All My Relations -The Other Metis-

Part 3 - Aboriginal, Treaty Rights, & Claims of Metis

Table of Contents

Introduction

This section of the paper will outline the basis for the Aboriginal, treaty rights and claims of Metis apart from those generated by the Manitoba Act and the Dominion Lands Act which apply primarily to prairie Metis. Those issues are dealt with exhaustively in other papers contracted by the Commission. In particular this section will emphasize the contemporary Metis relationship to Aboriginal title issues, the historical role and current relationship to treaty and treaty rights, and the position and participation of Metis in contemporary claims processes.

The historical background presented in the previous section also applies as a backdrop for the claims of Metis in every part of Canada. However, since those claims are not as well publicized as those of the prairies, some additional background will be provided in this section. At best this section can only hope to outline the major features and factors involved in Metis Aboriginal and Treaty rights and claims in eastern Canada, in Quebec and in parts of B.C. and Ontario.

Where it is helpful, the claims of Metis in the west and north will be referred to and reference made to other papers which explore those issues more thoroughly. As in the previous section, a number a basic assumptions will be made. It will be assumed that the recognition and confirmation of Aboriginal and Treaty Rights applies equitably to all of the Aboriginal people named in Section 35, which, if course include Metis.

It will be assumed that we are dealing with Aboriginal and Treaty rights and claims that apply or pertain to specific collectivities of Metis and which are related to their respective histories and relationships with particular Aboriginal and non-Aboriginal populations. It is not presumed that every person of Aboriginal ancestry in Canada who chooses to call him or herself Metis has an automatic claim on any given title, treaty, or land claim. By the same token, it should be evident that this paper does not deny an individual of Aboriginal ancestry from identifying him or herself as Metis simply because he or she has no other claim to make. Nevertheless, the challenge, in this section of the paper, is to present what amounts to a basis for Metis claims related to Aboriginal and Treaty rights.

It would be tempting, for simplicity's sake, to argue that racial prejudice and bigotry against Metis people --from both Aboriginal and non-Aboriginal people-- was the major cause of the dispossession of the Metis from their birthright. From the earliest development of mixed-blood societies to the present day, there is an underlying current of assumed cultural superiority on the part of Whites toward Metis --and only too often, an assumption of a "natural" and moral superiority on the part of Indian towards Metis. The simple fact of racial prejudice provides one simple answer for why things happened as they did, but does absolutely nothing toward increasing a mutual understanding of the events that give rise to the claims of Metis peoples.

Given that racial prejudice functions as a background or catalyst for many of the events in the preceding history, it becomes necessary to analyze and inter-relate the other factors which interacted to significantly effect Metis rights. It is critically necessary to understand how Metis claims were --and were not-- perceived historically, if present-day claims are to be understood.

Historical Background for Metis Claims

The events described in the previous pages constitute a bare outline of the major events contributing to the creation and development of several Metis populations in Canada The effect of those events --the deprivation of the birthright of the entire Metis population of the country-- has been demonstrated. The injustice, and even illegality from the perspective of modern human rights, of many of these events is demonstrable. To fully understand, from a Metis perspective, the significance of those events --and to analyze them in terms of Metis title, treaty rights and related claims-- several factors must be recognized. These factors involve an intricate, complex and often convoluted interweaving of cultural, political, and legal components. The result of these components is evident --the dispossession Metis-- but the process which produced that result is anything but obvious.

In the beginning, it was evident that Indian people possessed all of the land in North America and settlers, in the names of their respective Kings and Queens, were claiming parcels of it. Competing European claims created a need for "legal" title to the land and, clearly that was not possible without the consent of the Aboriginal people who obviously occupied it, and were more than capable of defending it.

While all this business was going on, there was an ever-increasing number of mixed-blood Indians, Halfbreeds, and mixed blood Whites, playing increasingly important roles in the interaction between indigenous and immigrant cultures. These people presumed themselves to be "native" or indigenous to North America, because that is exactly what they were. If there was any doubt or ambiguity, it only existed in the minds of "outsiders" or foreigners.

Maritime Background

In New Brunswick in the early 16th century, mixed bloods --Acadians aside for the moment-- were already prominent, both in the colonial struggles and in the process of treaty making."...the companions of the first governors, especially those of Latour and of Charles d'Aulnay in the first half of the 17th century left half-breeds who subsequently appeared under the 'Acadian' names of Doucet, Godet, Lejeune, Guidery, Petitpas, Charret, Sellier; ...The strain of Indian blood has remained very visible in certain families. History tells us that a group of families described as 'Normans and Halfbreeds' descended from Norman soldiers of the Restigouche garrison (on the north shore of Chaleur Bay)..."

