Proceedings of the Standing Senate Committee on
Aboriginal Peoples
Issue 15 - Evidence - April 25, 2012
OTTAWA, Wednesday, April 25, 2012
The Standing Senate Committee on Aboriginal Peoples met this day at 6:45 p.m. to examine and report on the evolving legal and political recognition of the collective identity and rights of the Metis in Canada.
Senator Gerry St. Germain (Chair) in the chair.
[English]
The Chair: Good evening. I would like to welcome all honourable senators and members of the public who are watching this meeting of the Standing Senate Committee on Aboriginal Peoples. They will either be watching on CPAC or on the web.
I am Gerry St. Germain from British Columbia and I have the privilege and honour of chairing this committee.
The mandate of this committee is to examine legislation and matters relating to the Aboriginal peoples of Canada generally. Today we will be hearing testimony relating to a specific order of reference that authorizes us to examine and report on the legal and political recognition of Metis identity in Canada.
The early meetings on this study have consisted of briefings from various government departments who 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 begin to hear from witnesses outside government. We are joined by two academics from the University of Ottawa who have knowledge of Metis issues.
[Translation]
But before that, I would like to introduce the committee members here this evening.
[English]
The deputy chair of the committee is Senator Lillian Dyck from Saskatchewan. We also have with us Senator Sandra Lovelace Nicholas from New Brunswick, Senator Nick Sibbeston from the Northwest Territories, Senator Salma Ataullahjan from Ontario, Senator Vernon White from Ontario, Senator Don Meredith from Ontario, Senator Nancy Greene Raine from British Columbia, Senator Jacques Demers from Quebec and, last but not least, Senator Dennis Patterson from Nunavut.
Members of the committee, please help me in welcoming our two witnesses this evening. From the University of Ottawa, we have Larry Chartrand, Associate Professor, Faculty of Law, Common Law Section; and Brenda Macdougall, Chair, Métis Research, Department of Geography in the Faculty of Arts. We look forward to your presentations and I am sure there will be questions posed by senators afterwards. I hope you will be prepared to answer any questions they may have.
Larry Chartrand, Associate Professor, Faculty of Law, Common Law Section, University of Ottawa, as an individual: It is a pleasure to be here.
[Editor's note: Mr. Chartrand spoke in several native languages.]
Those are just a few of the languages indigenous to the territory that mean "hello."
I wanted to bring a bit of a different perspective to the committee in terms of Metis identity and rights. I wanted to focus on the perspective of collective human rights, in particular those identified at international law, most recently reflected in the declaration of indigenous peoples rights. I want to look at Metis identity and rights issues within that lens.
I want to begin by making the point that self-identifying Metis peoples in Canada benefit from the provisions of the declaration on the rights of indigenous peoples, just like any other indigenous peoples would, subject to satisfying the criteria of what constitutes an indigenous people for the purposes of the declaration. Not all self-identified Metis communities may indeed satisfy the criteria of indigenous people. I have listed some of the criteria in my statement. In particular, one of them is important to keep in mind: the existence of the Metis community prior to the effective assertion, for example, of colonization or effective government control by European authority. The existence of Metis communities prior to effective colonization or effective assertion of government control is critical in terms of whether they meet the criteria for benefiting from the rights under the declaration.
As you may or may not know, the criteria comes from the Powley decision, and the use of the term "effective government control" comes from the Supreme Court of Canada decision in Powley. On that point, Powley is fairly consistent with the declaration on the rights of indigenous peoples.
There may be self-identifying Metis communities that do not qualify as an indigenous people because they do not satisfactorily meet all of the criteria necessary as qualifying. That does not necessarily mean they do not enjoy rights. They may still be able to enjoy cultural rights, minority peoples' status rights or other protections and international instruments. They may also enjoy rights based on the indigenous legal traditions of the people to which half of their ancestry comes from, for example, Cree or Ojibwa. Under the Cree or Ojibwa legal traditions, self-identified Metis communities may be part of the Cree people depending on those people's legal traditions.
Assuming that a people who is self-identified as Metis qualifies as an indigenous people for the purposes of the declaration, there are some important considerations I would like the committee to keep in mind: Dealing with identity, political rights and land rights. I want to go through those three main areas in particular.
It has to be kept in mind that the declaration states what the minimum human rights standards are that states must comply with to ensure good faith fulfillment as a member state of the United Nations in terms of following the Charter of the United Nations.
The declaration was adopted by the General Assembly. States who are members of the General Assembly have a good faith obligation to comply with declarations that have been voted and accepted by the assembly. Canada is no exception.
Those minimum standards need to be identified and addressed in the Canadian context. It is no surprise, though, that much of Canadian law, in both its legislative and common law and constitutional forms, violates most of the standards in the declaration.
Indeed, I would argue that the entire doctrine of Aboriginal treaty rights — because it is based on fundamentally racist principles of superiority of non-indigenous peoples when they colonized this territorial — is a violation of the declaration's fundamental principles. That is why a new approach is necessary. That is why the declaration needs to be an integral and effective part of Canada and it needs to be the law of Canada.
On the issue of Metis identity in particular, Article 33 says that the UN declaration states that:
Indigenous peoples have the right to determine their own identity or membership in accordance with their customs and traditions.
In other words, the declaration recognizes the Metis nation's laws and legal traditions as the sole source for determining who belongs to the Metis nation in question. Think about the fact that the Supreme Court of Canada in the Powley case decided to unilaterally identify membership criteria as to who belongs to a Metis community. This in itself is a violation of this principle.
