the loss of Indian status when an Indian status women married a non-status man. She and her References(p. 373) children lost status. This provision was removed in the 1985 amendments known as Bill C-31. As a consequence many who lost status under the former provisions were entitled to regain status by individual application. Some Métis took advantage of this opportunity to gain benefits under the Indian Act if they were qualified to gain status under Bill C-31. However, Métis living on Métis settlements in Alberta, for example, did not realize the full implications of gaining Indian status.
This is particularly the case when Métis chose to apply for Indian status and are successful but are then denied membership in Métis communities for doing so.24 In the Cunningham case, the plaintiff, Mr. Cunningham, was denied membership on one of the Alberta Métis Settlements because he obtained status under Bill C-31. Choosing Indian status in this context for the reasons explained by the plaintiff in the case had nothing to do with ethnic, cultural, or national identity. The Métis settlement was his home and he identified himself as Métis. Yet he was denied his right to be Métis and live in his own home on the settlement. Problematic still, is that if Cunningham chose to reject the status he received under the Indian Act and to regain membership in his long-time home community of Peavine, this culturally Métis individual would be unable to do so as there is no mechanism in the current legislation to voluntarily reject Indian status. In such scenarios, federal and provincial policy that view Aboriginal categories as closed and exclusionary become sources of personal and community injustice. Furthermore, I would argue that existing Métis political organizations should not exacerbate such injustices by insisting on strict membership boundaries, which are not consistent with Métis historical membership customs and traditions as noted above.
3. Métis as “Indians” within Section 91(24) of the Constitution Act, 1982
To achieve reconciliation with the Métis peoples of Canada requires the federal government to recognize the Métis as distinct peoples in contemporary society and not a phenomenon of the past. Métis studies scholar Paul Chartrand made an interesting remark in a keynote address about reconciliation being like an “ingredient that can be added to any relationship or transaction to make it better. Like french fries, ‘would you like some References(p. 374) reconciliation with that’?”25 What has become apparent in Métis discussions of reconciliation is that you can’t have reconciliation until you actually have a meaningful relationship to begin with. From the Métis perspective, the relationship with Canada has always been peripheral at best and non-existent at worse. Métis studies scholars have consistently noted that this denial of Métis peoplehood status has been the result of entrenched federal policy.26
Although 1982 marked a watershed moment in terms of Métis recognition due to their inclusion in section 35 of the Constitution, the federal government was nonetheless very reluctant to acknowledge the change in policy terms, claiming that the Métis are a provincial responsibility and not a federal responsibility. When Canada apologized to the victims of residential schools, on 11 June 2008, Clem Chartier, President of the Métis National Council, made it clear in his response to Parliament and Prime Minister Harper that the Métis are tired of being excluded; “the Métis Nation … wants in”, he stated to the politicians and the public at large.27 With the clarification that Métis are under federal jurisdiction, the Supreme Court of Canada in the Daniels case held that the federal government no longer has an excuse to deny jurisdictional responsibility for the Métis.28 Unfortunately, it took 17 years of litigation to create the main course for the accompanying french fries.
Daniels is a watershed case, the implications of which will likely take many years to fully appreciate. In rendering its decision the Supreme Court upheld the Federal Court trial decision of Justice Phelan and recalled his conclusions on the purpose of section 91(24). Justice Phelan held that 91(24) was intended to “control Native people and communities where necessary to facilitate development of the Dominion; to honour the obligations to Natives that the Dominion inherited from Britain … [and] eventually to civilize and assimilate Native people”.29 The Trial Court stated that at the time of confederation the Dominion intended to develop the North-Western territory, and as Métis occupied the North-Western territory, it is consistent with the described purpose of section 91(24) to define “Indians” as inclusive of a “broad range of people sharing a Native hereditary base”.30 The Supreme Court decided that the Constitution would be more coherent by holding that section 91(24) is synonymous with section 35(2) which defines Aboriginal peoples as including “Indians, Inuit and Métis”.
