Assuming that some form of a constitutional deal, or parallel kind of arrangement actually becomes reality, Aboriginal peoples in Canada will take a significant step forward in taking their rightful place in Canada. 
 

1. have a constitutionally based framework in which to negotiate agreem-ents on Aboriginal self-government, 

2. be able to enter into a process of Treaty renovation if they so wish, and 

3. be included in Section 91(24).

Self-Government Agreements

It is clear that Indian and Inuit people who currently have a bilateral relationship with the federal government will be able to immediately move into the process of negotiating self-government agreements. It is not as clear, however, how quickly or effectively other Aboriginal peoples --Metis, Status Indians off-reserve, and Indians not registered under the Indian Act-- will be able to use that same process. 

Legally Métis and unregistered or Non-Status Indians will have a constitutionally guaranteed access to both the process of negotiating self-government agreements and to the process of Treaty renovation. The experience of Aboriginal organizations since the entrenchment of Aboriginal and Treaty rights in 1982 has made it very clear that existing governmental machinery is prepared only to deal with the status quo and is almost certain to resist the changes that will be necessary to implement the gains that will be made in the new constitutional deal. 

The first part of this article will deal with the specific differences between Métis peoples on the one hand, and Indian and Indian constituencies, on the other hand, up to the entrenchment of Section 35 in 1982. A brief outline of the impact (or lack of impact) of Section 35 on Métis will be presented with an emphasis on the stone wall of resistance various governments have built against the aspiration of Métis peoples in various part of Canada. 

Metis Before 1982

At various times and in different places, the Métis peoples of Canada have often found themselves in an uncertain position. By definition, Métis have both Aboriginal and non-Aboriginal ancestry. Historically Métis have often been rejected by either, or both, Indian and white communities. The response to this rejection was, in many cases, the founding of Metis-specific neighbourhoods, communities, and territories which, in turn, generated social and political systems which were often independent of both Indian and White reality. For the most part these communities and political systems were self-sufficient until they were interfered with by an expanding Euro-Canadian population. 

The difficulty many Métis people face today was generated when European social and political systems began to dominate the Canadian continent. Those systems were only too anxious to make a legal and formal distinction between Indian and White and to set up a regime that would monitor and, eventually, control the relationship between Indian and White peoples. Métis people, however, did not fit neatly into that regime. 

Without going into all the details of the consistent and sometimes violent struggle of Métis people to assert and maintain their social and political reality in the face of an increasingly overwhelming Euro-Canadian dominance, we can simply assert that Métis continue that struggle today. Euro-Canadian governments were just as consistent, until very recently, in oppressing or ignoring Métis peoples as they tried to achieve legal and political recognition of themselves as distinct peoples. 

Unwilling to recognize a distinct Métis entity, governments often forced individuals to choose between Indian and White identity in order to qualify for various government initiatives, from Treaty making to government programs and services. The resulting confusion was magnified by the government funding of Aboriginal organizations in the late '60's and early '70's. Governments readily funded separate Status Indian organizations, but refused to fund separate Métis organizations. This forced non-Status, non- Treaty and Métis people into the same organizations which resulted in mixed constituencies. 

Metis identity, and associated definitions, have always been very fluid. Métis cultures have developed a variety of historical and regional forms which makes it difficult to technically define them. Populations of Métis existed before and after the 1870-1885 Red River/Batoche period. These groups include the Métis of the Atlantic region, the communities of Hudson's Bay Halfbreeds spread throughout the country and the Métis populations of the territories and Quebec. In many communities and families, individuals had a "dual" identity. 

What all of these Métis populations have in common with each other is Aboriginal ancestry, an indigenous relationship to the lland, and a sense of community that was (often) distinct from both Indian and white populations. What this population had in common with many Indian communities prior to 1982, was a lack of "official" recognition of themselves as a distinct people with a basic human right to govern themselves in the context of their own cultures and traditions. From the point of view of this shared common problem, the alliance of Métis and unregistered Indian populations into the provincial and territorial organizations that form the Native Council of Canada (NCC) was virtually the only way to access resources to address that problem. 

There is no question that, as the constitutional pot began to come to a boil in 1978, the NCC was the only national organization lobbying on behalf of Métis interests. It was a president of the NCC at the time, Harry Daniels, who negotiated the recognition of Métis into the Canadian constitution. 

Between 1983-1992 

With the recognition of Métis as Aboriginal persons in Canada firmly entrenched in the constitution, the "common" problem of lack of official recognition seemed to be eliminated. The Métis affiliates with the highest historical profile in Canada, the prairie Métis organizations, decided to leave the NCC. 