Another somewhat disturbing concern regarding the Powley case — and this seems to come out of provincial approaches to Metis resource harvesting right issues — is the fact that the decision has been understood as limiting rights recognition to Metis collective social organization at a local community level geographically; very limited to specific geographical communities. Most provincial governments insist that if you are Metis and that Metis specific community has to show those Aboriginal rights, that in itself violates the right to self-determination of Metis people. In particular, Article 9 of the declaration states that indigenous peoples and individuals have the right to belong to an indigenous community or nation in accordance with the traditions and customs of the community or nation concerned.
This would mean — take the Metis of the West into perspective — that it would be up to the Metis communities of the West to identify at what level of social organization they want to pursue a claim. It may mean at that regional or national level and that is a right that an indigenous people possesses in terms of self-determination. They should not be forced by judicial precedent to make claims based on local community, geographical-specific communities, divorced from their larger identity with the Metis nation as a whole. The principle of self-determination recognizes that Metis peoples can assert rights at the level of their social organizational choice. That relates to the issue of Metis political rights.
The Metis possess the right to self-determination, and that right, under the declaration, includes a broad range of authorities — political, legal, economic, social and cultural institutions. What is dramatically different from the collective human rights of indigenous peoples articulated under the declaration and our domestic Aboriginal rights doctrine as interpreted by the courts is the issue of self-government. The courts have interpreted it very narrowly. I go on, in the next page, to identify the major criticisms of that kind of narrow, restrictive approach.
As Professor Morris mentioned, this kind of outcome creates a requirement for a level of proof for each Aboriginal nation across the country on each subject matter through a multitude of lawsuits that is almost unimaginable at expense that is almost incalculable.
If an Aboriginal nation, including the Metis nation, wants to assert self-government, they have to do so on every piecemeal subject matter over time. It will take millennia to acquire anything close to a holistic comprehensive self- government authority power in this country through the courts. The declaration, however, does not require that. It is consistent with the status in the United States with the American tribes. They start off with the full force of sovereignty. It may be whittled away by congressional power over time, but they still have the whole.
That is what the declaration says is the minimum collective human rights requirements of indigenous peoples in the world, not what we do here in Canada through interpretation of section 35 of the Constitution.
The other important aspects of the declaration relate to Metis lands. Again, Canadian jurisprudence parts way historically with the human rights that belong to indigenous peoples in international law under the declaration, although I add the positive note that the recent Haida and Taku River decisions acknowledge — and you will not see this anywhere else but in the Haida and Taku River decisions — the prior sovereignty of indigenous peoples and the need to reconcile it with Crown sovereignty. They do recognize the pre-existing sovereignty of indigenous peoples. The Supreme Court of Canada, for the first time in Haida, did that. That is a major turning point in terms of reconciling sovereignty between the settler peoples and the indigenous peoples.
In fact, the decision acknowledges that, at best, the Crown had de facto sovereignty — in other words, sovereignty by sheer power and sheer presence, but no legal sovereignty. Legal sovereignty can only be acquired by an effective negotiation and consensual transfer of jurisdictional authority by the indigenous peoples to the Crown through treaty. That is the only way Canada can acquire de jure sovereignty, legal sovereignty. That was stated by the Supreme Court of Canada in the Haida and Taku River decisions. It has not been emphasized much, but it is a significant point. It is a landmark significant point.
In terms of Metis peoples' rights to land, that is the way to acquire territory for Canadian sovereignty through negotiated treaty settlement in a de jure way, in a way that upholds the honour of the Crown, and that applies to the Metis peoples as it does to other indigenous peoples in the country. It applied, in my opinion, to the Metis who negotiated the transfer of territory under their control to Canada during the Manitoba Métis Settlements Act negotiations by the provisional government of the Metis nation and Canadian parliamentary authority. It applies to that agreement, which became embodied in the Manitoba Act. It applies to the lands that were promised to the Metis under the Manitoba Act.
The case of the Manitoba Metis Federation is before the Supreme Court of Canada as we speak. Arguments have been made and the court is now rendering its opinion. We have to wait to see whether that agreement was honourably applied and upheld, whether the promises were fulfilled. In my opinion, based on research and work conducted over 25 years, the promises were not adequately fulfilled. However, we have to wait to see what the Supreme Court of Canada says on that.
In conclusion, although I realize my conclusion is a bit hard-hitting now that I take a second look at it, if this country wants to go down in history as one of the most notorious violators of fundamental human rights in the world, then just continue with the status quo. Politically and legally, to do the right thing is to become a human rights affirming nation and not an entrenched violator of human rights. Such a path, however, necessitates including indigenous peoples within the Canadian federation as equal and sovereign constituent political units that together comprise a fuller and more complete federation. To achieve this end, Canada needs to, at a minimum, adopt the legal standards in the UN declaration and make them the law of Canada. In this way, the identity and rights of the Metis peoples will be respected and help make Canada a true multinational federation and a model for the rest of the world on how peoples from different cultures and backgrounds can unite for a common purpose and essentially become greater than the individual parts.
I would be happy to answer questions at your convenience.
The Chair: Thank you, professor.
Please proceed, Ms. Macdougall.
Brenda Macdougall, Chair, Métis Research, Department of Geography, Faculty of Arts, University of Ottawa, as an individual: Thank you for the invitation to appear here. I cannot as eloquently say hello in as many languages as Mr. Chartrand can, but tansi from Western Canada.
My work as a scholar of Metis has been focused on community and family histories. Powley, of course, has spoken to the establishment of the notion of community, but we are wrestling with what constitutes a community. Is it a fixed locale? Is it a congregation of people? Also, what are the processes by which people articulate their sense of social, cultural, political and economic cohesion?
I would argue that we need to look at intergenerational family and cultural histories and research. Much of this work comes out of the fur trade documents across Canada, and it is important not to fixate on specific locations, pinpoints on a map. There are a number of self-identified and acknowledged Metis communities today. Red River is, of course, the most prominent with 26 individual parishes that comprised that place in the 19th century. Barouche on the South Saskatchewan; Edmonton; Île-à-la-Crosse, Saskatchewan and Sault Ste. Marie are examples. You can mark all of those places on a map, but the existence of those very specific locales is a modern thing, not a historical reality. The Metis emerged out of the fur trade. They emerged as a people of movement. The fur trade required and necessitated a great deal of geographic mobility in order to make that economy function.
