Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 16 - Evidence - May 2, 2012
OTTAWA, Wednesday, May 2, 2012
The Standing Senate Committee on Aboriginal Peoples met this day at 6:50 p.m. to examine and report on the legal and political recognition of Metis identity
[English]
Marcy Zlotnick, Clerk of the Committee: Honourable senators, I see a quorum.
[Translation]
Honourable senators, as clerk of the committee, it is my duty to inform you of the unavoidable absence of the chair and deputy chair, and to preside over the election of an acting chair.
[English]
I am ready to receive a motion for an acting chair.
Senator Sibbeston: I nominate my friend Senator Patterson.
Senator White: I second that.
Ms. Zlotnick: It is moved by the Honourable Senator Sibbeston that the Honourable Senator Patterson do take the chair of this committee.
Is it your pleasure, honourable senators, to adopt the motion?
Hon. Senators: Agreed.
Ms. Zlotnick: I declare the motion carried, and I invite the Honourable Senator Patterson to take the chair.
Senator Dennis Glen Patterson (Acting Chair) in the chair.
The Acting Chair: Thank you very much, colleagues. Once again, I am honoured to serve as chair.
I would like to welcome the witnesses, all honourable senators and members of the public who are watching this meeting of the Standing Senate Committee on Aboriginal Peoples on CPAC or on the web. I am Dennis Patterson from Nunavut, and I am happy to act as chair tonight.
The mandate of this committee is to examine legislation and matters relating to the Aboriginal Peoples of Canada generally. In addition, we have a specific order of reference authorizing us to explore Metis issues, particularly those relating to the evolving legal and political recognition of the collective identity and rights of the Metis in Canada.
The earlier meetings on this study have consisted of briefings from various government departments, which have provided us with information, including facts on current federal programs and services, the status of Crown-Metis relations, general statistical information and current legal issues, among other things.
This evening, we are delighted to hear from two legal experts on Metis issues to provide a legal context to the discussions.
[Translation]
But before we hear our witnesses, I would like to introduce the members of the committee who are here today.
[English]
Beginning with Senator Nick Sibbeston from the Northwest Territories on my left; Senator Larry Campbell from British Columbia; Senator Vern White from Ontario; Senator Nancy Green Raine from British Columbia; Senator Jacques Demers from Quebec; and last, but not least, Senator Don Meredith from Ontario.
Members of the committee, please help me in welcoming our witnesses. Before I introduce them, I spoke with our chair today who is unable to be here tonight because of personal reasons. He did tell me, however, that we are privileged to have Ms. Jean Teillet, a lawyer with the firm Pape Salter Teillet, with us this evening. Our chair, Senator St. Germain, said that she is an eminent lawyer and that we are privileged to have her. I welcome you on behalf of our chair and the committee. We also have Jason T. Madden, lawyer at JTM Law. Welcome.
I understand that you each have individual presentations and that you would like to field questions from senators as you proceed rather than at the conclusion of the presentations, which includes some maps and a considerable number of graphics. That will be a bit of a departure from our normal procedure. Is that agreeable to members of the committee, that you feel free to ask questions as they come up? I will watch out for that so we can have a dialogue going on as a result of this presentation.
Also, we have received what they call in Ottawa a "deck" with mostly graphics on it and some text that is in English only, and we have not had an opportunity yet to have that translated. Would the members of the committee agree to consider these documents tonight and refer to them during the presentation with the understanding that at the first opportunity, the French translation will be completed and provided to committee members? Is that agreeable?
Hon. Senators: Agreed.
The Acting Chair: I will ask for the deck to be distributed. Ms. Teillet, please proceed.
Jean Teillet, Lawyer, Pape Salter Teillet, as an individual: Thank you for the warm welcome. It is nice to see some people I have met before here on presentations for other people. I am delighted to come speak to you.
I should say also that Mr. Madden and I are both Metis ourselves, so we come to this from a lifetime of growing up within the Metis community. I am from St. Boniface. Actually, Senator St. Germain used to be a cop on the beat near my uncle Roger's insurance business. My uncle Roger was the Member of Parliament for St. Boniface back in the sixties and in the Pearson cabinet, and Senator St. Germain was a feature on our streets when I was a child. I have known him.
Senator Meredith: We will not tell him.
Senator Campbell: He is still a feature on the street.
Ms. Teillet: I thought that I would start my presentation today with a bit of terminology discussion because the minute you talk about the "Metis," questions arise as to who these people are and what is meant by that. There are other terms that are contentious in the discussion as well, one of them being "community" and the other being "people." I thought I would set out what I mean by these terms before we start so that you know what I am talking about.
The deck that I gave you really only has visuals, and I will only point to them when I get to those particular things. My speaking notes will be translated later and passed out to you.
Today when I am speaking about "Metis," who do I mean? When I speak about them as individuals, I am speaking about individuals who are the descendents of historic Metis collectives. I am making a big distinction. "Metis" is a confusing term, let us put it that way. It is confusing to everyone, not just people in government. It is confusing, and it became more confusing in the 1960s. Before that, the Metis were generally Riel's people out west. That is what most people understood to be Metis in French. In English, they were the half-breeds, of course. In the 1960s, as people like Frantz Fanon started to write in Africa about the language of naming and as the African-American movement started in the United States, people became very conscious of language, labels and naming. It became clear then that "half-breed" was not a very nice term, which had not really dawned on people before that.
Truthfully, as Fanon points out to us, we do not breed people; we breed animals. When you talk about someone as being a "half-breed," it is pretty clear which part of you is meant to be the animal and which the human being. It is a derogatory term. After that, people decided, "Well, we will just call everyone who has some Aboriginal blood in them or some mixture of blood Metis." We tend to say white and Aboriginal, but it is not always that. Sometimes it is Chinese and Aboriginal or African-American and Aboriginal. It could be any combination. It is true that the bulk are European and Aboriginal, though.
Then there became this big confusion. "Metis" became the general term not just for Riel's people, in the West, or the Metis Nation or the Metis of the Northwest but also for people who had an Indian ever-so-great grandmother in Nova Scotia, too. We also have confusion today because some people from Haiti, in Montreal, tick off the Metis box in the census. That is because they have mixed ancestry, and they understand that term to mean that.
This confusion then skews our data all the way down the line. All the census data is to be looked at with care because of the language problem.
The Supreme Court of Canada has given us a basic concept of individual identification. You self-identify as Metis. You have an ancestral connection to a historic Metis community, and you are accepted by the community. Broadly, that is the definition of "Metis" that the Supreme Court of Canada set out.
That came out of the Powley case. I was the lawyer on that case and worked with the Métis National Council to come up with that definition to give to the Supreme Court of Canada, who adopted it. It is not as if it is court handed-down and smacked on people. The Metis Nation themselves put that forward and said, "This is a good basis to work from. This is what we think you should talk about when you are talking about Metis." The courts all the way up the line, not just the Supreme Court, accepted that as a good basis to start from.
When we talk about the confusion of language, I would say that there are a lot of things that Metis are not. They are not the reject pile where you throw all of the people who lost their Indian status. We are not a garbage can, and we are not the leftovers. We are not where you go if you cannot sign up with someone else. That is the first thing.
The next thing is happening today, and I sort of feel responsible, although I did not plan to create the monster with Powley. Since Powley, a lot of people are going out, getting their genealogies done, finding an Indian ever-so-great grandmother from 1650 or something and saying, "I am Metis. I have Aboriginal rights." I personally think that is garbage. I would put a stronger term on it, but I am in Senate committee, so I will not. I will say that it is not worthy of anyone's attention for one minute. We have some nice court cases out of New Brunswick that have been smacking that idea down rather hard.
I also think the term is not —
Senator Meredith: I have a quick question so that you can catch your breath as well. I see that you are very passionate about this. In terms of those individuals looking to go back and try to claim that they are Metis based on ancestral lineage, what is the fix for that?
Ms. Teillet: That is only one part of the definition. First, they are only doing a genealogy to look for Indian ancestry. They are not looking for a Metis community. That is the problem. We should be wary of that. It has to hook somewhere. Remember that we are talking about "Aboriginal people." It has to hook into something real on the bottom. If it hooks in, in 1650, to the Mi'kmaq, I would say to that person, "That is really interesting. You have a Mi'kmaq ancestor. My great grandfather is from Poland. I have a Polish ancestor. That does not make me Polish; it just gives me that ancestry." You can be justifiably interested in and proud of having that ancestry, but it does not give you the right to say that you have a change of identity. I think it still gives less of a right to claim constitutionally protected rights that isolate you from the rest of Canadians. I do not think that is correct.
Personally, I am offended by it, and I think Canadians generally would find the ability to do that really difficult. As I said, we have six court cases in New Brunswick now that have been vehemently abandoned, telling people that this is an inappropriate way to go.
Was there another question?
The Acting Chair: Thank you. Maybe I will just suggest that members go through the chair. We are broadcast.
Senator Meredith: Sorry, Mr. Chair. I did raise my hand.
Senator Demers: You are very passionate but in a good way, and I like that.
Why are Metis so misunderstood?