As we have already seen, (Page 23) participation and inclusion of mixed-bloods in the treaties of the day were common. Often in positions of authority, these individuals acted as mediators in colonial conflicts to protect their rights as part of the indigenous population of the area. An Abenaki delegate at an Indian peace conference who was wearing a French uniform was detained by the English until he explained:

"I received no orders from the Governor of Canada to be present at the Indian Treaty of Arrowsic. I have always lived with my kindred and people - my mother was an Abenakis - I was in authority over them. I should not have been true to my trusts if I had neglected to be present at a meeting wherein their interests were concerned. My uniform is required by my position, which is that of a Lieutenant under the French King. I have the highest friendship for the English. My disposition is to prevent my people from doing them mischief; and my efforts shall be to influence them to keep peace."

The point of this example is not that an Abenaki Indian was dressed as a French Lieutenant, but that a mixed blood of the day could identify himself to be part of both cultures in interaction with a third culture, the English. Those options were to be eliminated, later, by the imposition of the Indian Act and the resulting denial of a valid mixed-blood identity. Expanding White settlement in both the Maritimes and the St., Lawrence River area soon developed a conflict of interest both with the European Crowns and with the Indians. The French became concerned at the alarming rate their young men were disappearing into the forest to find a new life and the English Crown realized that many of the settlers were making more deals for themselves than they were for the Crown.

Both processes sapped the military strength of the respective European forces and, as French and English conflicts escalated, both Crowns frantically legislated corrective measures The French colonists no longer received payments for marrying Indian women, and licensing systems for the fur trade made outlaws of any mixed bloods who were not directly controlled from Montreal. English colonists were ordered to stop paying Indians for lands that --from the Crown's point of view-- they had no right to buy. In exact proportion to the necessity for maintaining Native alliances, the British Crown ordered colonial governments to respect the lands and territories of loyal Aboriginal allies. But these domestic issues were forced into the background by the outbreak of war among the European powers.
 

The English Assert Sovereignty

When England finally checkmated the French and --again from the Crown's point of view-- established a monopoly on sovereignty, the role of Aboriginal people in general, and Halfbreeds, in particular, changed markedly. Indian and Halfbreed allies were now seen as a more or less loyal opposition in a game between the colonists and the Crown. From an Aboriginal perspective of this same period, very little had changed in terms of sovereignty and --apart from a few blisters of settlement along the east coast , the St. Lawrence River, and the lower Great Lakes-- nothing had changed in terms of possession of land.

The first recorded claims of Metis people were generated in the wake of the Proclamation of 1763. For a century, mixed bloods had been building their communities along the routes between Indian populations of expanding settlement. As a "new" indigenous population on the "frontier," they had already entrenched themselves as middlemen in an expanding fur trade. As military units fighting on their own, or in concert with various allies, they proved themselves more than capable of defending their territory and their new lifestyle against all comers. From their point of view there could be no question that they had by heredity and by entrepreneurial and military ability earned the right to the lands they occupied.

On the face of it, the Proclamation, although Pontiac had lost the battle, seemed a victory for Aboriginal people. But, the Royal intent of the Proclamation was to draw a very fine line between pacification of a very suspicious Native population and appeasement of equally suspicious settlers, while simultaneously establishing technical Crown title to the land. From the Crown's point of view, the Proclamation was a complete success; from the settler's point of view, a temporary hindrance to expansion; and from a Metis perspective, an empty promise. The Proclamation had created three "zones" or territories without taking into account the pattern of mixed-blood settlements outside the new province of Quebec which did not fit the pattern.

As the first formal description of Native/Settler/Crown relationship to the land, the Proclamation is recognized and entrenched in the Constitution Act 1982 as a seminal document in the history of sovereignty and land use in North America, for both sides of the issue. On the one hand, it clearly specified that Indians had possession of land that was not to be eroded by expanding settlement. On the other hand it provided the very mechanism --the formal treaty process-- by which Aboriginal peoples were to be deprived of that same land.

The document describes Indian lands, but does not define the term "Indian" --except as being allied to the Crown. This, in effect, created a class of Aboriginal people who had no legal relationship to their land, --as far as the Crown was concerned-- because they were not allied to the Crown. It also threatened the holdings of mixed blood peoples in the "Indian lands" area who could not be identified as Indians.

Unintentionally, perhaps, the Proclamation planted the seeds of the problems Metis and Non-Status Indians face today. By recognizing the rights of a specific group of Indians --those allied with the Crown-- to the exclusion of others, the Proclamation began digging a grave for the rights of those Aboriginal who were apparently not specifically included in the criteria.

Metis Claims Begin

Metis communities in the Sault area petitioned for recognition of their settlements following the Proclamation and were advised nothing could be done until the Crown negotiated surrenders of the land from the Indians. In effect, colonial authorities assumed the right to determine who did and did not posses land, and on what terms that possession could be recognized.

The subsequent colonial revolutions, by establishing two non-Aboriginal sovereign powers in North America, and subsequently undermining the growing Aboriginal Confederacies in the resulting wars, shifted the balance of concentrated military powers to the American and British colonial governments. With the death of Tecumseth in 1812 and the subsequent demise of his, and other, proposals for a Native state, the hopes for Native sovereignty in North America dwindled. The British Crown now held both the legal and political prerogative in the northern colonies.

