RCAP Report Supports Resource Rights for All  Métis

CAP has undertaken a campaign to ensure that all provincial departments of Natural Resources are aware that the Royal Commission on Aboriginal Peoples supports recognition of Aboriginal resource rights for ALL Métis in Canada today.  Provincial and Territorial Ministers/Departments of Natural Resources have received the text of the extractions below.  CAP Vice President Frank Palmater is monitoring responses as they arrive  The responses (or lack of them) will be posted here.

Note:  All of the quotations and page numbers below were extracted from the final Report of the Royal Commission on Aboriginal Peoples  Volume 4: Pertspectives and Realities - Chapter 5: Métis Perspectives

They point to early historical references to the term on maps of areas outside Métis Nation territory and contend there is evidence that when the term was inserted in the constitution in 1982, it was intended to apply to all Métis people. [pg. 205]. 

The legal definition of Métis cannot be resolved without a Supreme Court of Canada ruling. Whatever the supreme Court eventually decides, though, the practical legal consequences are likely to be the same, because section 35 unquestionably covers all "Aboriginal" peoples. That "Aboriginal" is not exhausted by the phrase "Indian, Inuit and Métis" is made clear by the word "includes" in section 35 (2). Therefore, even if Aboriginal peoples outside the Indian, Inuit and Métis Nation categories are not "Métis" for purposes of section 35, they nevertheless have the full protection of that section since they are indisputably "Aboriginal". That logic has not been disputed by the government of Canada or of a province, and unless it was, we would see no need for further amendment to section 35, as some eastern Métis have proposed. [ pp. 208-9]. 

We are convinced that all Métis people, whether or not they are members of full-fledged Aboriginal nations, are covered by section 91 (24). [pg. 209]. 

The Supreme Court of Canada held as early as 1939 that Inuit ("Eskimos") are included within the scope of section 91 (24) because the section was intended to refer to "all the aborigines of the territory subsequently included in the Dominion", and there is every reason to apply the same reasoning to Métis people. [pg. 209]. 

54. Section 91 (24). For greater certainty, a new provision should be added to the Constitution Act, 1867, to ensure that Section 91 (24) applies to all Aboriginal peoples. The new provision would not result in a reduction of existing expenditures on Indians and Inuit or alter the fiduciary and treaty obligations of the federal government for Aboriginal peoples. [pp. 209-10]. 

Recommendation 

Section 91 (24) 
4.5.3 The government of Canada either (a) acknowledge that section 91 (24) of the Constitution Act, 1867 applies to Métis people and base its legislation, policies and programs on that recognition; or (b) collaborate with appropriate provincial governments and with Métis representatives in the formulation and enactment of a constitutional amendment specifying that section 91 (24) applies to Métis people. If it is unwilling to take either of these steps, the government of Canada make a constitutional reference to the Supreme Court of Canada, asking that court to decide whether section 91 (24) of the Constitution Act, 1867 applies to Métis people. [pg. 210].

At the core of official federal government discrimination has been the government's consistent refusal to acknowledge that Métis matters fall within its jurisdiction under section 91 (24) of the constitution. [pg. 219]. 

The refusal by the government of Canada to treat Métis as full-fledged Aboriginal people covered by section 91 (24) of the constitution is the most basic current form of governmental discrimination. [pg. 219]. 

Most legal rights of Métis peoples are rooted, directly or indirectly, in Aboriginal rights. Since 1982, the strongest legal basis for making that connection to Aboriginal rights is section 35 (1) of the Constitution Act, 1982, which states that "the existing Aboriginal and treaty rights of the Aboriginal peoples of Canada are hereby recognized and affirmed", and section 35 (2) of the same instrument, which defines Aboriginal peoples to include "the Indian, Inuit and Métis peoples of Canada". It is important to understand, however, that section 35 does not grant Aboriginal rights in itself. Aboriginal rights existed before the 1982 constitution. They predate the existence of Canada, in fact, having their origins in the earliest indigenous societies of North America. As Chief Justice Dickson said on behalf of the Supreme Court of Canada in Guerin v. The Queen, Aboriginal rights are legal rights "derived from the Indian's historic occupation and possession of their tribal lands". [pg. 273]. 

Basic constitutional principles, as currently understood and applied in Canada and the rest of the democratic world, simply leave no room for doubt that Métis Aboriginal rights are independent from and equal in status to those of other Aboriginal peoples. [pg. 281]. 

In our [Supreme Court] opinion, Guerin, together with R. v. Taylor and Williams (1981), 62 C.C.C. (2d) 227, 34 O.R. (2d) 360 (C.A.), ground a general guiding principle for section 35 (1). hat is, the government has the responsibility to act in a fiduciary capacity in respect to Aboriginal peoples. The relationship is trust-like, rather than adversarial, and contemporary recognition and affirmation of Aboriginal rights must be defined in light of this historic relationship. [pp. 294-95]. 