Given the decision, it is now clear which level of government has responsibility for policy involving the Métis. The jurisdictional uncertainty is finally resolved. Yet, Joseph References(p. 375) Magnet, lead counsel for Harry Daniels, was not assured that the federal government would necessarily act on its jurisdiction over the Métis if the court found them to be “Indians” under section 91(24). Hence he also asked the court for a declaration that the Crown has a positive obligation to negotiate and resolve outstanding claims rather than to await for Métis to assert them in a context where lack of financial recourses and alternative decision-making forums make it next to impossible to do so. He stated, “It is unlikely these negotiations will happen unless the court issues the third declaration, the obligation to negotiate with the representatives of the peoples concerned”.31 This declaration was not granted.32
However, the Supreme Court did emphasize the importance of Parliament’s obligation to “reconcile with all of Canada’s Aboriginal peoples”.33 Whether this translates into the federal government deciding to include the Métis within the existing comprehensive and specific claims processes remains uncertain.34 However, given the likelihood of court action based on discrimination for non-inclusion and the current government’s openness to working with the Métis, there is a good possibility that inclusion in existing processes or the creation of a new targeted process specifically for Métis and non-status claims will likely develop.35
Previously I had criticized the trial court decision of Daniels because of the implications on Métis peoplehood equality and self-determination.36 I expressed the concern about the potential incompatibility of being subjected to unilateral federal regulation with the principle of self-determination and free prior and informed consent recognized in UNDRIP. In the past, the ability of the federal government to rely on section 91(24) has proved disastrous to Indigenous rights and governance and was the source of authority to impose the residential school system. The danger of colonial power and the corresponding vulnerability to unilateral legislation by the federal government poses a serious potential risk to the freedom and integrity of Aboriginal peoples. I had hoped that when the Supreme Court of Canada decided Daniels, it References(p. 376) would reframe the nature of the power in section 91(24) to make it compatible with the principle of self-determination and UNDRIP’s provisions regarding free prior and informed consent.
I argue that section 91(24) has been mistakenly interpreted and assumed to be plenary in nature by the jurisprudence and treated like the other heads of power in section 91 and s 92 of the Constitution. Rather, I argue that based on a more comprehensive review of the historical evidence combined with a progressive interpretation of the Constitution as a “living tree” that section 91(24) should be read in a way that is consistent with the principle of free prior and informed consent. This would mean that section 91(24) has a built in limitation, and its use is dependent on whether the Aboriginal peoples that would be affected by proposed federal legislation have provided consent. This interpretation of section 91(24) was not expressly addressed by the Supreme Court in Daniels and remains a concern.
Yet, interestingly the language used by the Court in characterizing section 91(24) in Daniels seems to have indirectly reframed its purpose to reflect a qualified understanding of the power. Without explicitly stating that section 91(24) is limited in its plenary nature, the Court carefully connects the reconciliatory purpose of section 35 of the Constitution with a characterization of section 91(24) as expressing a federal responsibility to Aboriginal peoples, and avoids using the language of power and jurisdiction normally associated with division-of-powers analysis.37 The Court states that section 91(24) must be read in a broader contemporary societal context consistent with the purpose of section 35 as mandating the reconciliation of Aboriginal peoples’ interests with the Canadian state. Moreover, the Court held that section 91(24) is about the “federal government’s relationship with Canada’s Aboriginal peoples” which is markedly distinct from previous articulations of the section being a power over Indians as a subject matter of jurisdiction.38 This characterization of a federal head of power is qualitatively distinct from characterizations typical of other heads of power. For example it would be awkward to speak of the federal government as having a relationship with “navigation and shipping” or “Banking”. More to the point, the Court speaks of section 91(24) as “Parliament’s protective authority” in regards to Aboriginal peoples.39 Thus, without explicitly stating that the plenary nature of section 91(24) is limited or conditional, the tone and approach the Court takes in describing this power certainly is very suggestive that it ought to be understood in the context of a relationship of respect and References(p. 377) reconciliation that distinguishes it in a real and fundamental way from the other subject heads of power.
Although the potential exists (although very unlikely in today’s political climate) for Parliament to legislate policy that is harmful, negative, and discriminatory (which would likely be subject to Charter and section 35 challenges), such a policy of that nature may be found outside the scope of its power as such harmful legislation would be found contrary to the colour given to section 91(24) by the Court’s indirect reframing of its protective meaning. Restricting the power of the federal government this way would be a remarkable departure from the orthodox understanding of parliamentary supremacy where legitimacy in this context would be tested according to substantive understandings of justice and the rule of law in addition to the more accepted obligations of procedural legitimacy regarding the nature of the rule of law.