During this period most of the Aboriginal population retained its cultural independence and a de facto possession of unsurrendered lands. In the wake of successful Native military alliance with the British Crown, the climate for claims was relatively good. Anxious to avoid Indian unrest over the fact that most of the lands reserved to Indians under the Proclamation of 1763 had been surrendered to the United States by the English Crown, colonial authorities were at least diplomatically responsive to Indian concerns. Land grants were arranged for American Loyalist Indians, and the Jay Treaty exempted the Indian population from the restrictions of the American border. An annual distribution of presents to loyal Aboriginal allies was established to cement good relations. At first, what we now call mixed-bloods, Halfbreeds and Metis all participated in the process as part of the Aboriginal population.

But as the anxieties of colonial wars faded, when the flow of settlers resumed, and the domestic conflicts between colonial authorities and the Crown escalated, the climate for Aboriginal claims cooled. The background history has demonstrated that the potential for successful claims declined in direct proportion to the necessity for having Aboriginal peoples as allies, and in proportion to their capability as military opposition. The negative climate for claims grew in direct proportion to the need, from a colonial point of view, for settlement lands and access to valuable resources in unsurrendered Indian lands.

A third factor in increasing the negative attitude toward claims, was the decline of Imperial interest in Indian affairs. Although Imperial authority was not formally transferred to the colonies until 1860, there was a steady shifting of responsibility for the management of Indian Affairs to colonial authorities from 1830 onwards. Increasingly, the Department of Indian Affairs was involved in the formulation and execution of colonial rather than Imperial claims policy. And, as Imperial control declined, so did Imperial funding for the Department, and so did the Department's interest in hearing potentially expensive Aboriginal claims.

The Department Turns

From its inception in 1755, the Department of Indian Affairs has been a major channel --and for much of history the only channel-- for Aboriginal claims. But, from a Native perspective, the Department has functioned in a "fox-in-the-chicken-coop" syndrome. Historically, the administration of Indian Affairs has been consistently assigned to that area of government most likely to benefit from the exploitation of Indians and Indian lands. A chronology of the evolution of the Department makes this fact self- evident:

1755 -Established as a central military authority in England

1860 -Transfer from Imperial authority to the civil authority of the Commissioner of Crown Lands in the Province of Canada.

1867 -Transfer to the Secretary of State (Macdonald) for the Dominion of Canada

1873 -Transfer to the Department of the Interior (Indian Lands Branch)

1936 -Transfer to Department of Mines and Resources

1949 -Transfer to Department of Citizenship and Immigration

1965 -Transfer to the Department of Northern Affairs and National Resources

1966 -Established as Department of Indian Affairs and Northern Development

This sequence demonstrates that the "chickens" were transferred to the care of the government "fox" most in need of control of Indians and Indian lands. When the sequence is aligned with the Indian Act amendments and other overt policies of promoting the extinction of the special status of Metis people, the potential for success of Metis claims throughout most of our history was, to put it mildly, bleak.

The fact that mixed bloods had been successfully relegated to a legislative no-man's land became obvious when mining magnate W.B. Robinson began negotiating the treaties of Lakes Huron and Superior in 1849. After forcing a split between the Mica Bay faction, who were holding out for local development of mining resources, Robinson refused to negotiate with the Halfbreeds. The Chiefs, in turn, pressed the Halfbreed claim and Robinson deftly countered by leaving the inclusion of Halfbreeds up to the Chiefs.

The truth, at last, was obvious. Halfbreeds in the Sault had been denied an earlier claim to their lands --the Proclamation of 1763 had declared the area as Indian land-- on the basis that the lands had to be formally surrendered before title could be transferred. Now that the formal surrender was accomplished, they were denied their claims on the basis that they were not Indians --a fact the Americans across the river had made allowances for in treaties signed across the border.

The signing of the treaties and the definition of Indians with rights to Indian lands, generated a rash of petitions from mixed bloods and whites alike, claiming other land in compensation for improvement to the lands they lost Negative and/or delayed response led to a heavy migration south and west to the far reaches of, as yet, unsurrendered lands. Even those who, by their own skill or by administrative inadvertence, managed to attach themselves to treaty would, within a generation, find themselves divorced from their homeland.

The Exception to the Rule

Alerted by the Manitoba Riel resistance to the very real danger of militant Native response to the westward expansion of the Dominion, the Department of Indian Affairs began negotiating the Northwest Angle Treaty, now know as Treaty Three. Agents had already been active to prevent the Halfbreeds of Rainy Lake from joining Riel. and to employ them in their traditional role as treaty negotiators.