If we trace family lineages, we find them in all sorts of locations, all tracing themselves to the same original ancestors or progenitors. That does not mean they do not have a sense of regional histories or community histories. They also have a much broader swath of a homeland that is very broadly defined and in a bit of a dispute at this stage with regard to what constitutes a geographic Metis homeland.
There is some sense in a modern context that there is a confusion about who Metis people are, and there is a fixation on "mixedness" as a primary ingredient; the "mixedness" of their bloodlines, and that muddies the waters because First Nations people and Inuit people share the same level of mixing that Metis people have. If we focus simply on biology or race, we are going to miss the essence of what a community is actually constructed of; that is, the world view, the outlook they have on life and the way they act upon that outlook on life.
In Cree this world view would be expressed by the term wahkootowin, which is "all my relations;" in Sioux it would be tiyospaye; and in Dene it is etoline. All of it speaks to the notion of citizenship, membership, naturalization and resting in the bonds of kinship. "Kinship" is not simply your individual family, your parents or grandparents or children. It is everyone that is part of your constructed social space. There are processes to actually adopt people into communities. There are ways of bringing people in and naturalizing them as citizens within those communities that are all described historically in great detail but, because of a fixation on race, we have missed that documentation. We have missed those elements of Metis history that have been left in all sorts of records, from missionaries, to fur traders, to their own narratives. Metis people have told their own stories historically and we can hear their voices.
I do not think that people historically had any confusion about who the Metis people are. Canada has always known and recognized who the Metis are. They certainly knew it in Red River in 1868, when they showed up to survey the river lots and displace people. They certainly knew it during the treaty processes of the 1850s and the 1870s, when they disallowed Metis from signing into treaties because they felt they were not, in fact, Indians and so they were a distinct people. Canada certainly recognized it when it set up the scrip system of the late 19th century to extinguish Metis Indian title to land. It certainly knew it in 1885, when it turned guns on them at Batoche. I do not think there is a great deal of historical ambiguity about what constitutes the Metis community and nation.
In a modern context, though, Metis identity is muddled by notions of legality and blood that come out of the Indian Act. A lot of the time, Metis people are seen as the not-quite-Indian-enough people. That does not acknowledge or recognize the long history that Metis people have as relatives of First Nations people, the types of alliances that they had with First Nations people, and the types of social bonds that they built with non-Aboriginal people, fur traders who came into their territories and those people that they naturalized as citizens within their own communities.
I think there is a great deal of work still to be done on Metis identity in a historical context. There has been a fixation on Red River as the source and centre of all things Metis and that does not necessarily reflect a true historical interpretation of who the Metis people were and who other 19th century and 18th century people understood them to be. I think we have only just begun scratching the surface of Metis research in Canada.
That is all I have to say. Thank you again for inviting me.
The Chair: That was very interesting.
Senator Lovelace Nicholas, you will lead off with questions.
Senator Lovelace Nicholas: Welcome.
I asked this question before about self-identifying as Metis. I have to show documentation to prove that I am an Aboriginal person and so do my children. I really cannot understand that. Why you and not me?
Let me put it another way. If I were to identify as a Queen's relative, will they take my word for it? This how I am getting this. Either I just do not understand it or it needs to be explained to me more — I do not know. Being able to self identify as someone, some race, I certainly have a problem with that.
Ms. Macdougall: I think there has been an emphasis on self identification for sure, but I think that that language probably misses the point of what goes on within the Metis affiliates, the political organizations. You have to produce extensive genealogies that have been verified by independent bodies.
In Manitoba, the body that verifies the genealogical history is the St. Boniface Historical Society. They hold the majority of the collections. In Saskatchewan, it has to be verified by independent genealogists. Here there is a registrar that also verifies. There is extensive genealogical work that must be done before you can claim affiliation in the organizations, which is independent of people necessarily declaring themselves to be Metis outside of those organizations.
That is, perhaps, where the catchment issue is.
Senator Lovelace Nicholas: Maybe so.
It was mentioned by Mr. Chartrand that you have a court case in the Supreme Court and that you are confident that it will go your way. Am I correct, or did I misunderstand again?
Mr. Chartrand: No. Actually, in the federation case, the MMF lost at trial and at the Court of Appeal levels. They lost on a number of grounds. I have a feeling that the decision will likely overturn some of the findings of law that were applied wrongly both at the trial and Court of Appeal, in particular, the legal significance of the agreement to set aside 1.4 million acres in section 31 of the Manitoba act. They will likely characterize that as a legally binding agreement and not just something that was a political decision to dispel those Metis who are causing trouble. That is the nature of the lower court decisions in regard to their claim.
I have a feeling the Supreme Court of Canada will overturn that. I am not sure, but I have also a bad feeling that they will lose overall. I do not think that the MMF will get a declaration from the Supreme Court of Canada that the act is the embodiment of a treaty, necessarily. I am a bit worried that they will not go that far. There is some analysis that goes into why I feel that way. Judging by some of the signals that have come from the court in other cases, like the Cunningham case, that is my concern.
Senator Lovelace Nicholas: If you would have said otherwise, I was going to tell you good luck because it seems to me that every time Aboriginal people want to prove that their treaty is to be honoured — that is, for fishing, hunting or what not — they have to go to the Supreme Court. I thought maybe you were more successful or something. Thank you.
Mr. Chartrand: I would be pleasantly surprised if they did. I would be a beneficiary.