However, it is difficult to imagine a court, under a division-of-powers analysis, deciding that a clear legislative statement concerning Indian policy would be outside the scope of section 91(24) regardless of how harmful such legislation would be to the “Indian” population. Parliament has in fact relied on this power in the past in initiating a reign of discrimination, assimilation, and oppression for over 150 years.40 Hopefully the past will not repeat itself again. I would have been more comforted had the Court been more concrete and decisive in limiting the power of section 92(24) rather than relying on the “noblesse oblige than on what is obliged by the constitution”.41 The magnanimous and colourful language of responsibility, protection, and reconciliation are simply not included in the text of section 91(24) and are open to reinterpretation in future cases.
It remains difficult to reconcile Indigenous peoples as a third order of government equal to federal and provincial governments when the relationship is tainted by one government having a potentially unlimited power over the other.42 It conjures up images of the one group being inferior and dependent on the other. It is reparation for past harms and the rebuilding of Indigenous political independence and authority that should be the aim of Parliament’s obligations.
References(p. 378) 4. Métis as Ancestry: An Imprudent Definition of Indian
The definition of Métis identity for the purpose of claiming section 35 Aboriginal rights differs from how the Supreme Court defined “Métis” in reference to section 91(24). In Daniels, the Court interpreted “Métis” broadly in deciding that Métis are “Indians” for the purposes of section 91(24). The Court held that Métis “can refer to the historic Métis community in Manitoba’s Red River Settlement or it can be used as a general term for anyone with mixed European and Indian Heritage”.43 Thus a person who can prove some Indian heritage could claim to be Métis and thus “Indian” for the purposes of federal jurisdiction. However, he or she would not necessarily be Métis for the purposes of section 35 without proving that he or she was also a descendant of a historic Métis community as defined in Powley.
There are serious concerns with the broad definition of Métis as including “anyone with mixed European and Aboriginal heritage” adopted by the Supreme Court in Daniels.44 One relevant concern relates to whether the term “Indian” should be disconnected from the concept of Indigenous as embodying collective peoplehood experiences of colonization. The broad definition allows for “Indian” identity under section 91(24) based simply on Métis self-declaration and proof of mixed ancestry without showing any real connection to a distinctly Métis community or having been the victim of colonization policies of assimilation through increasingly restrictive Indian membership criteria or refusal of colonial governments to acknowledge any Indigenous identity. Simply declaring one is Métis because one has some distant ancestor that was Indigenous arguably should not result in such person, without more, being a constitutional Métis Indian under section 91(24).
Métis identity should not be based simply on ancestry alone. This is why noted Métis lawyer Jean Teillet is so critical of the trial decision in Daniels and preferred the Court of Appeal’s analysis.45 The Federal Court of Appeal commented on the identity criteria needed to be Métis for the purposes of being Indian in section 91(24):
I accept the submission of the Intervener Métis Nation of Ontario that a progressive interpretation of section 91(24) requires the term Métis to mean more than individuals’ racial connection to their Indian ancestors. The Métis have their own language, References(p. 379) culture, kinship connections and territory. It is these factors that make the Métis one of the Aboriginal peoples of Canada.46 …
It follows that the criteria identified by the Supreme Court in Powley inform the understanding of who the Métis people are for the purpose of the division of powers analysis. The Powley criteria are inconsistent with a race-based identification of the Métis.47
Professor Sébastien Grammond argues that it is obvious
that ancestry alone is not enough to constitute indigenous identity. A person may have indigenous ancestry, but may not have been raised within an indigenous culture, may not have suffered the disadvantages and oppression flowing from the injustices suffered by the indigenous peoples and may not self-identify as indigenous. This is why acceptance by an indigenous group plays a major function in most definitions of indigenous identity.48
In contrast, the Supreme Court explicitly over-ruled the Court of Appeal’s decision to narrow the scope of Métis for the purposes of section 91(14) by the addition of a community acceptance requirement. The Supreme Court justified its decision by distinguishing the purpose of section 91(24) from the purpose of section 35. Section 35 is about identifying rights-holders whereas section 91(24) is about the Government’s relationship with Aboriginal peoples, noting that this “includes people who may no longer be accepted by their communities because they were separated from them as a result, for example, of government policies such as Indian Residential Schools”.49 However, this conclusion raises additional questions when, for example, the exclusion is based on the Indigenous community’s own criteria of membership.
