(i) The use of the term Metis.
[para31] Section 35(2) of the Constitution Act, 1982 makes reference to a group of people referred to as Metis. Regrettably, the Act does not provide any definition of Metis to assist in determining exactly who might be included in this group.
[para32] The historians and contemporary Metis society tend to agree that throughout history, references to a distinct group of people known today as the Metis were referred to as half-breed, chicot, and bois-brule. However, a universally accepted definition of who is a Metis is not to be found.
[para33] In spite of the definition void or definition conflict that graces the land, counsel want this court to provide the definition of Metis so that it can be applied objectively in order to determine whether a particular individual is or is not a Metis.
[para34] The request for a definition of a Metis is not a simple task.
[para35] In Re Lovelace et al. and The Queen in the Right of Ontario et al. (Indexed as Ardoch Algonquin First Nation v. Ontario) (1997), 148 D.L.R. (4th) 126 (Ont. C.A.) at p. 153, para. 85 The Court stated that:
"On matters of identification and accountability, the Bands stand on a different footing from the applicant groups. Band members are easily identifiable because they are registered under Band lists. In contrast, no consensus exists on an appropriate definition of Metis or non-status Indians, making their identification extremely difficult. The motion judge dismissed this problem onthe ground that it was Ïnot as complex as alleged by the respondentsÓ and because he had already ordered the parties in Perry to negotiate a formula for identifying these groups. His order in Perry at least recognizes the existence of the problem, but ignores the undisputed evidence that a consensus definition has eluded not only many federal government, provincial government and Aboriginal group discussions, but also the applicants themselves, each of whom has different membership requirements for its organization or community."
[para36] Judge Swail of the Manitoba Provincial Court in R. v. Blais, [1997] 3 C.N.L.R. 109 (Man. Prov. Ct.) wrote on the issue of ÏWho are the Metis?Ó commencing at p. 114. However, since the Crown had conceded that the accused were Metis, Judge Swail concluded that he did not have to decide who was or was not a Metis. His observations regarding the definition of a Metis are nonetheless illustrative of the difficulties surrounding this issue.
ÏThe question of exactly who is a Metis within the meaning of this section of the Constitution Act is a difficult one. It is complicated by the fact that theterm Metis has been used in different ways at different times. Even today there is dispute as to the correct meaning of the term at any given period of history. It is further complicated by the fact that there are at least two distinct cultural backgrounds for the mixed blood people known as Metis. There are the descendantsof British (English and Scottish) Ïhalf-breedsÓ as they were originally known, who where the children of Hudson Bay Company employees; and there were the original French Metis who, for the greater part, were the children of North West Company employees, from Quebec.
Another complicating factor is the evolution in the use of [the] term "Metis", which saw the Government of Canada adopt a protocol by at least 1870 whereby all mixed blood descendants of European and Indian people were referred to in official documents in English as "half-breeds", and in official documents in French as "Metis". Beyond this, the question of who is or is not a Metis has been highly politicized by some fairly disparate organizations claiming to speak for the Metis of today. A further, final complicating factor has been the change by the Government of Canada of the criteria for status as an Indian under the Indian Act 1985. This apparently has resulted in a substantial number of people, who might otherwise have claimed status as a Metis, now taking status as Indians.
I recognize that Mr. Blais, in his evidence, said that this case was intended to settle the issue of who is a Metis. If I were to deal with this issue, I am inclined to think that the starting point would be in the definition of ÏMetisÓ set out in paragraph 1(a) of the ÏMetis Nation AccordÓ (filed herein as exhibit #9). It reads:
For the purposes of the Metis nation and this Accord:
(a) Metis means an aboriginal person who self-identifies as Metis who is distinct from Indian and Innuit and is a descendant of those Metis who received or were entitled to receive land grants and/or Script under the provisions of the Manitoba Act 1870 or the Dominion Lands Act as enacted from time to time.
Insofar as this ÏaccordÓ represents a political answer (by representatives of the Government of Canada, the Provinces, and a national Metis organization) to what is essentially a political question, it must be given serious consideration by the courts. The Metis Nation Accord fell with the failed Charlottetown Accord and is of course, not legally binding in any sense. Nevertheless, it may well be a valid guide to an appropriate definition of Metis.
In any event, it is clear in light of the Crowds perception that the accused in this case are indeed Metis, that the issue of who are, and who are not, Metis isnÌt one that need to be decided in this case. Accordingly, I decline to go further than to find that the accused, in this case, are Metis within the meaning of s. 35 of the Constitution Act.Ó
[para37] The Blais decision suggests that the definition debate has a significant political component linked to it. I would agree with this characterization. The Constitution Act 1982 is an expression of Canada's political essence. Accordingly, when s. 35 refers to a group identified as Metis, it would seem appropriate that the elected representatives of this nation dialogue with the key participants in the arena and arrive at a workable definition of who is a Metis.
[para38] Once a definition has been put in place, resources should be provided to deal with individual applicants who are interested in achieving official Metisstatus. The current practice of individuals financing independent ancestral searches is both cumbersome and expensive. A central registry system could facilitate the determination of official status.
[para39] A different vehicle to define who is a Metis was suggested in the Report of the Royal Commission on Aboriginal Peoples, Volume 4 (Exhibit #21). At p. 208, the Report reads as follows: ÏThe legal definition of Metis cannot be resolved without a Supreme Court of Canada ruling.
[para40] I am of the view that a court is not the ideal forum to deal with political matters. The definition question would best be addressed through negotiation and consensus building rather than an adversarial process.
[para41] The Commission also recommended a definition as to Metis identity at p. 203 of the Report. ÏEvery person who (a) identifies himself or herself as Metis and (b) is accepted as such by the nation of Metis people with which that person wishes to be associated, on the basis of criteria and procedures determined by that nation be recognized as a member of that nation for the purposes of nation - to - nation negotiations and as Metis for that purpose.Ó
[para42] The Metis Nation of Ontario 1997 By-Laws defines a Metis as: ÏAnyone of Aboriginal ancestry who self-identifies as Metis; is distinct from Indian or Inuit; has at least one grandparent who is Aboriginal; and who is accepted by the Metis Nation of Ontario.Ó
[para43] An overview of the evidence adduced at trial and an examination of the case law demonstrate that there are several factors that impact on the identification issue. Historically, there were distinct circumstances across Canada that resulted in different communities developing from the mixing of European and Indian groups. Government intervention such as the Indian Act have defined some individuals as Indians who might normally be classified as Metis. The political differences between groups representing the Metis landscape and claiming to represent the Ïreal MetisÓ have created a divided approach to a complicated identity issue.
[para44] As long as the divisiveness remains a reality in the Metis equation, the question as to who is a Metis will remain unanswered. Without an identifiable group, government can continue to pose the question who is a Metis.
[para45] Dr. Ray also noted that ÏMetis people tend to be invisible or unidentifiable in official records in other primary sources upon which historians rely to construct the history of Aboriginal groups in Canada. As such, it is very difficult to provide a continuous, well documented and authoritative history of their communities.Ó As time marches on, the task of tracing Aboriginal ancestry will only become more difficult.
[para46] Questions regarding blood ratios might be another area that has to be addressed within the context of definition. In the case at bar, Mr. Steve Powley has 1/64 Aboriginal blood and his son, Roddy has 1/128. Should there be a minimum percentage to qualify a person to claim Metis status?
[para47] Without a universally accepted definition of Metis to be
found, I shall attempt to distil a basic, workable definition of who is
a Metic. Accordingly, I find that a Metis is a person of Aboriginal ancestry;
who self identifies a Metis; and who is accepted by the Metis community
as a Metis.
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