The Chair: I have a list but I will ask a quick question of you, Mr. Chartrand, if I may.
You said the Powley decision is consistent with the UN declaration. Then you said in the Powley decision it restricted things to communities. You are speaking on a national basis under the UN declaration. Can you explain that?
Mr. Chartrand: Yes. I think Powley is inconsistent with the UN declaration on the self-determination of the Metis to determine at what level of social organization they want to pursue their political collective organization and society, and at what level of social organization they want to make claims.
What is consistent with the UN declaration and Powley is the significance of when you identify a Metis people who can benefit from the declaration. That is a people who existed prior to effective government control in the territory, which means more than just simply asserting sovereignty through some charter like the Hudson's Bay charter. It means on-the-ground enforcement capability inconsistent with the governing authority of the indigenous peoples of the time. Until you reach that level of presence, sovereignty has not been successfully asserted, or colonization effective in the territory.
The Chair: I knew this would be complicated, but not this complicated.
Senator Dyck, possibly you can help us out here.
Senator Dyck: No, I do not think so. Thank you, Mr. Chair
Thank you for your presentations tonight. I guess one thing that might help clarify would be if you would give us a more fulsome description of what the UN Declaration on the Rights of Indigenous Peoples says with respect to Metis identity. From what I could gather, you were saying it is the existence of a Metis community before colonization, and then you threw in that word "sovereignty." Then I thought was not sovereignty kind of a colonial term as well? In sort of pre-colonial time, if you had your own community you might not have considered yourselves as sovereign but you were self-sustaining, I guess, or self-aggregating. You looked after yourselves.
The more I talk about it the more confused I get. We are probably using language that is based on the British colonial model versus language based in a community that has different terms like the one that you used, Ms. Macdougall, wahkootowin. Maybe part of it is the language barrier in determining that. Am I making any sense?
Mr. Chartrand: I appreciate the question. I am applying the term "sovereignty" in a broad and social sense as basically meaning the ability to govern yourself without interference by another external sources. That definition focuses on the self-determination aspect of having that autonomous authority.
That is very much in line with Cree traditional philosophical beliefs about their relationship to the land and with others. The Cree, just like the Metis, protected that independent authority through various diplomatic means: treaty, the other diplomatic arrangements with other tribes prior to contact with Europeans during the period of contact. That autonomy was very highly regarded.
Sometimes it is misleading to use the term "sovereignty" because it does bring in the English, Western European baggage with it, and I do not mean to bring in that baggage.
Senator Dyck: It is important to have a definition. Dr. Macdougall, you were talking about how you can take the genealogical route through different organizations in Manitoba and Saskatchewan, and then you somehow get a definition. I cannot remember the name of the group in Manitoba, for example, but does that mean that you would then be a Metis person in Saskatchewan? Would that mean you are Metis in Manitoba? Would it mean you are Metis from a national definition? Do we need a national definition? If we have existing Aboriginal and treaty rights, should there be a sort of national definition that has to fit that so that when you have these court cases you have some way of saying, is this person Metis by the federal, colonial definition? Or should we scrap all that and go with the UN?
Mr. Chartrand: Look at all the problems the Indian Act has in defining Indians. I do not think that would benefit the Metis to have that approach. Also it is contrary to self-determination of indigenous peoples to determine their own citizenship and their membership within their communities and peoples and nations.
Yes, I would not want to go down that road. I mean the Powley case has already caused a problem by creating a judicial version of the Indian Act as it is applied to the Metis by creating that criteria, which some may not satisfy. You get Metis who enjoy rights and Metis who do not. You get first-class Metis and second-class Metis.
That is what you get when you have a national, federal government-imposed process, whether it comes from Parliament or the courts. That is why the declaration does not follow that approach.
Ms. Macdougall: I think, in some respects, the courts and legislation are starting to get ahead of grounded historical research. As researchers we are steadily doing and collecting and analyzing and interpreting, and cases are going to court because people have legitimate need.
The Manitoba Metis Federation case went to court in the early 1980s. It dates back that far. There is a land claim outstanding in northern Saskatchewan dating back to the mid-1980s or early 1990s. I do not remember the dates. There are people who are arrested all the time fishing or hunting who are trying to support themselves. They have real needs in communities to go forward with things like Powley and other lower court decisions.
At that point we activate a research process that then starts looking for those community realities, starts looking for genealogies, a matrix that either supports, and in some cases does not support, a historical existence of a community. It does not always come out that you can prove that a community existed historically.
Senator Dyck: For example, within my family history, on my mother's side, I have a great-great-great-great- grandfather who was a chief actor within the Hudson's Bay Company who married into the Cree. Part of his family became Metis and part of his family became Cree on the Gordon First Nation. Most of them became part of the Gordon First Nation. Some people say I am Metis, which I do not feel that I am because I do not have the cultural or community links. However, if we went the genealogical route, would I be considered Metis because I can trace it right back to the 1700s?
Ms. Macdougall: I think that is what is interesting. I have the same family history and reality. We are on the Metis side and then there are people in treaty.
The reality of what happened in the 19th century is when the treaty process came through, and therefore the Indian registration process came through, it divided families and people made choices: sometimes they were economic, sometimes they were political and sometimes they were social. We do not know, I think, the full range of decision-making processes that went on, but some people certainly went into treaty, some people stayed out of treaty and took the scrip process. Biologically there is little difference between those people, but socially they made a conscious decision, post-treaty era, to start identifying in those spheres. Sometimes, legally, they had to only identify in those spheres.
There was not a lot of opportunity, depending on the regions you were in, to maintain the close social bonds that you would have once had as family. As the generations progress, the gulf between us becomes wider and wider.