Ms. Teillet: You have come to the bulk of my presentation. I want to talk to you about exactly that, about why we cannot find the Metis, why we have a difficult time recognizing them and why we have difficulty with this whole thing. I have written a Master's thesis on this whole idea, so I have delved into it.
I have seven ideas about why we have a hard time with this. I will go to them. If I end up spending all of my time talking about this, I will leave it to my colleague, Mr. Madden, to fill in the blanks after.
The Acting Chair: This question of definition is one of the key issues that the committee wishes to examine. This is very important.
Ms. Teillet: Thank you for that. I will not feel worried, then, about spending my time talking about that issue because I think I can help you shed some light on that issue.
I call the Metis an invisible society. Why is it invisible? Why can't we see them as a people? First, it is because no one wants to. This is not an issue to be underestimated. We do not like mixed-race people. Even our concept of multiculturalism is based on some kind of concept of purity. We allow people who come from, say, India, to come to Canada and happily be their culture here. However, a good friend of mine has a mother from India and a father from Iran. She is a mix of this, but we have no place for that.
There is a lot of mixed-race theory out there now. There is something that Minelle Mahtani, a wonderful scholar on this at the University of Toronto, calls relentless negativity toward mixed-race people. We do not like mixed-race individuals and still less do we want a people to arise in Canada who are mixed-race. It is not just the white folks or greater Canadian society; Indians do not want it, either. You can see it in the names. The Metis are a people of many names.
On page five of your handout I have given you some of those names. Take a look at these: The French, Michif, Metis, gens libre, hommes libre, bois brûlés, chicot. These are just a few of the terms that the francophone language has created for Metis people. They are not different people, I want to assure you. They are not referring to different individuals; these are just different names for the same people.
In English we say freeman, half-breed, country-born, mixed-blood. The Sioux have a word for the Metis. In Cree, âpihtawikosisân means "half people" and otipêyimisowak means "the independent ones." I have some facility with Cree but little with Chippewa, so I will not try to pronounce some others. There is also Odawa. These are also terms that mean half-burnt or half-people.
If you look at those terms, they all break down into different categories. Some refer to colour. Some are claiming you. The Cree are saying if you are âpihtawikosisân, you are half of us; they are claiming you. They refer to the way you look or they refer to your mixture of race.
I will ask you to turn to the slide that has the picture of the map. The yellow line is where I think the people of the Metis Nation are. You might think that is a large territory, but the Cree and the Inuit have similarly large territories. When you see when it is in the Upper Great Lakes area, the mixture there will be part Chippewa or Ojibway. As you move farther west, in the southern part — as you are in the United States — they will be part Sioux and part European. As you move into the northern part, there will be Cree background and Dene as you get up below the lakes. They are part Blackfoot as you get into Alberta. The Aboriginal background is quite mixed.
The name the Cree give means they are looking at it through their territory. You can think of it through a lens. When the Metis come through here, they call them that name and identify them as this. However, they do not see that they are also the same people who are in northern Ontario — the same families, the same brothers, the same man and his family. It is the same people who are down in Montana, the same family in Fort Edmonton and Fort Resolution. They are all the same and moving around. However, the viewers — the namers of these people — only see them as they pass through.
You have to understand that they do not want this new group of people to come, because they feel it takes away from them and from their cultural group. I do not like using the word "race" because it is a difficult term.
There are a lot of lines about this. People say the Metis are like the bridge between two cultures. Everybody wants to be on one side of the bridge or the other, but no one wants to be the bridge. No one wants to be stuck in the middle. There are all kinds of ideas like that floating around.
That is my first point: We are messy. It would be so much easier if you only had Indians and Inuit to deal with. We do not fit into the nice square blocks. We do not fit. It would be easier if we are not here. We are not wanted.
The second reason that we have a hard time seeing Metis is because we have erased their historic, geographic boundaries. We no longer recognize their territory anymore. We have inserted provincial boundaries. Whenever you look at map of Canada, we see cities that we have created, provincial and territorial boundaries, Highway 1 going across, and the CPR and the CN Railroad going across. We do not see that, for them, their Highway 1 was the waterway and river system that went from the French River, across the Great Lakes, through Rainy River, up into Winnipeg, up into northern Saskatchewan and up into the Athabasca. That was their Highway 1. They had cart tracks and boat brigades, but we do not see their geography.
The Metis are people who did not build cities. They lived as very highly mobile people. They did not build places that lasted. They were somewhere and they left, so there is nothing to dig up. You cannot create an archaeological dig site on Metis stuff. If they had anything metal or worth carrying, they took it with them. We do not see their geography anymore.
For Indians, we still see some of their geography because we created treaty areas. If we had not, we would have a hard time seeing the boundaries of Blackfoot territory or anything else.
Third, one of the key identifying factors of a cultural group is language. The Michif language, which is the language of the northwest Metis, was not discovered by the outside world until1960. That is hard to believe but it is true. It was 1960 before it became known outside the Metis that they even had a language.
The language at that point was burgeoning on 200 years old. It is fascinating and a lot of people have been writing about why it was not known. The closest example in the rest of the world is the language of the Roma people — the Gypsies. That is another language that is called an internal language; they only speak it to themselves. It has smatterings of other languages in it. If you were listening to Michif and you spoke Cree, you would hear Cree words in there, but it would sound like bizarre Cree. If you were French and listened to Michif, you might hear French words in there but not enough to know what they were talking about. That is the same with the Roma language.
The reason it is internal language is they were highly linguistically fluent. All of our records from the 1700s, 1800s and 1900s showed that the Metis could regularly speak four or five languages. Cree was the lingua franca of the prairies. If you wanted to talk to anybody, you spoke Cree. You did not have to speak Michif. They spoke it within their families. It was by accident that it was even discovered, and only because a linguist heard it by accident in southern Manitoba. He perked up his ears and said, "What on earth is that?" He also has written huge books on it and says it breaks all the language rules that anybody has ever set out for linguists. I am not a linguist, but apparently they are all fascinated by this language.
These people have a language. It is another reason we did not see them as people because we did not know they even had a language. Language is one of the things that glues people together.
The fourth reason we have a hard time seeing Metis is because they are not a distinct phenotype. That basically means that you cannot tell who they are by looking at them. Back in the 1800s, when we were doing scrip, the Manitoba Act and dealing with treaties, Metis more often looked like Indians. We have many of the treaty commissioners talking about how they could not tell who is a half-breed and who is an Indian. They have no way of distinguishing them.
Today, Metis can look at me. I happen to look like some Polish ancestor of mine from Warsaw. My sister has passed on, but she had black hair, dark skin and brown eyes. It is the genetic flukes. You can range in appearance from what someone today would think of, stereotypically, as a full-blooded Indian to someone who looks like me.
It is another reason we have a hard time picking them out as a people, because you cannot just look at them and say, "Oh, you are this."
I already talked to you about their many names and the problems that has generated. I would say that that is the fifth reason. Once people name you in one part of the world, it is hard for them to understand that the people who are named something different over here are not actually a different people.
You have to remember those are not the Metis names for themselves. They are outsider-attributed names for those people. They should be taken as telling you more about the outsiders than they do about the Metis themselves.
Even in my dad's generation, the Metis did not call themselves Metis. I see you have a painting here that says "May-Tea," because that is the way we pronounce it now. In my dad's generation they would say "Michif." When I was a kid, my grandfather hated hearing people say "Metis." He would say it is Michif; that is who we were. That is the name we called ourselves. We did not pronounce it like "Metis" as if it is like, "I, Metis come to see," kind of number. They did not do that.
The naming is a problem and it makes it again hard. It is easier if you can say, "Oh, there is the Blackfoot" or "There is the Cree," but if you say, "Oh, there is the half-breed", "There is the freeman," "There is this or that," it takes really pulling back to understand that these are the same people.
The sixth reason, I would say that after 1870 in particular, after the events at Red River in 1870 and particularly after the hanging of my great grand-uncle Louis Riel in 1885, it became very important not to self-identify as Metis. Metis had a very vested interest in putting their heads down and not identifying.
I had a marvellous opportunity over the last 20 years to interview some wonderful old Metis people. I got a chance to interview an old man who was 100 and something at the time down in Montana who had been a scout in the rebellion of 1885, and another old woman who talked about coming up from the United States afterwards. They all talked about being told, for example, when they came across the border, "Do not tell anybody you are Michif. You tell them you are French. Do not speak your Michif language at school. Speak French at school. Do not tell people you are a half-breed." Put your head down and maybe people will leave us alone.
You must remember after 1870 this was very serious. It was the reign of terror in Red River. Canadian soldiers were raping, pillaging, and tarring and feathering people. They were burning houses. People left in droves because it was so violent and so dangerous.
George Brown, the first owner of what is today The Globe and Mail, personally put a $5,000 bounty down at Riel's head and anyone who assisted in the events of 1870. That thousand dollars in 1870 was a lot of money. You are talking about strong incentives to not identify. It is another reason why we have a hard time finding these people, because they were keeping their identification, their language and their lifestyle to themselves.
The Acting Chair: Maybe I will ask a question before Senator White. Please forgive me if this is too personal a question. Your family had a distinguished parliamentarian.
Ms. Teillet: Two.
The Acting Chair: One was a cabinet minister in the Pearson era.