At the time, the leaders of the Prairie organizations objected to the NCC's emphasis on what they described as the "Indian issues" of Aboriginal Title, revision of Section 91(24) of the Constitution, and Treaty rights issues. They also objected to applying the term "Metis" to mixed Indian/White people outside what they described as the "Metis Homeland" of the prairies. The Métis National Council (MNC) was formed to represent the interests of these prairie Métis organizations at the constitutional table between 1983 and 1987. (As other groups affiliated with the MNC, this homeland was expanded to include a section of northwestern Ontario, the Northwest Territories, and northeastern British Columbia.) 

Although the First Ministers' Conferences (FMCs) of 1983, 1984, 1985, and 1987 did not achieve any Metis-specific amendments, representations on Métis issues were presented both by the NCC and the MNC. The distinctions between the two positions were subtle. 

The NCC was pressing for constitutional entrenchment of equal treatment for all Aboriginal people, including all Metis, wherever they live in Canada. The MNC was pressing for a deal which would specifically accommodate the Métis of the prairies. Although no amendments were achieved, governments did agree to explore the possibility of trilateral (Federal/Provincial/Aboriginal) negotiations to develop self-government agreements. This process failed to achieve any negotiated agreements with Métis anywhere in the country, although several agreements were achieved with Indian bands in parallel processes. 

Although the previous commonality related to lack of recognition has been dissolved, it became increasingly obvious that Métis in both organizations and the Indian constituency of the NCC had another problem in common -- the lack of access to benefit from Aboriginal and Treaty rights, compared to other Aboriginal peoples. How each organization chose to address that issue, however, exposed several differences in approach as to how that problem should be solved. 

The NCC continued to insist on the revision of 91(24) to include all Aboriginal peoples and to an entrenched equity of access clause to ensure implementation of Section 35 Aboriginal and Treaty rights. Based on that position, the NCC, along with the Assembly of First Nations (AFN) and the Inuit Committee on National Issues (ICNI), opposed the Meech Lake Accord because it did not satisfactorily address Aboriginal issues. 

The MNC, on the other hand, vigorously pursued trilateral negotiations with the Federal government and the prairie provinces in the hope of developing a new deal for MNC constituents. Accordingly, they were the only Aboriginal organization to publicly support the Meech Lake accord in the hopes it would speed up the negotiation of their new deal. 

During that period the Manitoba Métis Federation (MMF) -an MNC affiliate- and the NCC have been jointly involved in a Supreme Court case on recognition of Métis rights. It was in the context of decision related to this case that the issue of Treaty rights for Métis became a significant factor. The MNC began to reconsider the validity of Treaty rights for Metis. 

Other unrelated court cases had addressed the issue of federal and provincial fiduciary responsibility to all Aboriginal peoples.

These cases encouraged the MNC to re-examine the value of Section 91(24) to prairie Metis. 

As the constitutional reform process began to resurrect itself in 1992, there was one major remaining difference between the MNC and the NCC on Métis issues -- that of the definition of Metis. 

Both organizations agree on the elements that should be used to determine identity as a Métis person. They are: 

1. Aboriginal ancestry 

2. Self-declaration as a Metis person

3. Ratification by the Metis community

One difference between the two organizations focuses on the third element. Both agree the community should play a role in the identification process. The difference lies in the definition of what that community is and at what point ratification becomes necessary. 

The NCC preferred to keep the ratification element flexible and related to community benefit. If an individual of Aboriginal ancestry identified himself or herself as Métis and then applied to for a benefit that was specific to a Métis community, then that community would have to ratify that Métis person as a legitimate beneficiary of that specific benefit. 

The MNC was more interested in making acceptance by their political affiliate organizations a major element in the recognition process. This raised fears in the communities who are not affiliated with MNC organizations (even within the prairie provinces) that a kind of non-status Métis would be created by this approach. 

Another difference lies in the definition of the term "Metis" 

itself. As was noted earlier, there is no question that the NCC negotiated the terms into the constitution and intended that term to cover all of its Métis constituency. 

The MNC, on the other hand, proposes to limit that definition in very specific ways. (See text of the proposed Métis Accord.) It is these two differences which are the focus of the proposals made by each organization in the Charolottetown multilateral process. 

Metis in 1992 Package 

There were three significant events in terms of representation of Métis prior to the '92 multilateral process getting underway. The first was the development of a Metis-specific organization in Labrador which was affiliated with the NCC. The second the decision of the Ontario Métis and Aboriginal Association (OMMA) to separate itself from the NCC. 

Although OMMA did not join the MNC, it did sign an accord by which OMMA agreed the MNC would represent the interests of their Métis constituents on constitutional issues. 

The Métis Nation of the Northwest Territories (MNNWT) also signed such an accord with the MNC, although the MNNWT maintains its affiliation with the NCC. 