After repeated failures, the Treaty was finally signed in 1873 with a series of adhesions of other bands over the next two years including, for the first and last time, a treaty signed specifically with self-identifying Halfbreeds. The story and significance of the Halfbreed Adhesion to Treaty Three has already been the subject of several other papers. As a basis for claim, the facts can be briefly outlined. A specific group of self-identifying Halfbreeds with their own elected Chief approached the Commissioners to enter treaty as a separate band. In 1875, a specific document entitled "The Halfbreed Adhesion to Treaty Three" was signed and arrangements made to survey reserves. Two reserves, clearly designated on maps as Halfbreed Reserves were, in fact, surveyed. The Halfbreed band occupied the reserves and petitioned for satisfaction of the remaining treaty terms. Indian affairs officials then refused to recognize them as Halfbreeds or a distinct band and, at first, all of the Halfbreeds refused to accept payment as Indians. Eventually, one group --whose descendants live at Couchiching today-- accepted designation as Indians and remained on reserve. Those who refused were expelled from the reserves, creating the basis for a claims that could be made today.

By the turn of the century, Indian Affairs policy, as our history has demonstrated, had successfully driven a legislative wedge between two segments of the Aboriginal population --so-called full-blooded Indians and so-called Halfbreeds. The effect of this wedge varied in different parts of the country. To the west and north of Ontario, Halfbreed Commissions were busy extinguishing the "Indian title" of Halfbreeds with scrip, as a parallel process to treaty-making with the Indians.

With the signing of Treaty 9 in 1905-06, the mop-up operations of the Williams Treaties in 1923, (both of which give rise to potential claims today), and the Adhesion to Treaty 9 in 1929, Indian title in Ontario had, from a government perspective, been successfully extinguished. From that same perspective, there was no possibility of future comprehensive claims, and specific claims were seen as administrative details that should be left to the Department of Indian Affairs --an attitude that still exists today. Halfbreed claims in Moose Factory, and Fort Frances, were simply ignored, and of the 1,598 claims to status under the Robinson Treaties, only three were recommended for acceptance.

From 1927 to 1951 it was illegal, under the Indian Act, for even Status Indians to raise money for Indian claims, and the Department actively persecuted Indian leaders who raised claims issues. As we have seen, Dominion legislation promoted the exclusion of Halfbreeds from recognition as Indians (adamantly refusing to consider their status as separate Indigenous people), and was literally creating the non-status Indian population of Canada.

Having been legally dominated by virtue of the Indian Act, and politically and economically repressed by virtue of exclusion of Aboriginal people from the political and resource development processes, Aboriginal culture itself became an inevitable target of government policy. The ad hoc programs of "civilizing" and "Christianizing" the Natives carried out in the previous century were hardened into legislation designed to disrupt tribal organization and literally outlaw Indian cultural activities. The combined effect of these cultural, political, and legal factors was to create, for all practical purposes, an "invisible" Aboriginal population for whom claims to justice were an empty dream.

The Current Climate for Metis Claims

The resurgence of Aboriginal claims in general, and Metis and non-status Indians in particular, in the last decade is due --not only to the emergence of more liberal and humanistic attitude on the part of governments-- but to an awakening within the Aboriginal population itself of a need to re- assert their identity in the context of the larger society. Metis and non- status Indians had, in that society, been rendered politically, culturally, and legally invisible for decades. To understand the re-appearance, in a public sense, of the "Invisible Natives" and their claims, it is critical to understand how they became invisible in the first place.

The process by which today's non-status Indians became legally invisible is, as we have seen, comparatively straightforward. By deliberate or inadvertent omission from treaty, and by exclusion from Indian status by virtue of the Indian Act and its maze of amendments, thousands of Aboriginal people were legally dispossessed of their Aboriginal birthright.

The immediate effect of legal invisibility varied enormously from time to time and place to place. The further back in time, and the more remote the place, the less the immediate effect was likely to be evident, in terms of the life-style of a given individual. Moving off a reserve, or receiving an allotment of land on a reserve, and giving up four or five dollars a year in treaty money hardly changed the way a man housed his family, hunted for food, practiced his culture or related to his friends.

But, as settlement expanded and regulations were increasingly enforced which happened at different times in different places-- the effects of legal invisibility as an Indian became more ominous. They were cut off from what little service and protection the government offered its "official" Indian wards by virtue of his or her loss of legal status as an Indian They were shunted aside by outside resource-exploiting interests, and they were politically voiceless. The non-status Indian was relegated to the backwashes of both the White and Indian communities.

With the passing of generations, the effect of legal invisibility outside predominantly Aboriginal communities, was to enforce assimilation into towns and cities, or resulted in confinement to poverty ghettos. Many who stayed near their original reserves were technically "outlaws" when they hunted or fished on lands their families had used for generations. Although, technically, loss of status entailed only the surrender of treaty rights and band association, the cultural side effect of that technicality, over generations, was to divorce the non-Status Indian from his cultural past, and change his sense of identity as an Aboriginal person.

Those changes varied with circumstances. In some cases, particularly where the individual was able to maintain contact with his or her community or origin, the individual's sense of "Indianess" was maintained. In other circumstances, particularly where an individual was physically and emotionally separated from his or her community, and became part of an off-reserve community, that individual, or the children of that individual would begin to identify as Metis, or to assimilate into the non-Aboriginal community.