We know one of our Senate colleagues, Senator St. Germain, as being a proud Metis person. Did your ancestors in politics identify themselves as Aboriginal people?
Ms. Teillet: My uncle, Roger Teillet, certainly did. He was the Minister of Veteran Affairs in the Pearson government,. We could not get away with not identifying. That is something that is maybe unique to my family, because we are Riels. We could not hide in St. Boniface. Everyone knew who the Riels were.
You must understand that back in the 1950s and 1960s it was different. Now it is kind of cool. Everyone wants to be Metis. It was different. Senator Sibbeston knows. It was not cool to be Aboriginal back in the 1950s and 1960s. We were the dirty, drunk, stupid, lazy half-breeds and the Riels had a brand called "traitor" on our foreheads. This was not something that was easy to stand up to and fight. This all goes hand-in-hand with the francophone language question in Manitoba. For the Metis in Manitoba, it is hard to separate those two issues. I grew up with my grandfather fighting Liberal, Catholic and Metis issues and, to be honest, I did not know they were different when I was a kid. I did not have any sense of separation. I did not understand that federal politics was different from Metis politics or Catholic Church politics because it all seemed the same to me. I did not know you had choices about these things until I was much older and understood that I did not have to be a Liberal. My goodness, what a concept.
I come from a very political family. After Louis Riel was hanged, my great-grandfather Joseph, who was his younger brother, looked after Louis's kids and his wife. He became the de facto leader in Manitoba. The beginnings of what is now the Union Nationale and now the Manitoba Metis Federation started in my family's kitchen, which is now the Riel Museum. My grandfather then became the secretary of that, fighting for Metis rights.
My uncle Roger also came up through the Union Nationale. I do not think we ever lost our political identification and the identification of our family, but I admit that for many other Metis families it was not that way. We had to brazen it out because we could not "not" do it. My grandmother's name is Sara Riel. If your name is Sara Riel in St. Boniface, you cannot go around saying, "I am not Metis." It is not possible.
Senator White: I do not know if I missed something but I feel I am receiving a mixed message. I love your passion in talking about people who were afraid or maybe made to fear speaking out being Metis or, in some cases, Aboriginal, I would argue as well, in Canada.
Ms. Teillet: I agree with you.
Senator White: Our history is not very positive in this way, but at the same time they state that they do not have the right now to say that they are Metis or Aboriginal. Am I missing something?
Ms. Teillet: Maybe I have not drawn the pieces of the puzzle together yet. My understanding is that many people today, as some people in Senator St. Germain's own family, grow up and know they are Metis but they do not want to identify publicly. Sometimes it is for good reasons. They want to just get on with their lives and do something about it. Back in the 1950s there was not any positive gain to be got by it, so why would you bother? However, nowadays they think, "I did grow up in this Metis thing and I do not see why I should not stand up and say it."
I would like to distinguish those people who are rooted in the historic community from the people I have been talking about who do their genealogy and find some ancestor back 300 years ago. It is a different kettle of fish that I am making a distinction about.
Senator White: It was maybe my misunderstanding, because I thought you said a grandmother was Polish and now they say they are Polish. To me, it I had a grandmother who was Polish, I might say I am Polish.
Ms. Teillet: I have one grandfather on my mother's side who is Polish and one on my dad's side who is Sara Riel. I am mixed.
Senator White: I know our history is so poor with Aboriginal people. Many people in this country, in particular in the East, did not accept their roots; sometimes actually their French roots, depending on what part of Nova Scotia they lived in and the history we have with the French, which was not very positive, either.
I am challenged by the suggestion that we not allow them, regardless of constitutional rights or something to gain, I think, is what you said. That is, in the 1950s, there was nothing to gain. From the point of view of the acceptance of Canadians, I like people to identify with themselves, so I wondering if I misunderstood.
Ms. Teillet: Senator White, if you are talking about people who say their grandmother or their great grandmother lost their Indian status and they still always thought of themselves as, for example, Mi'kmaq and they are mixed blood, I would say that person would be identifying as Mi'kmaq.
The Metis have a culture, a language and a history. We have stories and geography. We have genealogical connections that tie us by kinship, history and all of those things together.
I am reminded of a wonderful book that Tom Molloy wrote about the Nisga'a and Nisga'a elder who said, "If this is your land, where are your stories?" We as Metis have those stories, history and all that stuff in the West.
However, the courts are telling us in the East that there is no Metis history. This is Indian history, so I think the mistake is they are trying to create a new entity.
Senator White: That is because they are looking at themselves as a mixed breed.
Ms. Teillet: Yes. I think it is the reliance on genealogy to the complete exclusion of all the other factors that should be considered.
Senator White: Thank you. I understand. I plead ignorance because my experience has been working in Aboriginal communities, First Nations and Inuit, not in Metis communities.
You are saying that when we separate the three — Inuit, First Nations and Metis — you separate them as well and put Metis as a strong, historical, ancestral, indigenous community in this country.
Ms. Teillet: That is right, and I locate them where this is.
Senator White: Therefore, you do not locate them in the East, even though Labrador has Metis?
Ms. Teillet: Labrador just changed their own minds. They do not self-identify as Metis anymore.
Senator White: They have gone to Innu, then?
Ms. Teillet: We were at the royal commission hearing when they decided to become Metis. They stood up and said: "We actually think we are Innu, but the Innu will not accept us so we will identify as Metis." I was sitting with Clem Chartier, the president of the Metis National Council, and I said, "Isn't that a nice principled reason for becoming Metis?" He said, "Yeah, no kidding."
What happened after Powley, and this is a good thing, is the federal government gave a lot of money out to various Metis organizations to try to help with registries and help figure out who people are. The Labrador Metis took that money, invested it wisely and got some good historical documents and work done. Out of that they said, "We are not Metis. We were right to begin with. We are Inuit, so we will stick with that now." They have changed their name and said, "We are not Metis."
Senator White: They have now gone to Nunatsiavut.
Ms. Teillet: Quebec is a bit of an outlier still.
Senator White: In many ways.
Ms. Teillet: My own thought is I do not think there are historical roots there, but there is a case called Corneau, and they are doing research. I will just sit and wait because I think this is all based on the facts of history. Let us see what the facts of history tell us about whether there is a Metis community in Quebec.
We also do not see one in British Columbia right now. There is no data that I have seen that leads me to believe that the Metis of the Northwest — the individuals did not go over the Rockies, but the Rockies were a formidable barrier.
Senator White: That is the community.
Ms. Teillet: That is right. I know there are Metis groups in British Columbia. I live in British Columbia myself and I know there are Metis groups there, but the question of whether there is a historic community is another thing.
My colleague is reminding me that Kelly Lake in the Northeast Angle is an exception to that.
Senator White: That is close to Alberta. Thank you very much.
Ms. Teillet: I will go to my next point about why we have a hard time finding the Metis. I think I have touched on it a bit, but it is their extreme mobility. I want to emphasize that. Our records that we have been delving into now for the last 20 years are extraordinary — the mobility of these people who travel regularly from the Great Lakes to Great Slave Lake to Montana.
We have three different economies of the Metis: the boreal forest that runs up the Upper Great Lakes up to Great Slave Lake across northern Ontario, northern Manitoba and northern Saskatchewan, up that way. That is where all the fur traders were. We know that Metis were the children of the fur trade.
Below that you have the Great Plains, parkland and grasslands areas. That is where the famous Metis buffalo hunters are.
We have another economy, too, which is the people who lived on the fisheries base on the Great Lakes and on Rainy Lake, where Mr. Madden's family is from, on St. Laurent and Lake Manitoba. Those are fisheries rooted places.
Those economies are all intertwined; the families are intertwined. The pemmican from the buffalo hunt was the gasoline — that is the way I think of it — that ran the fur trade. Those fur traders did not stop to hunt or eat. They lived on dried pemmican that came from the buffalo hunt. I cannot remember how much they ate a day, but Dr. Ray told us that an astronomical amount of meat went into those big guys every day so that they could paddle from four in the morning until eight or nine at night without stopping, and doing those huge portages and carrying. That all came from the buffalo hunt.
In our records, we see one brother will be a buffalo hunter for a while, then go up and work in the fur trade for a while. Then he might be on the fisheries for a while, or another brother doing it or doing it together. There were also the freighters and traders who were joining the groups together.
These economies are intertwined in that big area, and people move and they love it. That is one of the amazing things about the records. They talk repeatedly about how much they love being out there. They say it over and over again, "no law to bother us," which is lovely.
Repeatedly, we see in the scrip records that "I never knew them to have a house," or "They lived their whole life on the prairies." Giraud described them as a "floating element" on the prairies.
Let me read you a quote here. This is an extraordinary story. Giraud wrote this during the Second World War hiding in a garret in Paris, but he had done all his research on the Prairie Metis before that. He says:
. . . through the whole year they lived a nomadic existence, becoming a veritable floating element which, unlike those whose life was divided between hunting and farming, had virtually broken all lasting ties with the colony.
— meaning Red River.