Such persons may be legitimately Métis, but it should not be because they are caught in an indeterminate broad net of who is an Indian. Rather their inclusion as Indian may be justified because of the impact colonization has had on their identity and membership choices and the socio-political context and history of the region or territory in References(p. 380) question. Forced identity migration due to restrictive definitions of who is or is not Métis by federal policy may have resulted in social, cultural, and family disconnection between such individuals and their ancestral roots and community. For instance, in the case of First Nation identity, the loss of Indian status due to assimilation policy in the Indian Act has seriously impacted cultural and community connection, as was noted in the Lovelace case.50 Residential schools broke community connections for many Métis and First Nations children. The ’60s scoop, which is the term given to the policy initiated in the 1960s of adopting Métis and First Nation children out of their home communities and placing them into White homes, was also significant in breaking cultural and community ties.
In term of Métis, federal policies that refused to accept Métis as distinct political and social polities forced some members to become First Nations or to become White.51 Also to avoid racism and backlash from mainstream White society, Métis to the extent they could, would go underground or integrate into White society to avoid negative social and economic discrimination and prejudice.52 Inclusion of such disaffected persons and communities within federal government responsibility under s. 91(24) may be appropriate as there are arguably moral and legal obligations that may exist in terms of repairing social and cultural connections and the harms that have resulted from federal identity polices.53
Although there is a need for a boundary marker of identity, it should not be limited to the requirement of “community acceptance” adopted by the Federal Court of Appeal in Daniels. Lack of community acceptance should not necessarily be a bar to falling under the protective authority of Parliament. However, there still needs to be some principled basis for restricting the scope of section 91(24) so as to exclude those that have not been negatively impacted by colonial identity policies. Evidence of such negative impact by colonial identity policies is arguably an alternative valid marker of indigeneity in a colonized societal context.54 The adoption of the trial judge’s broad definition by References(p. 381) the Supreme Court of Canada is too simplistic. There is a need for some profundity to be attributed to the meaning of “Indian”. To leave the definition open ended will cause much confusion and potential bitterness between Métis and First Nations who see limited financial resources being further divided among a growing category.55 Moreover, the gate will be left wide open for ethnic fraud to result.56
On the other hand, individuals may be re-asserting Métis identity and community where there is a well-documented history of a distinct Métis presence in an area, where there is evidence of denial of this distinct Métis community by federal policy makers and where this occurred without choice.57 In this context, it can be argued that such a reassertion of Métis identity could very well be a profound act of decolonization.
Whereas in other cases such as in the Vautour decision, the ethnic mobility choice from Acadian to Métis seemed opportunistic and not necessarily the result of imposed colonial policies sufficient to justify the inclusion of Vautour as a Métis for the purposes of claiming Aboriginal rights under section 35.58 There was no direct historical evidence of a Métis community having existed, and thus no evidence of the community having experienced the negative impact of colonization or identity denial. In other words, the community identified as Acadian for most of its history and has not experienced the negative impact of colonization and assimilation to justify identifying the community as Métis in the Aboriginal sense notwithstanding the existence of mixed-ancestry in the defendant’s distant lineage.59
References(p. 382) Arguably, even apart from whether courts have failed to fully account for federal assimilation policy and its impact on Indigenous identity, there remains the question of which Indigenous identity is appropriately considered. What is more problematic for the defendants in my opinion is that both Vautour and Corneau showed genealogical evidence of either Mi’kmaq ancestry or Montagnais ancestry yet argued that because of this ancestry they were therefore “Métis”. If they were supporting their claims based on Métis identity, would they not be claiming Métis ancestry instead of Mi’kmaq or Montagnais ancestry? What the defendants (or their lawyers) likely fail to realize is that being Métis is not reducible to whether one has some First Nation ancestry. Instead, the defendants should be claiming Aboriginal rights based on their belonging to the Mi’kmaq or Montagnais communities.60 Chris Andersen would characterize these claims as misrecognition of who the Métis are as a distinct people by attributing Métisness to a hollow empty construct based on mere mixedness.61
Adopting a broad open-ended definition gives the impression that Métis are those that are in the “reject pile where you throw all the people who lost their Indian status. We are not a garbage can, and we are not the leftovers”.62 Yet the Supreme Court of Canada adopted Hogg’s analysis that implies just that. According to Hogg, Métis are those who were “excluded from the charter group from whom Indian status devolved”.63 This is a very empty and insufficient understanding of the Métis peoples of Canada and must be rejected.
