(Varying Metis Definition)
[# 61] I would, nevertheless, vary
the trial judge's definition of Métis having regard to several factors.
Firstly, the Report of the Royal Commission on Aboriginal
Peoples, supra, stresses that ancestral links may also be non-genetic,
and as deeply cherished as blood connections. Its recommended definition
does not impose any blood quantum requirements, but rather requires acceptance
by the relevant Métis nation on the basis of criteria and procedures
that the Métis nation itself determines.
[# 62] Blood quantum requirements for
Métis people should be rejected because they reveal little about
how an individual defines his or her own identity in relation to a Métis
community. Requiring proof of a genealogical tie to the original
Métis inhabitants of the relevant Métis community places,
in my view, too heavy a burden on Métis applicants and too easily
leads to the extinguishment of Métis rights through
attenuated blood lines.
[# 63] Requiring that a person's grandparent
be Métis runs a real risk of extinguishing the Métis rights
of
subsequent generations by both stealth and fiat. This
is something that must be avoided if s. 35 is to receive a
generous and purposive interpretation. See: Catherine
Bell, "Who are the Métis People in Section 35(2)", (1991), 29 Alta.
L. Rev. (No. 2) at 351; and Catherine Bell, "Métis Constitutional
Rights in Section 35(1)", (1997), 36 Alta. L. Rev. (No. 1) at 180.
[# 64] Secondly, the Royal Commission Report references the Draft International Declaration on the Rights of Indigenous Peoples, portions of which read as follows:
Article 3. Indigenous peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development;...
Article 8. Indigenous peoples have the collective and individual right to maintain and develop their distinct identities and characteristics, including the right to identify themselves as indigenous and to be recognized as such;...
Article 25. Indigenous peoples have the right to maintain and strengthen their distinctive spiritual and material relationship with the lands ... which they have traditionally owned or otherwise occupied or used ...[# 65] Underlying these Articles is a recognition of a right of self-determination and self-identification for aboriginal peoples who by definition in s. 35(2), include Métis people.
[# 66] As to the appellants argument that a fourth element - objectively determinable ties of a claimant to a local Métis community - must be added to the trial judge's test of who is a Métis, in my view, this fourth element must be rejected (as it was by the trial judge), for two reasons:
Firstly, it runs counter to the way the Supreme Court envisaged aboriginal rights to be interpreted and exercised. In Sparrow, supra, the court stipulated that s. 35(1) is to be interpreted in a purposive way and that a generous liberal interpretation, resolving doubt in favour of aboriginal peoples, is demanded given the purpose of the provision to affirm aboriginal rights. And as stated by Catherine Bell, in "Who are the Métis People in Section 35(2)", supra, at 380:
Given that the purposes for including s. 35(2) were to clarify the scope of potential claimants under s. 35(1) and to satisfy the claims of self-identifying Métis to recognition as an aboriginal people, the section should be interpreted to the benefit of aboriginal peoples in light of these objectives.Secondly, it places an unrealistic burden on applicants claiming Métis rights that are not placed on applicants claiming other aboriginal rights. Aboriginal rights are collective rights although each member of the collectivity has a personal right to exercise them. They are rights held by a collective and are in keeping with the culture and existence of that group. The aboriginal rights claimant must be a member of that aboriginal community, but each individual within that community does not have to meet an individual
cultural means test. Such a test would be arbitrary and inconsistent with a purposive analysis of an aboriginal right protected within the meaning of s. 35. See: Pasco v. C.N.R. Co. (1989), 56 D.L.R. (4th) 404 at 410 (B.C.C.A.); Twinn v. Canada, [1987] 2 F.C. 450 at 462 (F.C.T.D.); Sparrow, supra at 1106.
[# 67] In my view, any imposition of a cultural means test or a blood quantum rule, as a general prerequisite for membership in a Métis community, would be inconsistent with nthe fundamental purposes of s. 35.
[# 68] While Métis communities and collectivities doubtlessly consist of a population of persons of mixed aboriginal and non-aboriginal ancestry who self-identify as Métis, it would be wrong in my view, for the reasons stated herein, to require that in defining who a Métis person is, the individual be required to be of necessarily genetic "aboriginal ancestry".
[# 69] I find merit in portions of
the proposed definition of Métis identity put forward by one of
the two
intervenors on this appeal, Aboriginal Legal Services of Toronto,
which definition consists of a modification to the definition of Métis
identity set out in the Royal Commission Report. As the definition
provided by the Royal Commission was developed for the purposes of identifying
Métis people in the context of self-government arrangements and
negotiations, given that this appeal is concerned with site-specific aboriginal
rights, the definition of Métis must include or be referenced to
the concept of a local community, branch, council, chapter or organization
to satisfy the test for identity for the purposes of asserting s. 35(1)
rights. To insist, however, that Métis identity can
only be tied to an existing and flourishing local Métis community,
but without regard to any recognized Métis association having a
locally
organized community branch, council or chapter is to ignore
the historic reality of Métis peoples, as described at page 219
of the Royal Commission Report:
While prejudice has affected many aspects of their lives, the worst and least excusable form it has taken has been discriminatory governmental policies, especially on the part of the government of Canada ... Except in the northern territories, Métis people often have been deprived of post-secondary educational assistance and benefits ranging from health care to economic development and cultural support programs ...
[# 70] Surely an aboriginal people who reside in a community or locality in more or less proximity to one another, who share the same culture and interests, but who are not in any way formally recognized by government, can collectively organize and form a local association, branch or chapter for the purposes of crystallizing and shaping their community. Accordingly, where the Métis right being asserted is site-specific, I would vary the trial judge's identity of a Métis person, so as to provide as follows:
A Métis is a person who,
(a) has some ancestral family connection (not necessarily genetic),
(b) identifies himself or herself as Métis and
(c) is accepted by the Métis
community or a locally-organized community branch, chapter or council of
a Métis association or organization with which that person
wishes to be associated.