Those non-status Indians who "successfully" assimilated or otherwise developed successful survival modes in relation to either Aboriginal or non-Aboriginal society, could be said to have made the best of a bad bargain in the first half of this century. It is not difficult to generate response to the plight of the non-status Indians of the poverty ghetto, but this response is usually channeled through welfare and economic development programs and circumvents the Aboriginal basis for claims of these people.

It is more difficult for non-Aboriginal people to grasp what economically successful Aboriginal people might have lost, and on what basis they could make any kind of claim. It was not until the Red Power movement of the 1960's that the cultural and political components of the non-status claims surfaced into public awareness, and well into the 70's before these claims were politically differentiated from those of Status Indians. What these people had lost, in many cases, was the recognition of the Aboriginal and indigenous quality of their heritage. The process of developing and re-asserting their identity as Aboriginal people, in a public sense, has only recently become a motivational factor in their lives.

The Invisible Metis

Canada's Metis population, on the other hand, has almost always been invisible. Although Federal laws and Provincial policies have occasionally, and reluctantly, admitted the "Indian title" Halfbreeds were said to possess by virtue of their "Indian blood," they have studiously avoided overt recognition of mixed blood peoples as having an independent status as Aboriginal and indigenous people.

As has been demonstrated, laws and official policies towards Metis/Halfbreed people effectively created a revolving door which only recognized the "Indian title" of some Halfbreeds long enough to extinguish it by treaty as "Indians," This technique successfully avoided legal recognition of Metis and then enabled them to subsequently strip them of Indian status because they were Halfbreeds. This process was further aggravated by the fact that many Metis and Halfbreeds were omitted from treaty because they were culturally, as well as legally, invisible to the dominant society.

The historical background has demonstrated that mixed blood peoples were the majority of the Non-Indian population for considerable periods of time in most frontier communities. Unquestionably an Aboriginal and indigenous people, in the sense that having no other country of origin, Metis evolved a variety of life-styles in a variety of contexts. This variety of adaptations to local conditions was both a great strength --in terms of individual survival-- and a serious flaw --in terms of potential for cohesive identification for political and legal purposes. By 1800, mixed bloods has permeated every level of social life and frontier institutions so successfully that the majority had become culturally invisible to many Indians and most Whites.

By 1850 it had become impossible to visually distinguish between Indians and mixed bloods, on the one hand, and mixed bloods and Whites on the other. As we have seen, those mixed bloods born into matriarchal tribal groups tended to be absorbed into the Indian band; those born into patriarchal groups tended to be excluded or set apart from the band in distinct clans those born in either group in remote areas lived as Indians; those of either group born near settlements were often raised as Whites.

From the point of view of the practical expediencies of law and administration, it became convenient for the dominant culture to adopt life-style criteria, rather than biological ones, to determine the Aboriginal status of an individual. None of these criteria can change the simple fact that an individual --however he might be identified "officially"-- is an Aboriginal and indigenous person. The fact that one individual could be designated by ten different terms in a single lifetime, does not alter the reality of his indigenous status.

The two-thirds of mixed bloods who could be identified as Indians or Whites, assimilated into their respective groups for most cultural and political purposes. The remaining third tended to function independently of either group and developed their own cultural, political, and legal institutions. As the most highly autonomous of the mixed-bloods, in sociological and political terms, it was this third group that proved the most problematical to colonial authorities.

When organized and co-operative --as they were in the Sault area under Langlade-- they were useful as allies. When organized and militant --as they were under Grant and Riel in Red River, and at Mica Bay-- their de facto control forced negotiated solutions. But individually, or in small peaceful communities, they were entirely vulnerable to the political and legal machinations of those eager to exploit the last frontiers.

It was among the Ootip Ayim Sowak --'those nobody owns' or 'the people that own themselves'-- that the more subtle cultural factors come into play. Expressing the Aboriginal cultural traits of adaptivity and co-operative passivity, they were easy prey for the domineering and aggressive colonists. Protesting chiefly by non-participation, they were more likely to move on when disruptive influences made life difficult. It was only when there was no place left to move that these people would make belated attempts to assert their rights. And --certainly by 1885-- the middle ground of identifications as Metis had apparently been eliminated, leaving only the alternatives of claiming identity as Indians or as White settlers.

In circumstances where Metis could not identify as Indian or White, the individual became legally, culturally, and politically invisible in his own homeland, and virtually an outlaw in the eyes of colonial and post- confederation governments. Joined by his non-status brothers --who were rendered invisible by enfranchisement or exclusion and omission from treaty-- the two groups shared a common problem, that of dispossession in their own homeland.

Unilaterally divorced from Federal responsibility under the BNA Act as Indian by definitional and enfranchisement clauses of the Indian Act, and subject to provincial laws and policies designed to exploit land and resources at the expense of Aboriginal people, Metis and non-status Indians who could not, or would not, assimilate into Indian or White cultures became a stateless people in the land of their own fathers.