Senator Sibbeston: I think when you deal with the subject of Metis it is a very difficult task because, unlike the First Nations or the Inuit people, as it were, they live in distinct areas and as a group they are located in the South on reserves and in the North in communities. If you go to the eastern Arctic, everyone there is Inuit, even though there is sometimes White blood in them, and they do not make that distinction.
Some of the qualities, it is interesting now that the Metis are asserting themselves, because in many ways I find that the Metis people are very independent. They do not want to be in any way limited or controlled or identified. They just want to be basically left alone to roam and be independent. There is tremendous pride in being independent, and that is one of the real characteristics that I find of Metis.
In that situation, it is hard because I do not know what our ancestors would think of the Metis people today trying to be recognized as a group of Aboriginal people who need government help because by their own nature they are always independent and have prided themselves in making their own way. I find that interesting.
I appreciate it is a hard task. You are working in an area that is hard and difficult. Apart from in Alberta where there are settlements and in the Northwest Territories where there are communities, where there are First Nations and the Dene and the Metis, that are fairly distinct in terms of their culture and practices, otherwise, here in Ottawa and Ontario and Montreal, where are the Metis? They are just living amongst everyone else.
Professor Chartrand, when you say that the Supreme Court of Canada violated the United Nations declaration because it stated unilaterally what the conditions of membership would be, what is the alternative? The nature of the Supreme Court of Canada is to make a declaration, make statements.
The Metis people, the organizations making presentations before the Supreme Court of Canada, could you not see that as their involvement? They were engaged, in a sense, in describing for the court the situation of the Metis. It was not eventually a unilateral statement in the sense that they were alone in conjuring up these conditions that were necessary. The Metis were very involved. How else could it have been done? How else could the Supreme Court of Canada have dealt with it, do you think?
Mr. Chartrand: I believe that the Supreme Court of Canada, if it wanted to acknowledge more fully the rights of the Metis as an indigenous people, would have deferred to the principles in the UN declaration, which says that the identity of the membership belongs to the community itself, and the determination of who belongs to that Metis people belongs internally to that community, and that it is a question of acceptance of that Metis community's criteria of who the membership is.
I am not saying that whatever a Metis nation or people or community calls their membership code is what has to carry the day. I think there is validity with the Canadian state in terms of its concerns and interests, that it has concerns about Metis identity and criteria and membership, that there should be a dialogue in that determination. However, ultimately, at the end of the day, it cannot be forced onto the Metis community. It cannot be unilaterally imposed is what I meant.
Because they are self-identifying, independent political communities, they and they alone have the ultimate right to decide who belongs within their community, just like Canada as a nation decides who belongs as a Canadian. The United States has no say in the matter, and likewise with indigenous peoples, if you regard indigenous peoples as equal peoples with all other peoples of the world. That is what the minimum human rights belonging to indigenous peoples require.
Powley might be seen as kind of an interim aspect as we move towards a complete Canadian federation inclusive of indigenous authorities, but ultimately that is the criticism and why it exists.
Senator Sibbeston: Is the general movement or the goal of the Metis people in our country to be eventually recognized on the same basis as First Nations and Inuit with the same rights? Do you think that is the goal? Do you think the courts are aiding that situation along as they define and deal with the issue of the Metis? Do you think it will eventually happen?
Mr. Chartrand: I would say that Metis peoples are no different than other indigenous peoples. I do not think the question is whether Metis peoples will get rights like Indian or Inuit peoples. The question is will the Metis peoples get the fundamental human rights that are identified under the declaration. That is the goal, not whether or not we get the rights that Indian people have.
I am probably one of the few Metis scholars who oppose, for example, inclusion under section 91.24 of the Constitution. I do not think Metis are Indians for the purposes of that. I would not want to be included under that. Look what Canada did with respect to the Indians under 91.24.
Senator White: Thank you very much for the presentation as well. It was very interesting. I am trying to get my head around, and I will be specific on location, but as an example, the west coast of Newfoundland where large groups of people would self-identify as Aboriginal, First Nations or Metis; and yet the way Newfoundland came into Confederation, I would argue, is one of the reasons they probably do not have access to that. In fact, the Metis Newfoundland association a few years ago changed its name to the Labrador Métis Association because of that.
Where do you see that sitting? A pre-Confederation decision was made on behalf of indigenous people in Newfoundland. Metis people and Aboriginal people in other provinces did not have that same wrath to deal with as they did in the late 1940s. Do you see those types of groups having the opportunity to re-enter into the Metis nation if they are strong enough, and are there any cases going forward?
The second piece, in looking at one identified as a Metis, we talk about you need to join in to come out as a Metis person. In other words, you have to belong to a Metis community. Should that be a requirement for someone to be a Metis person in this country or should they be able to just identify historical root without being a member of a specific Metis association to be Metis?
We heard from indigenous people from Norway, for example, who were able to self-identify; and once they self- identify and prove their lineage, they really do not have to join an organization. They actually have already done that.
Ms. Macdougall: I guess I will start with the issue of the East Coast people. One of the things that happened post-1982 and the patriation of the Constitution and the inclusion of the three Aboriginal groups in Canada and the naming of them very specifically is the word "Metis" became widely adopted by many people all over the country because they do not fit the Indian Act definition of Indian, non-status Indians. Then 1985 and Bill C-31 sort of resolved — that is a bad word — some of the issues for non-status people as they were reaccepted back into the Indian roles.
However, there is a modern usage of the term that may not correspond to the historical reality of what that word meant. I am not saying that people are not Metis. I am just saying that we do not have a full accounting, I think, of what those elements are of their community that would lead them to that space, with the exception of they have been disenfranchised from other processes of their identity that would be recognized legally within Canada. I think that has been a problem for them.
We used to have the Metis Nation of Labrador and they have renamed themselves an Inuit word now and have re- identified themselves as Inuit people. They were given post-Powley research money, employed some researchers and came to the conclusion that the word "Metis" does not in fact represent the reality of their history. That was their decision to make.