* Full Professor, Faculty of Law, University of Ottawa.
1 This chapter focuses on Métis Aboriginal rights claims based primarily on s. 35 of the Canadian Constitution. The scope of s. 35 remains uncertain, but such rights may include rights to lands, resources, cultural protections, and governance authority. The Manitoba Act, 1870 S.C. 1870, c. 3 contains constitutional rights for land to be set aside for the benefit of Métis families. Whether the terms of this constitutional obligation born out of negotiations between the Métis of the present day region of southern Manitoba and the British colony of Canada were fulfilled is the subject of interpretation in Manitoba Métis Federation v Canada  1 S.C.R. 623. For an account of Métis Treaty rights claims see Larry Chartrand, “Métis Treaties in Canada: Past Realities and Present Promise” in Christopher Adams, Gregg Dahl and Ian Peach, eds, Métis in Canada: History, Identity, Law and Politics (2nd ed., University of Alberta Press, forthcoming).
2 Daniels v Canada (Indian Affairs and Northern Development), 2016 SCC 12.
3 GA Res. 61/295 (Annex). UN GAOR, 61st Sess., No 49, Vol. III, UN Doc. A/61/49 (2008) 15 [hereinafter UNDRIP].
4 The experiences of Métis and First Nations are not completely separate as there is overlap in terms of the fact that many Métis have been affected by legislative definitions of who is an Indian under the Indian Act, R.S.C. 1985, c. I-5, and likewise some First Nations (primarily none-status Indians) have been influenced by judicial definitions of who is a Métis according to case law defining Métis discussed infra.
5 Other significant issues include concerns regarding the assessment of Métis title including the failure of the court to consider the negotiations that lead to the creation of the province of Manitoba as a treaty and the failure of the Manitoba Métis Federation, above (n 1) case to distinguish between Métis land-holding customs internal to the people as compared to the assertion of occupation for the purposes of external recognition of Aboriginal title under s. 35. There are also significant division-of-powers issues regarding the validity of provincial laws relating to the Métis by provinces such as Alberta including identity and membership in settlements of land collectively set aside for the Métis and the recognition of a regime of self-government on those settlements. Concerns of interjurisdictional immunity clearly arise since Daniels clarified that Métis are Indians and therefore under federal jurisdiction. It is beyond the scope of this chapter to deal with these and other significant issues within this field of Aboriginal constitutional law.
6 Paul Chartrand, “The Constitutional Status and Rights of the Métis People in Canada” (2015) (University of Ottawa Conference on Reconciliation and the Métis of Canada) (unpublished: copy with author).
7 For example, the definition of “Métis” used by the Eastern Woodland Métis Nation Nova Scotia does not place geographical limits on the ancestry of their members. See http://easternwoodlandMétisnation.ca/main.htm. As discussed below, the recent Daniels decision, above (n 2), appears to have adopted this kind of broad definition leading to concerns over the breadth of who can be legitimately Métis.