The Resurrection of Claims

The historic success of government policy in suppressing Aboriginal rights and claims and the attempts of a variety of aboriginal associations to raise claims issues, has been well documented elsewhere. In the post World War II era, the liberalization of government attitudes towards Native people was reinforced by the evolution of the human rights movement and the decolonization of the Commonwealth. Abortive attempts at re-vamping Indian Affairs policy in the late 40's and 50's opened the door, for the first time in more than a century, to Aboriginal participation in that process. That participation exposed the enormous gap that existed between Aboriginal and government perceptions of the issues and claims involved, and their respective proposals for their resolution.

Although the context for Status Indian claims markedly improved through the 60's, it was not until 1970 that two events co-incided to foster reception of Metis and non-status Indian claims. The first of these events, as we have noted, was the emergence of Metis and non-status organizations as a distinct entity apart from Status organizations. The second was a nearly successful claim by the Nisga'a of British Columbia in the Calder case. This case jolted the government into an awareness that very real claims could be made by Aboriginal people and that research should be done, Aboriginal organizations to determine what those claims might be. The Federal government designed a claims policy which would, on the one hand appear to respond to Aboriginal demands and, on the other hand, to extinguish Aboriginal claims in the north and northwest to clear the way for resource development.

The Federal Native Claims Policy paper of 1973 commits the Federal government to "recognition of lawful obligations to Indian people." Those obligations are broken down into two categories of "Specific" and "Comprehensive" claims which the government, in principle, agreed to negotiate. The word "Indian" is replaced by the word "native" in relation to comprehensive claims which recognizes that non-Aboriginal occupation of lands traditionally used by Native people, had not taken Aboriginal "interest" into account. Such claims, however, have been confined to Northern Quebec, the Yukon, British Columbia, and the Northwest Territories. It was to be more than a decade before that policy would apply to Metis, and then only north of the 60th parallel.

This policy was re-issued in 1979 with no substantive changes in text. But, in the interim, the Federal cabinet asked the Cabinet Committee on Social Policy to consider "federal policy toward native people in general and towards non-status Indians and Metis in particular." A Steering Group of that committee reached the following conclusions in relation to Metis and non-status Indian peoples:

1. The special problems and needs of classes of Native people are similar (recognition, cultural security, socio-economic needs, participation, self-determination):

2. The Indian Act which defines the Indian people to whom the federal government addresses special programs is in some ways arbitrary, anachronistic and harsh in excluding certain classes of individuals.

3. The non-status Indians and Metis suffer severe disadvantages such that provincial activities alone are unlikely to significantly ameliorate their situation in the near future:

4. The non-status Indians and Metis may have legal claims against the federal government and some provinces and might be tested in the courts at any time.

5. Since meeting with the Cabinet in April 1975, Metis and non-status Indian leaders have had no government response and there is an urgent need for action, especially in relation to the funding of research and legal claims

6. A system of consultation with Native associations is desirable and could be usefully extended (to include in particular consultation on the political plane with the Native Council of Canada) and should be at the center of any Native policy development with the federal government

The recommendations of the Steering Group included: funding of mutually agreeable research into the claims of Metis and non-status Indian organizations; the recognition and affirmation of the cultural and historical contribution of aboriginal people to the evolution of Canada; the encouragement of Aboriginal efforts at self-determination; the retention of access to ancestral territory; and the recognition of Aboriginal concepts of community priorities.

The most significant of the objectives recommended by the Steering Group were:

1. To establish a set consultative frameworks... adequate to permit the just resolution of important questions affecting the lives of Native people, such as;

a) revision of the Indian Act

b) program design, orientation and management including resource allocation;

c) specific claims, whether by Status people or by other Native people, with respect to the treaties and the administration of the Indian Act, and other federal statutes.

2. To settle outstanding valid claims, based on Aboriginal title by negotiation.

From a Metis and non-status Indian perspective, the significant strategies recommended by the Steering Group included: assurance to Status Indian leaders that their position will not be diminished by non-status claims; that settlement of specific Status claims will allow for future non- status specific claims; explore Federal/Provincial mechanisms to assist Metis and non-status Indian people in need; and

3. Accept prima facie evidence that there exists a class of Native people outside the Indian Act that may have justifiable claims to "Aboriginal "Title" without ipso facto accepting that that class can be identified or that their claims can, in general, be validated.

5. Offer to discuss on the political plane at the national level the claims to Aboriginal Title of non-status Indian people.

6. Acknowledge that the term "Indian" under the BNA Act extends to the inheritors of Aboriginal title whether entitled to be registered under the Act, or not..

With the advantage of hindsight, it is can be demonstrated that the recommendations of the Steering Group were either ignored, or minimized during the following decade. Some consultative processes with Metis and non-status Indian Associations did take place, and research funding, as was noted earlier, was made available.

