[para48] Prior to 1830, the British treated the Metis similarly to other Aboriginal persons when they continued the French practice of providing them with annual presents to cement their alliance.
[para49] From 1824 to 1857, the American government identified and included the Metis of the Upper Great Lakes asn beneficiaries of land and/or annuities in at least fifteen different treaties in what is now Michigan, Wisconsin and Minnesota.
[para50] As a general rule, after 1830, government attempted to separate the Metis population from the Indian population. Financial considerations seemed to motivate this reassessment. The Report of the Royal Commission for Aboriginal Peoples observed that in 1846, the Bagot Commission recommended the following:
"Crown financial obligations were to be reduced by taking a census of all Indians living in Upper Canada. This would enable officials to prepare band lists. No Indian could be added to a band list without official approval, and only persons listed as band members would be entailed to treaty payments. It was recommended that the following classes of persons be ineligible to receivethese payments; all persons of mixed Indian and non-Indian blood who had not been adopted by the band; all Indian women who married non-Indian men and their children ..."
[para51] The Pennefather Commission of 1858 and the Borron Reports of the 1890Ìs continued the fiscal restraints and recognized that savings would be realized if the Metis were cut out off of the treaty lists.
[para52] Notwithstanding this general rule, the federal government in 1875 recognized Metis rights in Ontario in the Addendum to Treaty Three by the Half Breeds of Rainy River/Rainy River. The Treaty reads in part: ÏWhereas the Half-breeds above described, by virtue of their Indian blood, claim a certain interest or title in the lands or territories in the vicinity of Rainy Lake and Rainy River, for the commutation or surrender of which claim they ask compensation from the Government. And whereas, having fully and deliberately discussed and considered the matter, the said Half-breeds have elected to join the treaty made between the Indians and Her Majesty at the North West Angle of the Lake of the Woods, on the third of October, 1873 and have expressed a desire thereto, and to become subject to the terms and conditions thereof in all respects saving as hereafter set forth.Ó
[para53] The Indian Act of 1876 declared that Indians were to be determined according to their fatherÌs heritage. This impacted significantly on the Metis since for the most part they were descendants of Indian women.
[para54] The Metis have been consistently identified as a group that inhabited the areas immediately surrounding Sault Ste Marie. They were recognized by the Ojibway and it is clear that the Ojibway attempted to have them included in theannual gifts and in the Robinson Treaties. It is equally clear that although Robinson recognized the distinctive Metis group he restricted his dealings with the Indians. Robinson noted that: "As the half-breeds of Sault Ste Marie and other places may seek to be recognized by the Government in future payments, it may be well that I state here the answer that I gave to their demands on the present occasion. I told them that I came to treat with the chiefs who were present, that the money would be paid to them - that their receipt was sufficient for me - that when in their possession they might give as much or little to that class of claimants as they pleased." (My emphasis)
[para55] The text of the Robinson Huron Treaty contains the following passage: "When at Sault Ste Marie last May (1850) I took measures for ascertaining, as nearly as possible, the number of Indians inhabiting the North shores of the two lakes; and was fortunate enough to get a very correct census, particularly of Lake Superior. The number on that Lake including eighty-four half breeds is only twelve hundred and forty, and on Lake Huron about fourteen hundred and twenty two, including probably two hundred half breeds." (My emphasis)
[para56] It is clear from the totality of the historical documentation and evidence in connection thereto that the Metis people were a recognizable group that was closely associated with the local Indians. The Metis had created adistinctive lifestyle that was recognized by others.
[para57] The visibility of the Metis as a group may have waxed and waned over the years but they were a distinct group in the early development of Canada and have continued to exist throughout CanadaÌs development. The characterization of the Metis as a forgotten people is an apt one. The Constitution Act, 1982, once again, officially recognized the existence of the Metis as an aboriginal group with certain rights. (iii)Objective test for determining who the Metis are within the meaning of s. 35(2)
[para58] How does the court determine whether or not the Powleys are Metis for the purposes of s. 35(2) of the Constitution Act, 1982? The ÏWho is a MetisÓ question looms large. Unlike cases involving Indian rights, an identifying tribe or band is not available to those claiming Metis status. The generic term Metis forces Individuals to not only self identify but they must also piece together the existence of a definable Metis existence from location to location.
[para59] Indian tribes have been identified over time as to region
and governments have developed registration lists, to identify Indians
for purposes of benefits and claims. A similar procedure has not been put
in place for those of Metis descent.
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