Osgoode metis conference on metis treaties issues final 2016

Recent Developments in Metis Research and Community Identification:

The Metis Treaties Project and Implications for Metis Community Identity

Larry Chartrand, B.Ed., LL.B., LL.MFaculty of Law, University of Ottawa

YOUR FIRM LOGO

The Daniels Case, Sept. 21, 2016

Outline

• A Metis Treaty history− Addressing a misunderstanding− History and Court Decisions

• Reconceptualizing the Concept of Community− Implications (Vautour case)

• Research Implications (Isaac Report, MTP)− Inclusive process− Metis specific research resources

Metis Treaties?

• There are common misconceptions …

• “Technically speaking, Canadain Metis do not have treaty rights, ...” (Arthur Ray, 2016)

Yet there is a rich Metis Treaty history…• There is a history of Metis – Canadian treaty

relations and Metis – First Nation treaty relations but the legal implications of these agreements have not been seriously considered or have been misunderstood.

• Some examples include: Selkirk Settlers Agreement (1815)Robinson/Huron Treaties (1850)?Manitoba Agreement (1870)Metis Adhesion to Treaty 3 (1873)Federation of Metis Settlements Alberta (1989)Sahtu Metis Land Claim Agreement (1993)Northwest Territory Metis Land Claim Agreement (2015) AIP

British/Canadian Policy of Metis Community Denial…• It is true, however, unlike in the First Nation context that treaty

making with the Metis by the Crown was the exception rather than the rule.

• British/Canadian policy stated that there could not be an independent Metis identity and polity. If you identified as Metis, you either joined an Indian band under treaty or you took scrip if you had the option and became White.

• This kind of discriminatory and inequitable policy is responsible for the potential existence of many outstanding land and self-government claims throughout Canada today.

Findings

• As colonized peoples who are indigenous to territories in North America, there is no logical or compelling reason to distinguish Metis rights from First Nation rights. Colonial imposed racial concepts used to manage the civilization of the peoples Indigenous to North America was contradictory to Metis political independence and fueled federal policy of not recognizing independent Metis communities nor engaging in treaty relations with them.

• However, the factual existence of Metis polities resulted in inconsistent application of this policy of denial.

• Exceptions are evident in the history of Métis-colonizer relations.

• As the Supreme Court of Canada stated in Powley, the Metis peoples’ possess “full status as distinctive rights-bearing peoples whose own integral practices are entitled to constitutional protection under s. 35(1).”

• Metis are entitled to recognition and reconciliation requires that the injustice of the past should not haunt the present. Metis should have a right to participate in the specific and comprehensive claims process throughout Canada.

History and Court Decisions: “neither do the two paths cross”

• The historical truths determined by the judiciary in Metis rights cases like the Manitoba Metis Federation or the Blais decision are often not compatible with the historical truths documented in the scholarly research.

• Judicial “truths” are very much contested. • Colonial assumptions influence judicial determinations.

− This is particularly true of how the trial court in MMF denied the existence of Metis Aboriginal title. Failed to distinguish between internal claims to land and

external claims to territory.

Political Responsiveness and Reconciliation

• Such cases may technically be the last word regarding the relevant historical conclusions for the purposes of legal rights determination.

• But such cases will have very little moral weight and will not be regarded as definitive of the issues.

• In this context, one would expect policy makers to be more receptive to the possibilities of political intervention in developing options to promote reconciliation that recognizes the disconnect between the legal resolution and the more accurate and fuller accounts of the historical realties at the relevant time.

Reconceptualizing the Concept of Community

• One of the more significant challenges facing Metis Rights jurisprudence is how to define and identify the rights-bearing community? Is it is a geographically fixed settlement, a regional network of settlements, or a mobile community of virtually boundless dimensions or a combination of these characteristics?

• Kerry Sloan has identified 40 cases where Powley has been followed and of those 40, only three cases resulted in successful Metis claims. None have been successful outside of the “Metis heartland” of the prairies.

The Need for Judicial Recognition of the Metis Perspective • There is uncertainty and confusion around identification and

recognition of the proper rights-holding Metis community for the purposes of exercising s. 35 Aboriginal rights.

• The test being applied by the courts are in many cases incompatible with inherent Metis community characteristics and thus fail to fairly recognize the rights claims being made.

• In particular, there is compelling criticism of judicial approaches that have ignored the different cultural and lifestyle patterns of Metis communities and have inappropriately imposed a one size fits all legal test for determining the existence of historic Metis rights-bearing communities and/or determining the territorial scope of the right claimed.

R. v. Vautour (2011)

• Claimed that he was part of a Metis community in New Brunswick.

• The Vautour case is illustrative of how a claim for Metis status was denied by the court due to a lack of community connection to a pre-existing Metis community.

However, the evidence relied upon was based on individual genealogical analysis.

Research Implications

• Thomas Isaac’s report is consistent with the views of the Metis Treaties Project that the Metis are rights-bearing peoples and that a treaty model is appropriate for resolving claims and reconciling Metis interests with Canadian interests.

• Isaac recommends that the process for determining a Metis rights framework “must include all organizations that purport to represent Metis …”

• However, resources will be needed for communities to undertake the necessary research to determine whether their communities qualify for treaty negotiations.

Marcee

Additional Resources

• www.metistreatiesproject.ca− Researchers associated with the project include:

Larry Chartrand, University of Ottawa Catherine Bell, University of Alberta D’Arcy Vermette, University of Alberta Brenda Gunn, University of Manitoba Darren O’Toole, University of Ottawa Sébastien Grammond, University of Ottawa Adam Gaudry, University of Saskatchewan Nathalie Kermoal, University of Alberta Paul Chartrand, Special Advisor