The families that reappeared in the parishes of Red River only at the end of May or the beginning of June would arrange for the marriages they contracted during the winter to be blessed and for the children who had been born during their wanderings to be baptized; some of them would even bring back, so they could have Christian burial, the bodies of their relatives who had died in the prairie four or five months before —
That horrifies me, the idea of travelling around with uncle somebody-or-other four months.
— and whom they had temporarily interred there. At the end of a few days, they would leave again and not return for another year.
. . . there were some who had never had any occupation other than hunting bison. Departing from St. François Xavier or Red River, they passed long years on the prairies in winterers' villages, and only went occasionally to the nearest fort or to the colony of Assiniboia to trade their robes or their provisions of meat.
This is what we see, thousands of people.
On page 6, I have given you a photograph of one of those wandering Metis hunters' camps. This was taken by the Boundary Commission in 1874. It is in southern Alberta. You know it is a Metis camp because there are Red River carts. If it were a Sioux or Cree camp, you would not see Red River carts there. This is a camp that the boundary commission described as having over 1,000 people in it. They lined them up and took pictures of the hunters. They said they were out on the prairie for months at a time, going wherever they wanted, over hundreds of miles, just tracking the buffalo. This is the people we are talking about. These are the stories.
I will stop because I want to give Mr. Madden a chance to speak.
I want to take you to the maps starting on page 8. The map I showed you with the big, heavy, yellow line as the outline, I did not invent that; it comes out of a lot of work. I looked at 50 scrips. For those who have never seen them, I wish I could have more time with you and show you these extraordinary documents.
When giving out scrip, it started in 1885 —
The Acting Chair: Give us a bit of background on what scrip is, please.
Ms. Teillet: Canada wanted to extinguish the Indian title of the Indians, and they were not sure at the time whether the Metis had Indian title or not. My own sense is that out of an abundance of caution, they decided to extinguish Metis title as well. Instead of doing it by way of treaty, they did so individually.
The idea that we do not know who the Metis are today, we did in 1885 because Canada went out, tracked them all down, took their oaths and had affidavits attached to them; we have them all.
The wonderful thing with the scrip piece is that they received a piece of land or money in exchange for extinguishing their title, but the scrip information on those sheets tells us where they were born, where they were married and where their children were married. Back then, there were large Metis families because they were having a baby every two years, and it shows you where those babies were baptized and born or where they died. Some cases were horrible, with 10 kids dying in the smallpox epidemic in 1870 during a three-month period. We have all this information about where they were at certain periods of their lives, so we can track some of this mobility.
I should also mention that scrip was only given out on the Prairies. This scrip does not give us any information about Ontario.
On this scrip map, I took 50 scrip applications at random, and they are divided between men and women. I separated them because I wanted to see if the men were going out by themselves and the women were staying in one spot, but that was not the case; they were travelling as families. I stopped at 50 because I think you can see what would happen if I did 1,000; you would have a red blob and not be able to see anything any longer. It shows you the general area on the Prairies that the Metis are travelling.
If you look at the next map, it shows what I call their migration mobility. The Metis are also economic or political migrants. For example, with respect to economic migrants, in Sault Ste. Marie after around 1850, the beaver were all trapped out, so there was no good trapping going on any longer. The Metis are fur traders, so they go where there is good trapping and they move there. I call that being an economic migrant. Political migrants, as I noted before, after the Red River Rebellion of 1870 and the Reign of Terror, people fled from Red River. I call that migrating for political reasons.
I could go through them all for you, but I do not think I have time. These are the migrations. It is important to note it is not always east to west. People are sometimes going back east, sometimes north, sometimes south, sometimes going east and then west and then east again. It is just to show you that they are moving.
On the last one, the big purple area on the circle represents the scrip maps, and then you see the migratory routes. Then there are red lines there. Those are some of the genealogical connections I tried to pull out. It shows you the area.
If you look at the last page, I put that map I had with the yellow beside the other one, so you can see I did not invent the Northwest Territory or the Metis Nation territory. It comes out of the sustained historic evidence of these people.
These are the people that we are talking about when we refer to the Metis people, the people that we think are the individuals.
I will point out two more things. One is that I think the idea that you have zoned in on, senator, with the identification issue, there will be five issues coming up in the next decade. I think the first one is the identification issue. The second one is jurisdiction. I am sure if you have already had presentations on the law, someone has talked to you about the Daniels case and whether Metis are Indians for the purposes of section 91.24. I think that jurisdiction question will come up.
There is an issue about a new relationship between the federal government and Metis, of which I think the Manitoba Metis Federation case will squarely hit on the head. We need a new relationship because work will need to come out of that.
The fourth issue is consultation. I know you are aware that that is a moving target and a developing area, but it also affects the Metis. The last issue is representation.
What I think underlies those five issues that I think will absorb us legally for the next five years is identification of the community and identification of individuals. That must underlie every single one of them. If you do not know who to consult with, who to have a relationship with, who you have jurisdiction for or who is representing them, then there is no way to start addressing these problems. The root problem is identification.
I do not know if you saw statistics on mobility. One of the reasons I emphasized the mobility of the Metis is that according to our statistics, Metis today are still almost twice as mobile as other Canadians, and they are also more mobile than status Indians. My own theory is that the policy of Canada back in the 1700s and 1800s was to settle Indians down. That is why there were treaties and reserves. People wanted them to "quit their wandering ways" and to settle down. By and large, you succeeded; they are actually less mobile than most Canadians. There is a churn back and forth from the big city nearby back to the reserve, but essentially they are not as mobile. We did not put Metis on reserves or create treaty areas to encourage them to stay in place. I think if we did not do that for Indians, they would be just as mobile today as in the past.
Because we did not stop the Metis from moving around, I think that is why they are still doing so, and that has repercussions for social programs. If we are wondering why Metis have poorer health and why Metis kids do not graduate from high school with the numbers that they should, maybe we should be looking at the fact that they attend 20 different high schools throughout their high school career. Maybe that has an effect. I do not think we are seriously applying the mobility data to the social issues arising for Metis today, and I think we should seriously be looking at that.
I will stop and pass it over to Mr. Madden, unless anyone has any further questions for me.
The Acting Chair: Senator Campbell, you looked like you wanted to ask a question at one point.
Senator Campbell: I still do not understand at what point you become a Metis. I do not understand that. I will explain why.
I know someone very well who is from Poplar Point in Manitoba, who clearly has a First Nations background, did exactly what you said with a genealogical search that was quite intense and discovered that, in fact, on one side were First Nations and the other side were English from Hudson Bay. Does that mean she is not Metis?
Ms. Teillet: That is right.
Senator Campbell: You will have difficulty explaining that to their family. I do not understand that. I am Scottish and Canadian. I do not stop being Scottish and Canadian because someone says that I am not.
My whole understanding of Metis was that you self-identify. I am having real difficulty because now it seems like we are putting a fence around who these people are, who they could be and who they are not. I am just having great difficulty with that.
It is not as though this person said at the end of the say, "I am Metis and I am entitled to benefits." It was not that at all. It was that "I am Metis and I am proud of it." I have trouble with what you are saying, quite frankly, from the point of view of who is Metis and who is not.
I understand all of your graphs; they make perfect sense to me. I think it is a great body of work. However, I do not think there is a point where you can say that this person is Metis and this person is not Metis. If they self-identify and if there is some evidence that they have a background that matches, it would be like saying that Metis do not travel and are not in these communities, so they are not Metis anymore. Any person who flows genealogically from that family is not Metis.
Ms. Teillet: My understanding was that you said that they had First Nations background. In my estimation, that would make them people with First Nations background.
Senator Campbell: Then let us get down to the very basics. Do all Metis have First Nations background?
Ms. Teillet: The point that I am trying to make to you is about self-identification and tracking back to a Metis culture. You can go beyond that, but we are looking for people who track back to a historic Metis culture. If you only track back to a First Nations culture —
Senator Campbell: This person does track back to a historic Metis culture.
Ms. Teillet: That is not what you said. You said they found First Nations on one side and European on the other.
Senator Campbell: They did. They lived in Poplar point, ended up living in Metis communities and were considered Metis, but, at some point, someone made a decision that, "We will not be Metis; we will be white." That is effectively where the break took place.
Let us get back to my original question: Is it possible to be Metis and not have First Nations in your background?
Ms. Teillet: At some point, people have First Nations in their background, but they have to come through a Metis culture. There is a thing called a birth of a culture — ethnogenesis. That is a sociological term where a new culture is created. Once that culture is created, you come from that culture; you do not come from the Cree or the Blackfoot next door. You come from the Metis culture that has come into existence. We know when it came into existence in the Metis of the Northwest. We know exactly when it came into existence. We have lots of good data on that.
If, before that, you have some people who have First Nations ancestry, after that you are First Nations. Let me also point out another thing that we have not instituted here in Canada but that the Maori in New Zealand have. They put what they call a three-generation concept on it. They say that in the first generation you move away from your culture. We all saw the sixties scoop, right, all those kids scooped out of their culture? They say that if that generation, once they grow up, want to come back, they take them without question. It is not their fault that they got taken away.