I think that is the first part. We broadly use this term, and it perhaps does not ground itself in historical reality. Since I have rambled on, I have lost the thread of the second part.
Senator White: The other was the requirement to join a specific Metis community to be actually accepted as a Metis person rather than just to prove in some manner that you have the historical references for it to be Metis without actually having to belong to a Metis association.
Ms. Macdougall: I sit here as someone who does not belong to any of the provincial affiliates but has worked closely with Metis communities and does identify as Metis because I belong to a family and a community that are Metis. However, I have kept myself out of the political realm for a number of reasons that are personal in some respects, but it also relates to my role as a researcher. If I tied myself too closely to one group, then I am not seen as impartial by other groups. That started with students 20 years ago. They wanted to know what local I belonged to and I did not want to be in a local because I did not want them thinking I was favouring one group over another.
The fact that I am not in a political organization does not change my historical reality. It does not change my contemporary family reality. I am a member of a community, and I am responsible to my community. I am not Metis because I am an individual; I am Metis because I come from those people and I have decided that my role as a researcher is to give back to my community at all times by doing the kinds of work that they need done.
It is a different mindset, or it has to be a different mental mindset, that you are not an individual; you are the member of a collectivity. As a member of the collectivity, you have responsibilities to that collectivity, and your rights as an individual are a little bit less important. That is my feeling. Mr. Chartrand might have a different sense.
Mr. Chartrand: I tend to agree with that. It is important to make the distinction between someone who has indigenous ancestry and, because of their mixed heritage, can claim that they are Metis. That is a broad definition of the term.
However, that does not necessarily mean that they would qualify for the benefits, for example, of being a member of an indigenous people. The rights of indigenous peoples are collective rights; they do not belong to individuals.
In order to benefit from the rights that indigenous peoples possess — whether you locate them in domestic Canadian law or in international law, it does not really matter — you have to have some sort of connection. The community has to accept you through some sort of acceptance criteria. Then you can benefit as a person who belongs to that collective with those rights. That is the important distinction.
There are a lot of people who claim Metis identity but do not have the necessary acceptance or connection to specific political Metis communities, and it is only those communities that benefit from indigenous people's rights or Aboriginal rights.
Senator Raine: Thank you very much for being here. This is very interesting. When I first looked at the definition of a Metis, it was basically that you can say you are a Metis, so you are a Metis and then you have to be accepted and have ancestry, et cetera, so it is not that simple.
I am a little bit confused as to the benefits of being a Metis in terms of being accepted by the community and the indigenous collective rights. Can you give me some examples of what those rights might be and how they would relate to an individual who is a member of that community or collective?
Ms. Macdougall: I think some of the issues of rights that have come before the courts are both subsistence and commercial hunting and fishing activities, and land rights. They have mostly been in that realm, as they have been for First Nations' court cases as well. It is an assertion of those ancestral rights that allow you to make a living and allow you some sort of economic and political autonomy at the end of the day.
Senator Raine: I would presume that this would be predicated on the fact that you live where those rights exist, because if your community is located in a specific place and you have migrated somewhere else, would you then still have those rights?
Ms. Macdougall: For some of the cases — and Mr. Chartrand might be able to speak better to this — the region more than the village is actually the relevant piece in some of the lower court decisions. For instance, a man was arrested in the Qu'Appelle Valley for fishing because he lived in Regina. The research bore out that there is a wide geographical space in which Metis of the Qu'Appelle Valley operated, which included Regina almost all the way to the Manitoba border.
It is not a pinpoint on a map; it is actually a regional space. He was still living in the region that his ancestors had come from.
Senator Raine: I have a bit of a hard time with that, because obviously the rights and the benefits are not unlimited in terms of hunting and fishing. If everyone came and went hunting, pretty soon there would not be any more animals. Normally, there is a natural selection of who gets to hunt and who gets to fish, and it would probably be decided in the community collective that those people who live here and need to do this for their living would be able to do those activities and your cousin who went to the city and became a doctor does not necessarily have the right to come back on his holidays and go hunting and fishing. Would that make sense?
Ms. Macdougall: In a sense it does sort of self-regulate. I will probably not apply for a hunting card any time soon, because I do not know what I am doing. People in my family probably did once but I am three generations urban now, so it is not a part of my lifestyle. However, I still belong to a regional community and I want people to be able to enjoy the rights that they should have access to. If some people need to hunt to feed their families, that is great. Maybe I need some meat from those people for my family. It should not preclude them from sharing with me, because I have something that I can offer them. It is a quid pro quo or a reciprocal relationship that we would have.
Senator Raine: That is really what a collective or a community is all about — exactly that extended sense of belonging and helping each other out.
Those of us who were here were very taken when the Norwegians appeared before us. It was an informal group hearing, not an official hearing. Are you familiar with the situation in Norway?
Ms. Macdougall: Yes, the Sami.
Senator Raine: When I asked them what entitlements they get as declaring themselves to be Sami, they were very surprised that I would ask, because they get all the same entitlements as any other Norwegian and nothing more, because they live in the city. The Sami people who live in the North, who are actively involved in herding the reindeer, have exclusive rights to herd the reindeer, and they have fishing rights. However, those are for the people who live there.
It was interesting. This was an interesting concept for Metis people to discuss because there is a fear in the greater Canadian context that is it not good enough to be a Canadian, in terms of all the different supports that we receive if we need them — health care and all kinds of things? Entitlements really should not be part of what it is to be a Metis; it is more a cultural connection?
Ms. Macdougall: Canada is a colonial country and we have not shared the same rights and benefits as ordinary Canadians. Our history is one of poverty, dislocation, and social dysfunction as a result of all those things. Until that redress is made, we are not like ordinary Canadians. Our rights put us on a playing field where we might have a chance, but we are not there.