A subsequent paper on Native Rights Policy issued in May 1978, does not even use the words "Metis" or "non-status Indian" although the terms "Indian band" and "Indian Association" could be interpreted to, by the very optimistic, to cover these groups.

The paper did include the following commitment:

'Where a claim has a basis in law, the government is prepared to negotiate a just and equitable settlement."

Clearly, a door was being opened, but it was not at all clear who would be able to walk through that door. When the insistence that a claim have a basis in law is linked with the denial of Maritime comprehensive claims on the principle that they were superseded by law, the climate for the potential claims of Metis and Non-status Indian peoples was --and is-- still uncertain.

Having established a historical background, and sketched the various shifts in the climate for claims of Metis in the last few decades, we can now briefly examine the current potential claims of Metis in every part of Canada.

Current Potential Claims

There are at least two areas in which the climate for claims for Metis has markedly improved in recent years. The first is in the Northwest Territories, and the second is in Labrador. As has been said so often before, it is beyond the scope of this paper to deal with any of these events in detail and, at least in the case of the North, much has already been written. But it is important to draw what inspiration we can from these situations for the potential benefit of Metis elsewhere in Canada.

It was in the context of the proposed Dené/Metis claim that a major "breakthrough" occurred, in federal claims policy in relation to Metis participation. Although the claim itself was never signed, the very fact that federal negotiators were willing to negotiate jointly with Metis participants was as very hopeful sign. Those negotiations are still under way.

A claims agreement with the Sahtu region is now ready for legislative ratification. The Sahtu Tribal Council which negotiated the agreement is made up of four bands and three Metis locals. Participants reported to a recent Metis workshop in the NCC Annual General Meeting that Metis are on a completely equal footing with their Sahtu neighbors and that the agreement provides for completely equal and parallel institutions for Metis participants.

The other opportunity on the horizon, is in Labrador. Squeezed out of claims processes developed both for Inuit and for Innu in Labrador, the LMA has struggled for several years for recognition as a distinct Metis population. Although the claims put forward by the Labrador Metis Association (LMA) have yet to be accepted for negotiation, the Claims office has agreed to provide resources to begin development of a claims submission. Early results of the genealogical study indicate some 15,000 persons can be potential beneficiaries of such a claim.

The claim area runs from Cape Harrison in the North to the Quebec border in the south, and from the height of land in the west to the Labrador Sea in the east. The land claim overlaps those of the Inuit and the Innu and is based on literally centuries of land use and occupation by a mixed blood population who simply considered themselves to be the people of the country. The population adopted the term "Metis" as the most appropriate response to government questions designed to exclude them as "Aboriginal" from the indigenous population of Labrador. The Metis of Labrador are not yet recognized by the provincial government in Newfoundland.

Claims Related to Aboriginal Title

As an Aboriginal people in Section 35 of the constitution Act, 1982, the fundamental position of Metis related to Aboriginal title is deceptively simple. All of the Aboriginal titles and rights that have been recognized and affirmed in Section 35 (presuming a full box) pertain to Metis as an Aboriginal people.

If, as has been proposed by some, the Metis have no Treaty rights, then it follows that whatever Aboriginal title pertains to them must, because it has not been surrendered though treaty, still be intact. This position would most certainly apply to the Metis of any comprehensive claims area. In treaty areas where Metis were unilaterally and/or arbitrarily excluded from a treaty or claims process then the Aboriginal title of those Metis remains intact.

With slight modifications, the statement of claim made in 1979 by the Ontario Metis and Non-Status Indian Association could still stand today:

"The Metis peoples of Canada are an Aboriginal and indigenous peoples who, by heritage and inheritance, posses a unique Aboriginal status and Aboriginal relationship to this land. Although that status and related Aboriginal rights have always been part of Metis peoples' understanding of themselves, and although governments in Canada have sporadically, and often indirectly, recognized many of these rights in the past, government evasion, delay and neglect has resulted in the dispossession of the majority of the Metis population of Canada from access to benefit from those rights.

Having finally achieved constitutional recognition as an Aboriginal people in the constitution Act of 1982, and having achieved unanimous agreement of all governments in Canada to the principle of equity of access to those Aboriginal and Treaty rights which pertain to them, the Metis peoples of Canada, in all fairness, now have the expectation of parallel and distinct processes by which those rights can be justly implemented, including the processes of comprehensive claims, specific claims, and self-government implementation.

The Baker Lake Criteria

Any discussion of Aboriginal title must take into account the Baker Lake criteria for establishing a viable basis for Aboriginal title in Canada's legal system today. There is considerable argument as to whether or not Metis --almost by definition-- are excluded from Aboriginal title by fact that they have non-Aboriginal ancestry. We certainly cannot deal with all of those arguments in this paper, but they have been dealt with elsewhere. We must, however, at present of simplified version of a Metis perspective of those criteria.