If they have been away for a whole generation, and the next generation comes back and wants to say that they are Maori, they say, "If we accept you back" — because it is a two-way street at that point — "then that is fair. However, you have been gone into the second generation." However, they say that if you have been gone into the third generation, you have been gone too long. You are not us anymore. You cannot come back after three generations and say that you are us because you are not anymore. I am not saying that we have adopted that here. Personally, I think it is something we should look at, but I do not speak for the politicians. I think we should be looking at that. If people have been identifying as white in the white community or the regular Canadian communities for three generations, then my own personal opinion is that that is it.
Senator Campbell: What happens if you do not know? What happens then? You are placing a parameter on people who have no choice in the matter. What happens if you do not know, and, all of a sudden, if you trace back, you find that you are Metis. It is three generations, so you are not Metis anymore? I am third generation not Scottish. That does not mean I do not wear a kilt anymore, and I am not proud of being Scottish. I am sorry. I am having real difficulty with this. I will work through it, but I am having real difficulty with what you are telling me.
Ms. Teillet: I have difficulty with a position that says that people who have gone for 30 or 50 years without knowing — some of them 300 years — then get to, just because they go and do a genealogy, come and say that they are me. I think, sorry, no. I draw the line. I do.
Senator Campbell: We just have to choose to disagree.
Ms. Teillet: Okay.
Senator Campbell: I do not think that your argument is sound.
Jason T. Madden, Lawyer, JTM Law, as an individual: I have this question: Do the people not get to decide? What you are saying is that I can look at any genealogy and say, "Well, three generations back, I was Metis." The reality of what is protected within section 35, or the reason we have section 35, is to protect people's collectives, not so that individuals can just identify.
Senator Campbell: You self-identify.
Mr. Madden: That is not sufficient.
Ms. Teillet: That is only one part of it.
Mr. Madden: Your argument is what we faced, as Metis, before Powley. That argument lost in the Supreme Court. That is the Congress of Aboriginal Peoples' argument. The Metis are the mush. I have some mixed ancestry, so I belong. What we won at the Supreme Court was that that did not cut it. It was not sufficient to say, "I am a bit of this and a bit of that. I self-identify as Metis because I cannot figure out, am confused or find some ancestry behind me." What section 35 and Powley were about was that it was not good enough to just have mixed-ancestry people.
I want to talk a bit about the case law. We are here to actually talk about the law, and your arguments, or those points that you are making, are failing in the courts. We are winning overwhelmingly. Ms. Teillet and I have been fortunate to be counsel on many of them. I will take you to some of the East Coast cases. It is not us who have the pulse on us; it is the judges who do because the arguments you are making are being made by individuals claiming to be Metis.
Here is one case. It is R v. Castonguay. The judge said:
It should also be said that the Court heard no evidence based on which it could hold that there ever was a Métis community in New Brunswick. At one point, there clearly were Métis, that is to say children of one aboriginal parent and one parent of European descent. . . . Having said this, an aboriginal genetic connection that was formed ten generations ago and has no continuity with the present cannot give rise to a constitutional right."
That is what the courts are reaffirming and what the Metis also say. It is this idea that just because you have an ever-so-great ancestor, you do not connect into those communities who are the section 35 rights holders or who hold the rights, so it does not make you Metis.
There is a basic theory as to why section 35 is included in our Constitution. There were peoples who were here first. When Canada's expansion went westward, it did not bulldoze over, although it tried in some cases. Those peoples and their distinct identities, cultures and ways of life are meant to be protected. Those are the communities that are protected within section 35. We have to stress this: It is about collectives and peoples being protected.
If the people themselves decide, "Yes, we want to accept anyone who can find a little bit of Metis ancestry within them," that is one case. However, that is not what the Metis themselves have put up, and it is not what the Metis themselves want. The Metis are protected in section 35 to protect that distinct culture and way of life. If the Metis have no ability to do that, we will be lost in the sands of time like other peoples who have gone before.
It is extremely problematic and troublesome by virtue of the lack of actually dealing with Metis and sitting down and figuring out the identity question, avoiding it. What governments in Canada have done for successive generations is to duck this issue. The Metis ourselves have finally gone to the courts and been extremely successful in the courts.
I want to go back to Senator Demers' comments because I think that the Supreme Court of Canada provides us with a lot of help in saying, "Why is there this problem with this people?" They set out the narrative in three paragraphs. I think that they do it quite well and it is one the challenges that the Metis face.
This is a recent case from the Supreme Court of Canada. It is a case from the Alberta Metis settlements. There is the land base Metis in Alberta. This is the quagmire or one of the additional challenges of why we do not have reserves or an Indian Act registry to clearly understand who these people are. Yet we do have that in the Indian world, since the 1970s, and we started that with the Inuit.
The Supreme Court of Canada said:
Following The Royal Proclamation of 1763 (reproduced in R.S.C. 1985, App. II, No. 1), which organized the territories recently acquired by Great Britain and reserved certain lands for Indians, the Crown adopted a practice of making treaties with Indian bands. Thus, most Indians on the prairies are Treaty Indians. In exchange for surrendering their traditional lands to the Crown, they were granted reservations and other benefits, such as the right to hunt and trap on Crown land. . . . The Crown did not apply to the Métis its policy of treating with the Indians and establishing reservations and other benefits in exchange for lands. In some regions, it adopted a scrip system that accorded allotments of land to individual Métis. However, Métis communities were not given a collective reservation or land base; they did not enjoy the protections of the Indian Act or any equivalent. Although widely recognized as a culturally-distinct Aboriginal people living in culturally distinct communities, the law remained blind to the unique history of the Métis and their unique needs.
They go on: "Governments slowly awoke to this legal lacuna." That is a big gap. This is another people there that the government policy has chosen to ignore. They said, "We will deal with you as individuals, we will give you scrip, we will not recognize that in order to keep your communities together you need collective land bases as well and the protections provided to other Aboriginal people."
Frankly the process was: How do you divide up a group? If you divide them up, maybe they will just disappear. I believe that is the strategy.
Then they say:
Governments slowly awoke to this legal lacuna. . . . The landscape shifted dramatically in 1982, with the passage of the Constitution Act, 1982. In the period leading up to the amendment of the Constitution, Indian, Inuit and Métis groups fought for constitutional recognition of their status and rights. Section 35 of the Constitution Act, 1982 entrenched existing Aboriginal and treaty rights and recognized three Aboriginal groups — Indians, Inuit, and Métis. For the first time, the Métis were acknowledged as a distinct rights-holding group.
We have this people for whom no one has established systems for; no one has bothered to remain in the list of identifying them. No one has done that work. However, we continue to have section 35, which recognizes "they were always there but we did not pay attention." That is what Powley changed. Those distinct communities — you have to work with them to figure out how to identify those people today.
It is not simply self-identification. The Supreme Court of Canada says that I can stand up and say I am the Queen of Sheba, but that does not make it so. The Supreme Court of Canada says there is a three-part test to be a part of those section 35-protected communities: Self-identification is one, ancestral connection to the distinct Metis community, and community acceptance.
The reality is that if you have an ever-so-great ancestor and you have no connection to the community, the community itself has to make the determination. You can self-identify as Metis but the reality of whether you are a part of that community or people must lie with the collective; it does not lie with an individual just standing up and saying that.
Here is the challenge, and the Supreme Court of Canada puts their finger on it: Nothing is set up to actually figure out who these people are. Aside from the Metis settlements in Alberta, Metis are, by and large, without a land base, except in the Northwest Territories where Metis are included in the modern-day land claims agreement process, or some are in their own negotiations through the Northwest Territories Metis Nation.
This is the problem. This is what you are grappling with. The reality from 1982 was that we were supposed to negotiate this. We were supposed to sit down and figure it out, and that was not done. Back in 1993 — and I have included it in the materials — when the Charlottetown round came around again, the Metis were there and were able to get an accord called the Metis Nation Accord with the five provinces from Ontario west, the Northwest Territories, as well as the Government of Canada saying, "We will sit down with you and begin to negotiate those things."
It was part of the Charlottetown Accord and that fell apart and the political process fell apart. We went to the courts. I think we run about 20 years behind where First Nations are. They sometimes blaze the trail. We have to remember 30 years ago, not many people paid a lot of attention to the treaties. They said, "They were not worth the paper they were written on."
In Canada we are grappling with how to deal with the third Aboriginal people. There are those three and the entire system we all know and know well is oriented around First Nations, Indians and the Indian Act. I refer to it as the vortex. That is what everyone focuses on and no one pays attention to the peripheries where the Inuit and Metis sit. Unfortunately, they are ignored often, or for the most part people do not know how to deal with them.
If you are not going to deal with them, the courts have been dealing with them. It has been forcing this issue in the same way. The tide has turned — many of the issues ignored in the First Nations world back in the 1960s and 1970s has changed. The Metis are in that space today. Powley set the first parameters, saying these are not just this mixed-ancestry hodgepodge. They are a distinction people who emerged in the historic northwest prior to Canada being Canada.
Why as Canadians we say they were here first, we respect that, we acknowledge that, and we want to find a way to continue to allow those communities and the larger people that they are a part of to continue to exist.
The challenge we have is that no one wants to do it with the Metis. We are the proverbial political football: "Do not come and knock on our door. Talk to the provinces." We think we have extinguished all of your Indian titles; we will deal with you as individuals." There is no process in place right now to grapple with these issues.