Mr. Chartrand: I would add that Metis peoples were self-determining and independent nations with their own governance and legal traditions prior to the assertion of Canadian authority in the 1800s over the communities as the Northwest Mounted Police became a stronger presence. Prior to that, Metis communities were self-governing.
One of the benefits, of course, of being indigenous and having that political right is to be able to assert political independence and negotiate a relationship with Canada on equal terms. That would be a fundamental right from which indigenous peoples, including the Metis community, who satisfy that criteria of a nationhood or "peoplehood," would benefit.
In terms of hunting and fishing, Metis peoples, like other indigenous peoples, have their own legal traditions for determining how to govern the hunt. The Metis nation of Ontario and other Metis governing bodies in the West have developed their own laws of the hunt. They are more contemporary laws, and in some ways are a bit of a hybrid of traditional law and Canadian law. Metis who want to benefit from hunting will regulate themselves based on that law. That is not to say that the provincial government of Manitoba recognizes that, and the Metis Federation of Manitoba has intervened to represent cases before the courts when people are charged, asserting their authority to govern based on traditional Metis principles of resource management.
That is a benefit too. The benefit is to maintain your culture, be different, and negotiate a fair and equitable place within the Canadian federation. That has not happened yet. The declaration is a vehicle to achieving that, but we have to implement it.
Senator Patterson: I want to thank the witnesses for their very thoughtful presentations. I have three questions. I will try to make them brief, although there were some complex ideas presented by Professor Chartrand.
You asserted that Aboriginal and treaty rights in Canada are built on a violation of human rights of the indigenous people and that the superiority of the colonizing race and de facto but not de jure sovereignty has reinforced an inferior status. I certainly can see that that was the situation in the past. However, I noted that you also said that indigenous peoples can agree to surrender land in exchange for other rights.
With regard to the modern treaties, and I am thinking of the Nunavut settlement with which I am familiar, would you say that they were negotiated more amongst equals? The Inuit were given resources to get legal advice. They even hired geologists to determine where the valuable minerals were, and they did so successfully. Would you say that the modern treaties are not examples of violation of human rights as you described in the opening part of your presentation, or less of a violation?
Mr. Chartrand: Maybe less of a violation. You have to put the negotiation of modern treaties into the context of what Aboriginal rights are in Canada. That is usually the rights articulated by the Supreme Court of Canada in major Aboriginal rights cases interpreting section 35. The interpretation of Aboriginal rights has been very limited. The interpretation of Aboriginal title has been very limited by decisions like Delgamuukw and Van der Peet.
If your bargaining strength as indigenous peoples is Aboriginal rights doctrine, that violates human rights. The Aboriginal doctrine violates human rights. If that is your negotiating basis, you are not negotiating on an equal level from the get-go.
The interesting thing about some of the modern land claims and self-government agreements is that sometimes the parties just want to come to a mutual understanding of what the rights and entitlements of the indigenous people are in relation to provincial and federal authorities, and they compromise on things. They have resources these days; lawyers and experts, et cetera, and they are able to present a powerful case. You can get some substantial agreements that are quite significant in terms of benefiting the indigenous peoples concerned, and they are ratified by the communities.
They are perfectly aware of the limitations of the doctrine of Aboriginal rights, but it is better to have something recognized and protected in the Constitution as a treaty — which is what a modern land claim agreement will do — even though, in an ideal world, where the declaration existed, they might have been able to achieve much more. However, the reality is that having that certainty, even though it may be limited, is better than not having anything recognized, because that is the position of government; you have to prove your rights before you can go the inherent route, not through the courts, for example, so the negotiated settlement becomes the fallback. It is not ideal, but it is a lot better than having nothing recognized.
Senator Patterson: You suggested that a positive example of recognizing the right to self-government, self- determination, might be found in Alberta in the Metis Settlements Accord and the Metis Settlements Accord Implementation Act.
Mr. Chartrand: Yes.
Senator Patterson: Is that a useful example that we might apply elsewhere?
Mr. Chartrand: There is much we can learn from the Metis Settlements Accord and the companion implementation legislation of the Alberta government. It protects the collective interests of eight Metis settlements, which involves a significant amount of territory.
I am a member of the Paddle Prairie Metis Settlement in Alberta, although I have not been there for a long time. That is a very significant territory and members have rights to land as individuals and can develop their land. At the same time, because of the accord, they have self-governing powers. They are limited because it is the provincial government negotiating, not the federal and provincial government negotiating as with Nisga'a.
They were not able to acquire as much self-governing authority through negotiation as otherwise would be the case. However, it provides a good model because it includes Metis Settlements Appeals Tribunal, which is an independent court that has Metis membership on that tribunal. It has a Metis ombudsman's office. It has all kinds of institutions that can be an excellent model in terms of how Metis communities can acquire a degree of self-governing authority on a land base. It is probably under-studied and underappreciated. It does have it is drawbacks though, and it is limited self- governing authority. It is more municipal style as opposed to a third order of government style.
Senator Meredith: I am trying to get my head around everything that you said. Moving forward, Ms. Macdougall, you indicated that you are a third generation Metis.
Ms. Macdougall: Third generation urban.
Senator Meredith: I would assume then that there is some greater percentage of assimilation that has taken place within the broader Canadian society. What percentage of the Metis is looking to gain access to sustainable fishing and land rights in terms of a quantitative percentage? I believe Professor Chartrand indicated this, or it may have been you who presented this. Both of you could probably answer the question.
In terms of moving forward, how will they assert this right? Would land claims agreements already made with various other indigenous groups be split or would there be sharing of land? Are these completely new treaties that would have to be negotiated in order for them to get a piece of the pie, so to speak?