8 R. v Powley,  4 C.N.L.R. 321 (SCC).
11 For instance, a woman who married a non-status Indian would lose her Indian status according to the Indian Act before Bill C-31 was enacted in 1985 that allowed those who lost status to apply to regain it. However, this woman may have decided to join a Métis association and become an integral part of the Métis community, possibly for decades and that identity of being Métis may have been passed on to her children. She and her children for all intensive purposes had become Métis by long-time cultural association. Yet she or her children may not be able to benefit from Aboriginal rights belonging to the Métis community that she has become a part of because she, as an individual of that community, may not be able to prove the criteria of “Métis” ancestral connection through birth, adoption, or marriage. It is in circumstances such as these that Métis law-making authorities need to take advantage of the door left open in Powley to come up with “other means” for satisfying the criteria of ancestral connection.
12 For a more detailed analysis of this issue, see Larry Chartrand, “Métis Identity and Citizenship” (2001) 12 Windsor Review of Legal and Social Issues 5.
13 UNDRIP, above (n 3). For a useful review and analysis of the Declaration see Indigenous Bar Association, Understanding and Implementing the UN Declaration on the Rights of Indigenous Peoples: An Introductory Handbook (Indigenous Bar Association, 2011).
14 Paul Chartrand, “Defining the ‘Métis’ of Canada: A Principled Approach to Crown—Aboriginal Relations” in Frederica Wilson & Melanie Mallet (eds), Métis—Crown Relations: Rights: Identity, Jurisdiction, and Governance (Irwin Law, 2008) 27 at 35.
16 Thomas Isaac, Métis Rights (University of Saskatchewan, Native Law Centre, 2008) at 9.
17 For a thorough account of the complex nature of membership and community inclusion of Métis in Northwestern Saskatchewan communities see Brenda Macdougall, One of the Family: Métis Culture in Nineteenth—Century Northwestern Saskatchewan (UBC Press, 2010).
18 Such authors include Larry Chartrand, Justice Harry Laforme, Michael Asch, John Borrows, Gordon Christie, D’Arcy Vermette, Taiaiake Alfred, Darren O’Toole, Glen Coulthard, Joshu Nichols and many others who have consistently shown how Aboriginal law principles and doctrine are fundamentally discriminatory and racist at their core. There are professional and ethical questions that are of concern here, but this discussion is beyond the scope of this chapter.
19 Isaac, above (n 16) at 10.
20 Robert Innes, “Multicultural Bands on the Northern Plains and the Notion of Tribal Histories” in Robin Jarvis Brownlie and Valerie J. Korinek (eds), Finding a Way to the Heart: Feminist Writings on Aboriginal and Women’s History in Canada (University of Manitoba Press, 2012). Of course, Indigenous peoples traditions and customs should be allowed to evolve. I wonder whether the current criteria would be upheld under Powley if the claim was based on an Aboriginal right to determine membership instead of the right to hunt.
21 Robert Innes, Elder Brother and the Law of the People: Contemporary Kinship and Cowessess First Nation (University of Manitoba Press, 2013) at 86.
22 Adam Gaudy and Karen Drake. “ ‘The lands … belonged to them, once by the Indian title, twice for having defended them … and thrice for having built and lived on them’: The Law and Politics of Métis Title” (2016) 54 Osgoode Hall Law Journal 1 at 4.
23 Nicole St-Onge, “Uncertain Margins: Métis and Saulteaux Identities in St-Paul des Saulteaux—Red River 1821–1870” (2006) 53 Manitoba History 1 at 9.
24 Alberta v Cunningham,  2 SCR 670. Having acquired Indian status under the Indian Act, the plaintiff in Cunningham complained that his exclusion from membership in the settlement because of him acquiring Indian status amounted to discrimination contrary to s. 15 (1) of the Charter. The Court held that s. 15(2) provides a good answer to the charge of discrimination because s. 15 (2) is concerned with promoting substantive equality for disadvantaged groups. The Court held that those Métis who benefit from the Métis Settlements Act, RSA 2000, c. M-14 are part of an ameliorative program because the legislation at issue was part of a negotiated agreement between the government of Alberta and the Métis Settlements Federation to “establish a Métis land base to preserve and enhance Métis identity, culture and self-government, as distinct from Indian Identity, culture and modes of governance.” ().