Here will be the reality. Since Powley, we have had a lot of research done and we have also gone to the courts quite successfully and in some areas quite unsuccessfully. The map Ms. Teillet is talking about, based on the historic research is showing, is what the case law is showing up. We do not see those communities emerge in Eastern Canada. We like to say it is because we are such good lawyers that we continue to win in Ontario and in the Prairies. The reality is that it is not. The facts of history are there.
We are here today to talk about the fact that we think there are big issues coming down the pipe that the Government of Canada needs to begin to grapple with. Maybe I will take the question as we go along. The first one is jurisdiction and the other one is the Manitoba Metis Federation case just heard by the Supreme Court of Canada in December of this year. Similar to how Powley made everyone stand up and take notice, the Metis Federation case will do the same thing of saying there is unfinished business in Canadian Confederation and we have to deal with the issues with respect to the Metis that we have largely ignored today.
Senator Campbell: I want to make it clear that I did not mean any disrespect in my comments. I have a clear understanding of your idea of the collective. I understand the collective.
I still have difficulty with the disjoint that takes place. I understand the concept of three generations, too. I just wonder what happenings to someone like Senator St. Germain who had gone through all of this; he was identified in a collective. He was Metis. What happens to someone who comes to the realization that they have Metis ancestry that is identified?
Can they then be identified as Metis? Does it come down to what you are saying: I self-identify, then I have to actually be accepted by what we recognize as a Metis culture, as a Metis group, and then I am accepted? Would that be the process to go through?
Mr. Madden: Yes.
Senator Campbell: I am prepared to accept that because I have a Cree grandmother and a Hudson's Bay trader father I am not Metis. I get that. If I am accepted by the community and recognized by the community, am I then Metis?
Mr. Madden: Yes, if you are ancestrally connected to that community. One of the things that has not played out yet that the Metis are still grappling with is, how do they implement the community acceptance process?
Ms. Teillet: In some places we have it done. For example, one of the cases we took in southern Manitoba, Will Goodon, what the community there did was, if you wanted to join the Metis community you had to go to the St. Boniface College, which will do your genealogy for you. You go back and show them this and say, "My name is Goodon now but it was Gaudin back three generations ago and my great-grandfather was in this community." They go to the community and nine people in that small community sign on and say, "We know that family. We know they were Metis." You have to get nine people to sign to say they knew you, your family or your history. That is how it works there.
Not everywhere is doing that.
Senator Campbell: There is a model, is there?
Ms. Teillet: Exactly, there is some way of everyone standing up and saying, "We know you."
The Acting Chair: That is interesting because the Inuit land claim had a similar community enrolment process.
Mr. Madden: Here is the point: We know how to do it. There is no question that we know how to do it. We have done it for the modern-day land claims agreements for the Indians in the Yukon, and the Northwest Territories for the Inuit. No one has done it for the Metis. The reality is that we do not have to do it, if we pretend we are continually wilfully blind to the fact that there is this third group of Aboriginal peoples there who essentially have the same rights and have the same constitutional protections as other Aboriginal peoples. There is a need to create a process that allows us to do that. Unfortunately, the political will has not been there and Metis have resorted to the courts in order to push these issues further, similar to how First Nations have resorted to the courts, as well as Inuit, when there has been a lack of political appetite to deal with these issues.
The Acting Chair: I have one comment. The Inuit were enrolling members community by community following the settlement of their land claim. It amazed me that in some communities people who had no ancestral connection — that was one of the three points you emphasized — but were fondly regarded or were considered to be Inuit because of their lifestyle and their ability to speak the language and all that, were actually enrolled in the Inuit land claim. That was sanctioned by the government. They have become beneficiaries, even though they have no genealogical connection. There was that much respect given to the community approbation in the Inuit land claim.
Senator Sibbeston: I want to thank our witnesses because I am a Metis and this is as clear as I have ever heard it explained. You have taken the historical basis of the Metis people as a distinct group of Aboriginal people on the Prairies and come from there.
I hope there are a lot of Canadians watching. I think their presentation should be made available to the schools throughout our whole country because there is a misunderstanding about Metis. I come from a Metis family prominent in the Northwest Territories and these were people who did come from the Red River into the Northwest Territories to live in places like Fort Smith and Fort Providence. There are family names like Lafferty, Mercredi, Macleod, Bouvier. For a while I did think that a Metis was just the coming together of a White and a First Nation, creating a super-breed. That is what I honestly thought. A Black and a native — I have some friends that are in that situation and they are super people.
I really appreciate your explanation. Obviously, you have taken the time and done a lot of research to show this. All the things that you describe are so true. In the Northwest Territories, the Metis were a very favoured and privileged people because they were generally very skilled and they knew the languages — English, French and the Aboriginal languages. They were the riverboat pilots, the traders and interpreters, all these prominent people in the community.
I think they were also a restless people. If one travelled to another community, he would end up marrying in the community. Now you have another group of Metis. That is the story of the North. All the communities are Metis people because of one person going there and marrying into the community, and then you have a new group of Metis people. They are very independent.
I read a book about the Fort Edmonton area, Buffalo Days and Nights, by Peter Erasmus. It is an interesting story. If you want to learn about the Metis people, read a book like that. It shows a vigorous young person working as a guide, chosen to lead expeditions, going on buffalo hunts, and intermingling with the Crees and all the other native people. He went to a little place called Lac Ste. Anne at the time; he met a girl he wanted to marry and she said, "No, because you are too unsettled. When you settle down, I will marry you." A few years later he was more prepared to settle down. He went back to Lac Ste. Anne and, lo and behold, she was married to another man. He eventually married another girl just in the course of an evening meeting.
Mr. Madden: It sounds very Metis.
Senator Sibbeston: I do appreciate that. Michif, my relatives speak that language. When I finished law school I did some research on Metis in the North. Metis in the North were given scrip. It was $250 for each person, which, in the early 1920s, was a great deal of money. One old man said he could build himself a house, all the necessary things he needed, doors, windows, the logs were from nearby. He could build a beautiful house for $250. It was a significant amount. It was to extinguish Indian title.
I appreciate what you said. Your presence tonight has been very valuable, because there has been a lot of uncertainty in our country about who a Metis was. You have defined it and described it very well and the Supreme Court decision will help the Metis.
In many ways, the Metis are very independent, and they would not have stood still anyway. They are not the type of people to group or herd into an area and have a boundary put around them anyway. They were not that type of people. In a sense, they are very independent and very successful, so they have wandered all around the whole country, so it is difficult to describe them today, but, obviously, it has been started. I am glad to see that this work has been done.
The Acting Chair: Thank you, senator. That is a ringing endorsement.
Senator Meredith: Thank you again for your wonderful presentations. This is thoroughly enlightening, and I concur with Senator Sibbeston in terms of the power of your presentation to bring enlightenment especially to the youth across this country as to these deep and historic things that need to be settled.
You spoke, Mr. Madden, about the fact that we know how to do this; we know how to ensure this is done. My question is in terms of organizations. You talk about the absence of the political will to get this done.
Where do we go from here? We are doing the study, and we want to make sure we have it right as we shape government policy, as we encourage government to shift its policy on Metis rights and land claims. We want to ensure we are getting it right. Where do we go from here?
Mr. Madden: There need to be negotiations on these issues with the Metis. I think that we also need the continuing support of letting the Metis continue to establish their registries. I think one of your statements in the description for this study is about enumeration and registry. I do not think we should talk about enumeration. Enumeration is unhelpful and will not get us to where we need to go. We need registries.
One other thing said by the Supreme Court of Canada is it is not good enough to stand up and say, "I am Metis." The organizations or the governments for the Metis need objectively verifiable systems, so people can rely on those systems the same way people rely on an Indian status card.
I am not sure how to move the political agenda. In my deck there, the last page is a map of Canada. This is just my personal opinion. Senator Sibbeston, in the Northwest Territories, the Metis are actually in modern day land claims agreements. It is the Sahtu, Dene, Metis agreement. In the Dehcho agreement, they are participating.
There is an arbitrary line south of 60 saying that we do not negotiate with Metis south of 60 because we think that their Indian title has been extinguished or that we do not have an obligation.
There is a need to establish a process where these rights and interests can begin to be reconciled, whether it is through a Metis-specific process that was articulated back in 1993 or 1994 during the Charlottetown round, but there must be some realization that the Metis need to be put back on this map.
On this map, you see Canada's historic treaties and the modern day treaties with the Indians and Inuit, but there is not a place for the Metis. The assumption in Powley was this pink area where there are the historic treaties of Treaty 8, Treaty 6 and all those areas, which Ms. Teillet has on her map. The assumption is we have extinguished all the Aboriginal rights there through the historic treaties, and now there are just treaty rights there.
The reality is there are another Aboriginal people there, the Metis Nation, and they need to be reconciled with as well. We know how to do that. It is through modern day land claims agreements, and they may not have to look identical to what First Nations have, but there must be a process to do that.