The Board of Directors of NCC passed a unanimous motion in March proposing that the MNC and NCC develop a joint position on Métis issues at the constitutional table. The offer did not receive a response from the MNC 

Both organizations were lobbying for many parallel, if not similar goals. In particular, both wanted to ensure that, whatever amendments were agreed to, they must apply to Métis people. Each organization pursued an amendment to Section 91(24) of the Constitution Act which would place Métis on a level playing field in relation to the federal government. Each organization also lobbied for mechanisms that would ensure that Métis people would be eligible for the negotiation of self-government agreements and the application of Aboriginal and Treaty rights. 

Although the two organization had parallel goals, they each proposed different mechanism to achieve those goals. To understand what Métis in Canada have gained in the constitutional reform process, we must understand how achievement of the goals of both NCC and the MNC affects the development ofemerging deals. 

Position of NCC 

Amend 91(24) 

It could be said that the NCC was created to get an amendment to Section 91(24). Since its formation in 1971, the NCC has been lobbying to have its constituents recognized as Indians within the meaning of Section 91(24). Prior to the patriation of the Constitution, the NCC hoped to achieve this objective by getting either a Federal declaration or by getting a Supreme Court decision similar to the one in 1939 that recognized Inuit as "Indians" within the meaning of Section 91(24). 

Once the Constitution was repatriated, a third option, a direct amendment to 91(24) became a tactical possibility. 

At the opening of the Charolottetown process, it was the NCC that placed the 91(24) issue on the agenda. The NCC proposed wording that would add the words "Inuit and Metis" to the word "Indian" in the present section. Governments have agreed to add a clarity clause which includes all Aboriginal peoples to Section 91(24). 

Equity of Access to Section 35 

As in the 1983-87 process, the NCC pressed for, and got agreement to, an "Equity of Access" 
amendment to Section 35. This amendment will ensure that all Aboriginal peoples in Canada have access to the Aboriginal and Treaty rights contained in Section 35. 

Equity of Access to Treaty Renovation

The subject of the renewal, renovation and negotiation of Treaties became a significant issue in the '83-'87 process. At that time the NCC insisted on the participation of both the Indian and Métis Treaty constituents in any Treaty process. All governments in the current negotiations have accepted the NCC proposal for an equity amendment on Treaty rights for all Aboriginal peoples who are Treaty beneficiaries regardless of their status under the Indian Act. 

Equity of Access to Self-government Negotiations 

The NCC also proposed an Equity of Access clause to any self-government amendment in the '83-'87 process. This proposal was repeated and accepted in the Charlottetown round to ensure that off-reserve Aboriginal peoples --Status Indians off-reserve, non-status Indians, and Métis constituents-- have equitable access to the process that will be developed for the negotiation of self-government agreements. This included independent appeal processes if governments refuse to enter into negotiations. 

Non-Derogation to Metis Nation Accord

The MNC proposed a number of initiatives, most of which were in the context of a non-constitutional political accord with the MNC described as the Métis Nation. This proposed Accord included a definition of Métis which would not include most Métis outside the prairie provinces. 

The NCC then negotiated the inclusion of a non-derogation clause in the accord to ensure that the terms of the accord and the definition of Métis included in that accord would not deprive other Métis in Canada of their Aboriginal and Treaty rights --including the right to identify themselves as Métis. 

Position of MNC 

Amend Section 91(24) 

Unlike their position in the '83-'87 process, the MNC also actively lobbied in the current round for an amendment to Section 91(24). The amendment they proposed referred exclusively to the inclusion of the term "Metis" in Section 91(24). 

An agreement on an amendment that includes "all Aboriginal peoples" in Section 91(24) achieves this goal, if not the precise wording, of the MNC proposal.

Development of Métis Nation Accord

As the current multilateral process developed, the MNC leadership opted to propose a non-constitutional process to achieve their goals. They proposed that the MNC affiliates in Manitoba, Saskatchewan, Alberta, and Northeastern B.C. along with the signees of an earlier internal accord from Ontario and the Northwest Territories, sign a multilateral accord which would include the matching Provincial and Territorial governments. 

The text would commit the government signees to a range of interactions with the Métis signees of the accord who are referred to in the accord as the Métis Nation

One of the main features of the Métis Nation's accord is a proposed definition of Métis which links definition of Métis to federal legislation relating to scrip and to the Dominion Lands Act.

A third element provides that the Métis Nation (the Métis organizations who are signatories to the accord) could approve an individual as a Metis.  As ewas pointed out earlier, the NCC insisted on a non-degrogation clause.

This clause would prevent the accord definition of Métis from excluding Métis in other parts of Canada who are members of other Aboriginal organizations, or are not members of any organization, and, therefore, would not be included in the definition of Métis in the accord.