Does the fiduciary obligation apply to Métis peoples. It appears that it does. It will be recalled, first, that the Supreme Court of Canada was careful in Sparrow to decide it as a duty owed to Aboriginal peoples, not just to Indian people, and the court did this with full knowledge that section 35 (2) now defines Aboriginal peoples to include Métis. Moreover, it seems clear that although section 91 (24), enacted in 1867, refers expressly only to Indians, that term embraces all Aboriginal peoples, including the Métis. The easiest type of Métis rights litigation, from the procedural and evidentiary points of view, would be a challenge or challenges to the constitutional validity of questionable federal and provincial legislation or actions concerning those rights. The cases now before the courts include claims of that type. [pg. 305]. 

Whatever their legal rights might be, the Métis people of Canada appear to have an indisputable moral and political right to immediate political action by both federal and provincial governments to deal with Métis concerns. It is not necessary to dwell at length on the sources of that entitlement, since they are obvious. [pg. 307]. 

Another reason for taking advantage of the political window now open goes back to the legal issues discussed earlier. If a political solution is not arrived at soon, the courts will be left to their own devices. several legal actions are already in progress, and litigation will increase, with an unfortunate impact on rational decision making by governments, unless something stops it soon. Nothing is likely to stop the litigation process except agreed settlements of Métis grievances on terms more general and more sophisticated than courts can fashion. [p. 308-9]. 

Unilateral solutions, however well intentioned, will not be satisfactory. ... What is needed is bilateral and multilateral negotiation between the government of Canada (in conjunction, where appropriate, with provincial, territorial and Aboriginal governments) and the Métis people in question. [pg. 309]. 

The Canadian Charter of Rights and Freedoms and the Canadian Bill of Rights add important guarantees of cultural expression and equality to the totality of Métis legal rights. The equality guarantee is especially significant given the benefits available to other Aboriginal peoples that have been denied Métis peoples. [pg. 309]. 

The fact that a strong case might be made for legal relief does not mean that Métis people would be wise to make litigation the primary route to restitution or that governments would be either wise or just stand back and await the outcome of litigation. Lawsuits are slow, costly, unpredictable, piecemeal and clumsy. Negotiated political solutions to problems as complex as those of Métis rights are much to be preferred over judicial ones. [pg. 310]. 

The government of Canada and, where appropriate, the governments of the provinces and the territories are obliged, politically as well as morally, to make arrangements for such negotiations as soon as possible. The political wisdom of doing so should be obvious. As to the moral obligation, even if Métis people had no legal entitlement to redress, their moral claim to justice would be overwhelming, whether measured by the standards of international law or by the even higher domestic standards of fair play in which Canadians have always taken pride. [pg. 310]. 

The same holds true for those parts of the Métis Nation homeland in Ontario that fell outside the purview of the Dominion Lands Act. In the absence of treaties by which their Aboriginal rights were surrendered, Métis people within the original boundaries of the province of Ontario, like their counterparts in British Columbia, possessed the same rights as Métis people covered by the Manitoba Act and the Dominion Lands Act. Those rights have never, however, been recognized, much less respected. [ pg. 352]. 

In terms of traditional harvesting rights, the primary area of importance to many Métis in wildlife. Included here are the right to hunt game and fowl, to trap furbearing animals, and to take fish. This is important because many Métis are actively involved, to varying degrees, in these activities today. In addition, Métis also gather berries and other edible plant life, use plants and roots for medicines, use wood for cooking and warmth, and collect materials for handicrafts. Resource harvesting is undertaken for both individual consumption and commercial purposes. Many Métis harvest big game and fowl in the autumn. Those living a subsistence or traditional lifestyle hunt and trap throughout the year. A large number of Canadian wild fur trappers are Métis. This continuing practice is based on the traditional way of life of the Métis throughout the Métis homelands. Historically, the Métis were an integral part of the fur trade and were directly connected to the buffalo hunt. This way of life has been recognized by governments in legislation, orders in council and policies. [pg. 354]. 

Is it the right to hunt for food? It is difficult to imagine a more basic Aboriginal right than the right to avoid starvation by feeding oneself by the traditional methods of the community. [pg. 364]. 

With specific reference to the term "Métis" it was understood at the time that it (Métis) included the member organizations and their constituents who self-identified as a Métis person. The notion being that self-identity is a right that cannot be usurped by any means. It was also understood that the term Métis was not tied to any particular geographic area, keeping in mind that Aboriginal people from coast to coast identified with the term Métis as their way of relating to the world. [Appendix 5F - Harry W. Daniels letter].