I may be bald or grey by that time — or greyer — nothing wrong with being bald or grey — but the reality is I think the Metis will ultimately get there. That is ultimately where all the litigation that is being taken is. I do not accept the principle, I do not think that the Metis accept the principle nor do I think the people around this table accept the principle. We know how to do it. It is not perfect. However, we know how to begin the process of reconciliation. I do not think it is not acceptable to say, "We will do it with the two of the three Aboriginal peoples and the third does not matter enough." I do not believe that that the legal lacuna that the Supreme Court of Canada talked about that flowed from not entering into treaties with Metis historically is an acceptable solution for the Metis in this country.
We were at the Supreme Court of Canada in December, and I think that some of the comments from the bench were an agreement to a certain extent. You even hear the language from the Supreme Court of Canada: The time has come. Government slowly awoke to this legal lacuna. At some point in time, the political momentum moves us there again, and I do not know if that necessarily will do it, but the courts will.
I want to point out this is not an impossible task. Prior to the 1970s, there were no treaties with the Inuit in this country. We must remember that. In less than 30 years, we have four modern day land claims agreements and the creation of Nunavut with the Inuit. I may be wrong, but I do not think this idea is an impossible task, and I do not think it is beyond the realm of possibility.
In Alberta, we already see that Metis can have a land base. We are the largest country in the world, and as for the idea that one of the Aboriginal peoples in this country just are not worthy of a land base, I do not believe that international law principles or, at some point in time, our domestic law, will allow that to continue to be perpetuated for future generations.
One of the things this committee should be alive to, and maybe Ms. Teillet can talk about the Manitoba Metis Federation case, is there were promises made to the Metis that 1.4 million hectares of land were to be set aside for the half-breed children, and that promise was not fulfilled. That is similar to how the promises made to First Nations have not been fulfilled, and First Nations have been to the Supreme Court of Canada 54 different times in different cases, with many of them saying, "Yes, Canada you did not fulfil the promises." Now we are actually having the land claims promise cases to the Metis getting to the higher courts. The MMF case will be the first opportunity dealing not with Metis at large but specifically with the promises made to Riel in 1870 and whether those promises were fulfilled.
Senator Meredith: Thank you for that, Mr. Madden.
Ms. Teillet, Senator Sibbeston just brought up the issue with respect to the scrip again. It is my understanding, and others have asked how it is that you can claim ancestral rights when some of the scrips were sold or lost of in transit somehow. How is it fair for you to come back around and say, "We do want a piece of the pie. We want our land and our rights to that land"?
I know it is a thorny issue.
Ms. Teillet: It is not as thorny as you think. Canada has been in this position before in the Northwest Territories. Up in the Northwest Territories as a part of Treaty 11 — Senator Sibbeston probably knows this better than I — not Treaty 8 below the lake but Treaty 11 above the lake, all those numbered treaties were what we call "full extinguishment treaties." We would cede, release or surrender and, in exchange, we guarantee your right to continue hunting and fishing, and we will give you reserves. In Treaty 11, they never received the reserves.
After Calder, which is the first Supreme Court of Canada case in 1973 that recognized Aboriginal title was not just a political idea but actually a legal right, Canada had a legal opinion from the Department of Justice that said, "You guys are so vulnerable because you did not fulfill your end of the bargain on Treaty 11. You took what you wanted, but you did not give the quid pro quo that you were supposed to."
As a result of that, Canada entered into negotiations with the different groups in the Northwest Territories. Most of those are completed now, which are the Gwich'in, Sahtu, Tlicho and now the Decho, although I do not know how far away they are from completion, but they are the last group north of the lake. Those are modern land claim and self-governance agreements that sit on top of a full extinguishment treaty. The reason is because the government did not fulfill its part of the bargain on it, and this is exactly what we have with scrip.
The government came in, they got what they wanted, the extinguishment, but they did not ensure that the Metis received their part of it. That is why we are saying there is unfinished business there, and that is why I am saying we need a new relationship.
I would also say, Senator Meredith, that if you have not been told already, the Daniels case is coming down. It is at trial level right now. That is the one about whether Metis are Indians for the purposes of federal jurisdiction or not. I will give you my prediction: They are. I think there is almost no chance —
Senator Meredith: I can take that to the press, right?
Ms. Teillet: You can take it to the press if you want, and you can come get me afterwards if I am wrong.
My legal opinion is that there is almost no chance that Metis will not be federal jurisdiction. It is like a less than zero per cent chance. It makes no sense for Metis to be provincial jurisdiction. It is a binary equation.
Senator Meredith: If I was a gambling man, I would be betting with you.
Ms. Teillet: It is a binary equation. You are either federal or provincial. There is no other option.
I could understand it being provincial jurisdiction only if the Metis were in one province. However, the minute you have Metis spreading out from Ontario throughout the Prairies and into the Northwest Territories, then you have federal jurisdiction. Federal government, you will have jurisdiction for this. When the Manitoba Metis Federation case comes down, who has the responsibility? You do.
Senator Raine: Alberta too?
Ms. Teillet: I think what the courts have been telling us, Senator Raine, for many years is they do not like the silo idea. They do not want to say, "Only the feds can do this and the provinces cannot do as well."
My own legal thought on this is that the courts have never said the provinces cannot do good things for Aboriginal people. They are saying that you cannot extinguish their rights. You cannot, without justification, infringe on their rights. If you want to do something good for them, such as set up settlements for the Metis in Alberta, why is that a violation of federal jurisdiction? You are doing something good for them. I do not think that violates any concept of constitutional law, to have governments in this country do the right thing, which I think the Government of Alberta has been doing. They deserve a lot of credit for doing so.
Mr. Madden: There must be one important distinction made about the Alberta Metis settlement: It is not based upon Aboriginal rights. The Alberta settlement scheme is not something where they recognized the Metis had Aboriginal title in this and we extinguish for the larger area to give these — initially there were 12 settlements; today there are eight. It was based upon a socio-economic need that there were a people after the collapse of the Buffalo, culminated also with the Depression, that Metis literally became the brokers of the fur trade to be known as the road allowance people. They were living in the road allowances.
In Alberta, the CCF party — yes, there was a CCF party in the province of Alberta at that point in time — essentially said they will create a safe place for Metis to live and to continue to exist as a people. They did not do so because of the grand norm of settlement in Canada or because these are treaties; they did it on a different basis.
Those settlements in the Cunningham case that I spoke about earlier when I read that quote about what the Supreme Court of Canada was talking about, the settlements were in that case. No one questions whether Alberta had jurisdiction to do so because it was on a socio-economic basis, but it is not on recognition of Indian or Metis title in those areas.
I want to go back to Senator Meredith's comment. Ms. Teillet said, first, they did not get the benefit. However, the other issue that is the bigger issue is if Metis title — we all know that Indian title is not held by individuals. We know it is a collective-based interest. If Metis had what was at that point in time called "Indian title," you could not extinguish the collective interest by going to individuals. That is the legal argument that the Métis National Council and the Metis on the Prairies have been making for years.
I also think that is what the Supreme Court of Canada says, that these are a people that are culturally distinctive as a collective, and you cannot extinguish their rights. We know why we need band council resolution if they are to give a piece of the reserve somewhere. We know that to ratify treaties, you need everyone to ratify. We do not go house by house to individuals.
The argument the Metis make is that scrip could not constitutionally or legally extinguish the collectively-held title of the Metis in the Dominion Lands Act areas.
Ms. Teillet: If I could make a recommendation to you, if you want to hear more about the scrip process and the great fraud perpetrated throughout that process, Dr. Frank Tough from the University of Alberta has spent years on this. He gives a brilliant presentation where he follows the fraud of the system, tracks it out for you and shows you exactly how that whole system was engineered to ensure the Metis never received one stick of that land. It is brilliant work. I highly recommend him. He is an eminent professor and well worth listening to if you are interested in hearing more about scrip.
Mr. Madden: The Supreme Court of Canada has already commented on it. They refer to the scrip process as a "sorry chapter in our nation's history" in the Blais decision. It is not a question of whether it was fraudulent or whether it completely left the Metis without a land base; everyone knows it was. It was actually quite a concerted effort of determining how we get what we want without having to give anything because we knew they would never take the lands through the process that was established.
The other statistic I like from Professor Tough's presentation is who ended up with most of the scrip: Many of the major banks today, and many law firms benefited as well.
Ms. Teillet: The richest families on the Prairies and the churches all ended up with the land.
Mr. Madden: There was a lot of speculation and wealth was made in the Prairies, but it did not befall to the Metis. That is part of the story that will come out in the Manitoba Metis Federation cases; it is one more of those situations where there was a promise made in 1870 to the Metis on the Red River, and what was then done in the subsequent years by ineptitude or a whole host of reasons is that the Metis never received the benefit. What you largely see is a Mennonite area where they received lands, but in the Metis way, we will separate the lands out and separate all the families. As Ms. Teillet said earlier, it was the time of the Reign of Terror that the Metis never received the lands promised to them. This is also language from the Supreme Court of Canada, "Canada's negotiating partners in Confederation."
One thing about the Metis is they have always wanted in to Canada, and they have always negotiated in. I think the problem is that negotiation has never been reciprocated by actually following through on how we reconcile the interests with this third group of Aboriginal Peoples.