25 Chartrand, above (n 6) at 8.
26 For example see Michel Hogue, Métis and the Medicine Line (University of Regina Press, 2015) at 113.
27 See Canada, House of Commons Debates, 11 June 2008, starting at page 1605. President Chartier’s statement appears on page 1619. Quoted in Signa Daum Shanks, Searching for Sakitawak: Place and People in Northern Saskatchewan’s Ile-A La Crosse (2015). Electronic Thesis and Dissertation Repository. Paper 3328. (University of Western Ontario) at 3.
29 Ibid  quoting Justice Phelan,  2 F.C.R. 268 (F.C. Trial Division) at para. 353.
31 Joseph Magnet, Reconciliation and the Métis of Canada Conference, transcript of proceedings (University of Ottawa, October, 2015) at 5. Conference presentation videos are available on the Métis Treaties Project website. See http://www.Métistreatiesproject.ca/conference/.
33 Daniels, above (n 2) .
34 At time of writing the policy of the federal government has been to exclude the Métis from both the comprehensive claims process (except for Metis comprehensive claims in the Northwest Territories) and specific claims processes.
36 Larry Chartrand, “The Failure of the Daniels Case: Blindly Entrenching a Colonial Legacy” (2013) 50 Alberta Law Review 1.
37 Daniels, above (n 2) .
38 Ibid, . Interestingly, the Court does not undertake the standard division-of-powers analysis that is typical of such cases except as a brief afterthought late in the judgment where it then promptly endorses cooperative federalism and the diminishing scope of interjurisdictional immunity by simply referencing Canadian Western Bank v Alberta,  2 S.C.R. 3 and NIL/TU,O Child and Family Services v B.C. Government and Service Employee’s Union,  2 S.C.R. 696 in the judgment. This point was no doubt made in the contemplation of pending litigation that challenges the Métis Settlements Act of Alberta as ultra vires the power of the province as Métis are now clearly under federal jurisdiction.
40 The Truth and Reconciliation Commission characterized the period from the mid-1800s to 1960s as the period of cultural genocide against Aboriginal peoples in Canada. Truth and Reconciliation Commission, Honouring the Truth, Reconciling the Future: Summary of the Final Report of the Truth and Reconciliation Commission (2015) at 1.
41 Daniels, above (n 2) .
43 Daniels, above (n 2) . This does not mean that anyone with mixed-blood is Métis or non-status and thus Indians under federal jurisdiction. The Court held at paragraph 47 that such determinations may need to proceed on a “case by case” basis.
44 Ibid. One could, however, argue that the court was not adopting such a broad definition but simply pointing out the current divisions within the society over the meaning of Metis.
45 Jean Teillet, Métis Law in Canada (Pape, Salter, Teillet, LLP, 2015) at 1–19.
46 Daniels v Canada (Minister of Indian Affairs and Northern Development),  C.N.L.R. 139 (FCA) .
48 Sébastien Grammond, Terms of Coexistence: Indigenous Peoples and Canadian Law (Thomson Reuters, 2013) at 12. Or if they do self-identify, it may be for opportunistic reasons unconnected to their lived experiences (including possible intergenerational effects) and heritage as some courts have determined. See for example, Vautour,  1 CNLR 283 (NB Prov. Ct) and Québec (Procureur général) (Ministère des Ressources naturelles) v Corneau, 2015 QCCS 482. English summary available online at: https://www.usask.ca/nativelaw/news/2015/qu%C3%A9bec-c.-corneau.php.
49 Daniels, above (n 2) . It is not apparent to me that a Métis community or political association would necessarily exclude those who went to residential schools from membership within the Métis community. In any event, the example of residential schools on membership inclusion reflects more the identity marker of negative impact of colonization on the individual’s ability to belong, which may still justify that individual’s legitimate identification as a Métis Indian under s. 91(24) even if such a person was not accepted by a Métis community as a member.
50 Sandra Lovelace v Canada, Communication No. 24/1977: Canada 30/07/81, UN Doc. CCPR/C/13/D/24/1977. The United Nations Human Rights Committee found Canada had discriminated against Sandra Lovelace because of the denial of her being able to maintain a cultural connection to her home community because of the impact of s. 12(1)(b) of the Indian Act which resulted in her loss of Indian status when she married a non-Indian and the right to live on the reserve where Mi’kmaq culture is most prominent.
