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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to early historical references to the term on maps of areas outside Métis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].
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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].
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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].
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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].
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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].
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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].
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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].
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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].
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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].
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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].
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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].
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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].
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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].
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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].
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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].
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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].
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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].
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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].
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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].
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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].
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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].
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