Senator Raine: When we arrived here this evening, there was a document entitled "Appendix 5D: Proposed Métis Nation Accord." Is that just a proposed accord? Was it ever an actual accord?
Mr. Madden: No, it was actually part of the Charlottetown package. If Charlottetown had passed, the provinces, the territory engaged and the federal government agreed that the Metis Nation Accord would be part of the Charlottetown package. The copy is in the Royal Commission on Aboriginal Peoples report. They provide a copy of it saying, "This is actually what would have come into being if Charlottetown had been passed."
What is interesting is that — going back to Ms. Teillet's point about whether Metis are Indians for the purposes of 91.24 — in that agreement, Canada agreed that Metis are Indians for the purposes of that section. When political times were different or the political momentum has been there, these issues have been able to be resolved. That momentum clearly did not carry on after Charlottetown did not pass.
We wanted to provide it as a way of saying that what we are saying here today is not an Alice in Wonderland sort of issue. We have to remember what our history shows, namely that, at various points in time in this nation's history, the Metis have been that close to getting there. We are now in the courts to try to force getting there. I think we ultimately will, but that is why it was provided, just for information and background.
Senator Raine: Reading this, I can see that a lot of what is in here is where you would like to still go.
As for enumeration and the Metis registry, you now feel the registry is more valuable and enumeration is not the way to go?
Ms. Teillet: No.
Mr. Madden: Absolutely.
Ms. Teillet: We are also not looking for the federal government to create another Indian Act registry. I do not think that is where you want to go, and that is not what we think. We think the registry should be created by the Metis people themselves. If we can create reliable, verifiable data, based on good documentation with good systems, good appeal mechanisms and good administrative processes that Canada and the provinces can find reliable, then everyone can rely on these. However, it should be the people themselves who create their registries. I think it would be a nightmare to have Canada take it on. It is the wrong way to go.
Senator Raine: I appreciate that.
Land and resources is outlined in this document, but how do you envision moving forward and the land issue being resolved in an ideal world? Are you talking about communities that exist, that are predominantly Metis people having title to their land? Right now it is fee simple title that they live on. Would you collectivize that, or would you put land around the outside of their community as their "reserve collective land?" How could it actually work?
Mr. Madden: I think those are issues that would probably be determined by the communities themselves. The reality is that the Alberta Metis settlements were created in the early 1900s. We know how to create landbases for Aboriginal people. In some areas, it is not practical to create a separate land, but one of the key things that we see with fighting all around the world is that land is key for any people. I think that there needs to be a place for the Metis within their traditional homeland. I think that, aside from the eight settlements in Alberta and the land claims processes north of 60, there is not that space for the Metis at this moment in time.
Ms. Teillet: I am one of the treaty negotiators for First Nations, so I have a fair amount of experience with the whole land issue. We generally look at land for three particular purposes. One is for living space, for residency, a place for people to actually build homes and live in community.
Two, we often look for land to protect particular cultural sites. Batoche would be a perfect example of the type of cultural site that the Metis might want land set aside to protect.
Third, there is land for economic opportunities so that the Metis can have a way to build an economic future for themselves. Those are the three ideas that we usually use in land claims when we are looking for how we will talk about that.
Are we talking, necessarily, about a huge clunk of land? Maybe not. Maybe it is a historic site over here. It might be an area where we can build some housing for some people because we know housing is a huge issue for some people. It might be an area where we want some land to pursue economic opportunities. Those are the kinds of things that will be running through people's minds when we are talking about some kind of resolution on land issues.
Senator Raine: I appreciate that, but, when I look at it in practical terms, most Metis people, I presume, have been living in a non-collective-landbase society, where they own their individual homes.
Ms. Teillet: I do not know about "most." We have many communities, Green Lake in Saskatchewan, for example, where 98 per cent of the people who live in the town, except for maybe the schoolteacher, the priest and the nurse are Metis. That is an area where you do not have other people living. Lac La Biche is another community in northern Alberta where it is almost all Metis people.
Senator Raine: I realize there are Metis communities like that. However, do the people in those communities own their house, or does it belong to the Indian reserve? They do not have reserves.
Ms. Teillet: Let me put it this way. The Metis people, from as far back as I have ever seen, in the land negotiations that we were engaged in in 1870 even, like to own their own plots of land, but they want some kind of — and it is not say to in perpetuity — protection on it. They do not live collectively like Indians because they are not Indians, right? They have a different culture. We have to look at it another way. Holding the land in fee simple is not necessarily a problem. It is not an insurmountable issue. I do not think they will be looking, necessarily, to create the idea of a collective base as in the Indian reserves. They might be looking to get an area that will be fee simple, but maybe, even if you sell it, you retain the underlying title. There are lots of ways of looking at this. We do not have to think that the only model is a collective, reserve-type concept.
Senator Raine: Or fee simple.
Ms. Teillet: Exactly. Maybe they hold it all in fee simple as we are doing in the B.C. land claims.
Senator Raine: I think you could call it "fee complicated."
Ms. Teillet: I object to using fee simple in the British Columbia term because, although they call it fee simple, it does not meet the definition of fee simple. We are already doing something different. There is no reason that we could not be creative and find different ways of dealing with this problem. I think the idea of fee simple is not the hill to die on. There are ways.
Senator Raine: I understand that, but that is a big challenge for you. I hope you can put some —
Ms. Teillet: I would like to get a table first. I would consider that we would deal with the high rent problem once we got to the table.
Senator Raine: My final question is: There are very identifiable Metis settlements, but there are a lot of Metis people who do not live in those settlements. How would you deal with their aspirations with regard to land?
Ms. Teillet: It might be the same way that we would have to deal with it when we are talking about it in First Nations communities because that happens there, too. Some people live on the reserve, and maybe most of the people live in Vancouver or something like that. They do not live on the reserve. Some of them have not lived on the reserve for a long time, but they are still members of the community. The idea that you have to find a little piece of land for every single person is not the way that we need to go at it. Everyone will not want to move to live there.
My old aunties and uncles will not want to leave their houses in St. Boniface, Manitoba to go live anywhere else. I do not think we have to feel that we have to find a plot of land for every single person. There will be ways to work around that.
Mr. Madden: We already have an example of that in the Metis settlements of Alberta. For example, they are represented by the Metis Nation of Alberta when they are off the settlement. When they are on the settlement, they are represented by the Metis settlements. There is constant movement between Edmonton and the settlements.
What it really is, though, for me, is a place. Land is so key. It is a place. When Ms. Teillet spoke earlier about all of that geography of the Metis being erased, yes, the First Nations have their treaties but they also have their reserves. That land is key to protecting a place for the Metis in the future and also to ensure that future generations always know they were there and they continue to be there. I think that land may be a bit more flexible; that is in not necessarily needing it for the purposes of houses or where the entire community moves to or lives on. However, I think it must be a key component and part of the discussion when we finally get to that table for the Metis.
This is also one of the scary factors for people: No one says that Metis self-government needs to look identical to the Indian Act system. Sometimes the Metis do not want it to look like that. I think the Inuit, through their modern day land claims agreements, have had the flexibility — as well as the other modern land claims agreements — to develop self-government structures that meet the needs of the people. One size does not fit all.
The Acting Chair: Senator Meredith, you have a brief question?
Senator Meredith: You talk about the registry and that governments should not do it; the Metis people should do it. How does the programming come into play once these individuals have been identified? How do we service them in terms of programs?
Ms. Teillet: We already have that happening, for example, in Manitoba.
Senator Meredith: There would be no need to create any additional programs or anything like that?
Ms. Teillet: I think the programs are there. There are some programs, though, that Metis have been excluded from.
Senator Meredith: How do we bring them into the fold, then, is the question.
Ms. Teillet: Exactly. Once you know who the people are and then they know they have access to those programs, it is an easy thing to set up.
Senator Meredith: That is the crux of our study there in terms of access to programs, et cetera: How do we ensure that the Metis people have those rights, as others do?
Ms. Teillet: We have organizations all across from Ontario and west that are already delivering health programs, education programs, social services programs and all kinds of things like that. I think there is already an administrative structure in place that just needs to be altered. If you add a new one to something that is already there, it is easier to deal with.
I do not see that as problematic at all, but I do think it needs to be done.
The Acting Chair: Senator White, I think you will wrap up the questions.
Senator White: Thank you very much. I have learned more about Metis history in the last few hours than in the last three decades. Thank you very much.
The Acting Chair: On behalf of the committee, I wish to say that this is a vexing challenge for us, as you pointed out at the beginning. Metis are misunderstood and confusing. I am confident in saying that you have helped us immensely in understanding the study that we have just launched.
We appreciate your advice on what to ask when we are in Batoche; we are planning to go there. There is at least one witness we will ensure we hear from in Edmonton. We will also be in Ontario, in the Sault Ste. Marie region. We are also going elsewhere.
Senator Campbell: We are not going to Labrador?
The Acting Chair: It does not sound like it.
I very much want to thank the witnesses. You are obviously both not only extremely knowledgeable but on top of the issues, the legal issues and are also demonstrably passionate. We are grateful. We have gone beyond our usual time but for good reason.
With that, I will declare this meeting adjourned and thank everyone very much.
(The committee adjourned.)