51 See Jacqueline Peterson, “Red River Redux: Métis Ethnogenesis and the Great Lakes Region” in Nicole St-Onge, Carolyn Podruchny and Brenda Macdougall (eds), Contours of a People: Métis Family, Mobility and History (University of Oklahoma Press, 2012) 22 and Larry Chartrand, above (n 1).
52 R. v Powley,  2 CNLR 233 (Ont. SCJ). The Ontario Superior Court upheld the provincial court’s finding “that the contemporary Métis community had always existed, except that it was, until the early 1970’s, an invisible entity within the general population, an invisibility (to outsiders) caused by shame, ostracization, and prejudice” ().
53 The Truth and Reconciliation Commission has documented the impact of losing one’s connection to culture and community and has concluded that reconciliation between Indigenous peoples and Canada must involve efforts at repairing community alienation and identity. Truth and Reconciliation Commission, above (n 40) at 1–3.
54 Sébastien Grammond, Isabelle Lantagne and Natacha Gagné, “Non-status Indigenous Groups in Canadian Courts: Practical and Legal Difficulties in Seeking Recognition” in Patrick Macklem and Douglas Sanderson (eds), From Recognition to Reconciliation: Essays on the Constitutional Entrenchment of Aboriginal & Treaty Rights (University of Toronto Press, 2016) 259.
55 In some cases First Nations have intervened against Métis claims for Aboriginal rights. In R. v Hirsekorn,  4 C.N.L.R. 244 (Alta. C.A.) the Blood Tribe and Siksika Nation both intervened against a Métis claim to hunt in the environs of the Cypress Hills in southern Alberta.
57 For example, the Red Sky Métis were originally beneficiaries of the Robinson Superior Treaty of 1850. At the time of treaty, the Métis wished to join as a Métis band, but were denied. Colonial officials said they can only benefit if they joined the Saulteaux bands which they had relations with. The Chief accepted them but several years later, the “Métis” descendants were excluded from the treaty annuity lists because they were ironically Métis and since being excluded, they now have re-formed as a distinct Métis community. See Chartrand, above (n 1).
58 Vautour, above (n 48). The Superior Court of Quebec in the Corneau case came to a similar conclusion. In Corneau, the respondent asserted Aboriginal rights to occupy a hunting camp based on his Montagnais (Inuu) ancestry. The evidence did not support the existence of a historic Métis collective in the territory in question. In terms of Métis identity, “[t]he court found his self-identification to be primarily a recent phenomena driven by opportunism”. Corneau, above (n 48).
59 It may be fair to argue, given the concerns raised by Grammond et al., above (n 54) that there may be valid reasons for a presumption in law that colonization has impacted identity formation negatively and that recognition of Métis/Mi’kmaq identity should be provided to Vautour unless proof can be shown by the Crown that the defendant was not affected by colonization in this regard. It is difficult for me to be entirely confident given the history of colonization that it is fair or just to deny Vautour’s Aboriginal identity even if Indigenous identity is a recent assertion.
60 There are cases where non-status Indians have been found to possess Aboriginal rights. In R. v Lavigne  3 C.N.L.R. 176 the court found a non-status Mi’kmaq to have a “sufficient and substantial connection with a tribe” (). The court expressly choose not to apply Powley because the defendant was not Métis. Instead the court applied the R. v Fowler, (1993) 134 N.B.R. (2d) 361 test which requires a “sufficient and substantial connection with a tribe”. Yet, more recent cases of non-status claimants have been applying Powley by requiring evidence of “community acceptance”. In R v Acker,  N.B.J. No. 525 (N.B. Prov. Ct.) and R. v Vienneau,  N.B.J. 222 (N.B.Q.B.) there was evidence of Mi’Kmaq ancestry, but insufficient evidence of community acceptance and only recent evidence of Mi’kmaq self-identity. Arguably the Fowler approach is more sensitive to the negative colonial impact of federal identity policies and is preferred for those reasons.
61 Chris Andersen, Métis: Race, Recognition, and the Struggle for Indigenous Peoplehood (UBC Press, 2014) at 176–179.
63 Peter Hogg, Constitutional Law of Canada, 5th ed. suppl. (Carswell, 2007) at 28–34.