Ms. Macdougall: First, to look at the issue of assimilation, yes, I am third generation urban. My family dates back to Fort Edmonton and its founding, so my lineage goes back a far way. I would not classify myself as necessarily assimilated because I grew up in a family with a sense of community that had all of those traditions and knowledge of our history and background. Am I functional outside a Metis space? Yes, absolutely, but I am acculturated, I suppose, more than I am assimilated.
In northern Saskatchewan, where they filed the land claim for the region, these are people who are by and large there all of the time. Young people have left the community. There is a great out-migration now because there are no jobs for them. Northern Saskatchewan is looking at an unemployment rate of between 80 per cent and 90 per cent in some cases in the villages, so land claims is an important way to try to negotiate your way into an economic land base. For them, that is critical.
For Manitoba, the same things occurred with the MMF case. People were dispossessed from their land. It did not mean they could not find jobs in resource industries, but it does not allow for meaningful economic development that then supports your political sovereignty, self-determination and self-governance.
I do not know how it will all play out because we have not yet had a case where Metis have won a land claim. We do not know how the MMF case will work out. The Saskatchewan case is not even before the courts yet. It is still in a research phase after almost 25 years.
The process of land claims is so long that I do not think most communities would even enter into it. There needs to be a better way of dealing with and perhaps the Metis settlements of Alberta is one mechanism. It only happened in Alberta. Saskatchewan looked at it in 1940s, tried a few experimental farms, declared them a failure and dissolved them by the mid-1950s, whereas the Metis settlements in Alberta had longevity. I do not really know the answer to that.
Mr. Chartrand: I wish I did have an answer to that.
In terms of land base, with respect to having an ability to develop as a people, it requires resources. The Metis, with the exception of the Alberta Metis, generally have been landless because of historical processes. The Alberta Metis settlements have significant populations. They have industry, they have resource businesses and they have strong communities. There is probably more influx than there is "out-flux." They are generally rural and remote communities.
That is not the case with Metis communities outside of Alberta, or even in Alberta who are not able to benefit from the settlements. They have to be bound by the general laws and opportunities that exist for people generally, even though as a people they might be entitled to collective ownership of lands. That was the idea under the agreement that resulted in the Manitoba Act; it was to have a collective ownership of community, to have the communities protected so they could have that continuity of culture and identity.
The importance of having that land base cannot be underestimated. However, that does not necessarily mean that a certain degree of self-governing authority cannot still apply with respect to other matters, like family matters, social matters and health matters. You can have a degree of self-governing authority even in the urban context, based on citizenship according to membership as opposed to over territory. You can have sovereignty over citizenship as much as you can have sovereignty over territory. That can be a possible alternative for Metis living in urban environments and something that was explored in the report of the Royal Commission on Aboriginal Peoples in 1996.
Senator Meredith: In the Manitoba Act of 1870, with respect to lands that were given or party to the Metis, the rights to those lands were given up. I believe that is a correct understanding. If something is given or ascribed by law and my ancestors fail to hold on to that, how can I, five generations later, look for inclusion back into something? You talk about redress. How do you then say, "I am entitled to this?"
Ms. Macdougall: If we look at the case of Manitoba, it is not that people gave up their land after 1870; it is that they were dispossessed from their land after 1870. The processes of the amendments to the Manitoba Act, which occurred unilaterally by Canada and not with any sort of input from the Metis to change that document, resulted in people being dispossessed from their land. They would go out to harvest in the summer and would come back in the fall and find Ontario settlers living on their land and in their houses. It was very much a Goldie Locks and the Three Bears kind of occurrence for a lot of people. There is a famous quote by Sir John A. Macdonald. He said that many times they were going to hold off implementation of the land portions of the Manitoba Act until every Metis half-breed was gone and they had a White Manitoba. Those are not his exact words but that was what he wanted; and that is what happened.
There are still some Metis who managed to hold on to their river lots in Manitoba. In terms of a class system, they were probably the ones most closely affiliated and associated with the Hudson's Bay Company and who had a measure of education and political acumen behind them to protect themselves. However, other people had no such protection and moved out to escape that influx of non-Aboriginal settlement. That is the issue; and it is the issue in a host of other regions across the country. It is not that we gave up our land. It is that we were dispossessed from our space by all sorts of Canadian legal mechanisms that were introduced to us.
Mr. Chartrand: To follow up on that, the Manitoba Act is the outcome of a negotiated treaty between the Metis and Canada. Part of that treaty involved the right of Canada to acquire the territory in Manitoba and the northwest in exchange for certain concessions that Canada made to the Metis government at the time, including setting aside 1.4 million acres of land.
How that was implemented, though, was very destructive to the Metis being able to retain that land. They did it in a very arbitrary fashion by using lots. Pull out a number and you get to locate over there, apart from where your family and kinship are. How many people will do that? The delay in the implementation was problematic. My great-great grandfather, who had land on Whitehorse Plains, was Joseph Pierre Chartrand. He was a Buffalo hunter out on the plains and came back. In fact, Whitehorse Plains was one of the most notorious areas where the Metis were displaced when settlers came and settled. The Metis were unable to establish their claims so my great-great grandfather had to go west. He wound up settling in Saskatchewan largely because of that process. I would probably be in Manitoba today and have land if it was not for those abuses by the Canadian government in the implementation of the Manitoba treaty.
Senator Meredith: There is still a lot of work that needs to be done. Hopefully, our study can help move those issues forward.
The Chair: Whitehorse Plains is where I was born and raised. We stayed. We were too stubborn to leave.
I thank both of you for appearing before us tonight. You have given us something to think about and mull over as we proceed towards trying to draft a report on this subject, which has not been dealt with until now. I guess in the 1990s there was a Metis study done on veterans but that is all. We are in uncharted waters.
Senators, we will come back in camera to deal with future business.
(The committee continued in camera.)