In order to assert Aboriginal title before the courts, the Baker Lake case in 1980 proposed that a group must establish that:

1. They and their ancestors were members of an organized society.

2. The organized society occupied the specific territory over which they assert Aboriginal title.

3. The occupation was to the exclusion of other organized societies.

4. The occupation was an established fact at the time sovereignty was asserted by England.

Given the limited scope of this paper, we can only present a basic statement on each of these criteria, from a Metis perspective, for the purposes of discussion. As our history clearly demonstrates, many distinct Metis populations were highly organized, very often for generations before any white or non- Aboriginal population is established. The history also contradicts the erroneous idea that every Metis population began only after whites moved into any area and began producing children with the "native" population.

After 1700, most Metis communities, began as mixed blood communities with founders who moved into the area generations before permanent white settlement. The occupation of specific territories is easily demonstrable in the case of both pre-confederation and pre- Proclamation of 1763 Metis communities. For some Metis communities it can clearly be established that many fought and died in battles with and against Indians and Whites to maintain their territories against others. It must be admitted that many Metis societies lived in co-operation and alliance with both White and Indian societies and, to that extent may not be seen to have excluded others. It is equally hard to believe that, in all fairness and rules of broad interpretation, Metis claims could be denied on that basis alone.

Many Metis in eastern Canada, Quebec and northern Ontario could easily establish possession prior to 1763 (if the Proclamation of that date is the legal assertion of sovereignty over that area. Others may have to rely on arguments related to English sovereignty being in question until treaties were entered into by Indians, or even by Metis. In any case, Metis outside of the Red River area would appear to have a different historical foundation and legal basis for Aboriginal title than the limited title implied by the Manitoba Act and the Dominion Lands Act. The fact is that successive Canadian federal and provincial governments have denied the Metis of Canada a hearing of their claims by insisting that those claims were only available only to Indians or to Inuit.

The Metis themselves, as Aboriginal people under Section 35(2), whose existing rights are recognized and affirmed in Section 35(1), are now in a position to insist that have been, and are, unjustly and illegally prevented from access to and the exercise of, those rights. How courts will treat that argument remains to be seen.

Claims Related to Treaty

Until a few years ago, the idea that Metis have Treaty rights would have seemed a contradiction in terms. In the west, where Treaty association and registration under the Indian Act were perceived to be simultaneous, and where scrip was a least a nominal response to Metis claims in the area, it appeared to be a mutually exclusive situation. Either you were Treaty (i.e. status Indian) or you were Metis.

The historical background presented in this paper shows how mistaken that perception has been. In fact literally thousands of Halfbreeds and Metis were initially included in Treaty --even in the west. Many were later expelled via a shrinking definition in the Indian Act which was used to illegally deprive individuals of Treaty Rights. In every circumstance where a treaty uses the terminology "and their descendants," Metis associated with any given treaty who have been denied their treaty rights, have a potential claim.

In fact, there are at least two situations in which Metis have every expectation and right to make treaty claims. The first is in circumstances in which Metis title is intact (i.e. Labrador) and therefore treaty (or comprehensive claim settlement) is required. The second situation is a specific claim arising from circumstances in which Metis were first included in treaty and later expelled, or were excluded from Treaty at the outset and never dealt with at all.

We have also seen that at least one group took Treaty (the Halfbreed Adhesion to Treaty Three) as Metis. The fact that at least half of this group were later deprived of treaty annuities and forced off their reserve certainly provides a basis for specific claim today. The difficulty, of course, is that the current specific claims policy of the federal government is open only to Indian Act bands. There is no current policy -- except rejection-- to cover those who were illegally or unjustly deprived of their band membership because they refused to surrender their identity as Metis.

The history of Moose factory also demonstrates a treaty-related claim. The fact that several families were excluded from or refused Treaty in favour of an offer of scrip is clearly a basis for claim. There is another entire class of Metis treaty claims related to pre-confederation Treaties in Ontario, the Maritimes and in Quebec. In some cases Halfbreeds and Metis were pressured to use their influence with their Aboriginal relatives to get a Treaty signed, so that their own claims could be dealt with. More often than not, once the land involved was surrendered, officials simply ignored Metis claims unless they applied as white settlers. In other cases Metis and Halfbreeds were excluded from, or refused to participate as Indians in the Treaty-making process. Once considered by the federal government to be "superseded by law," these claims can, at least theoretically, be entertained as "claims of a different nature."

The situation in Burleigh Falls has given rise to claims of a self-identifying Metis group who may, technically speaking, have a case for claiming recognition as a band. Although many members of the community have re-instated under Bill C-31, they are still deprived of access to the specific claim process because they do not have band membership and because the Department has yet to recognize them as a band.

The community, although it is seeking recognition as a band, is not pursuing the establishment of a reserve. Their preference is a "settlement" model similar to that of the Alberta Metis Settlements. They are seeking this solution in compensation for exclusion from the original treaty in the area and for improper compensation for loss of lands.

A Supreme Court Case

Although the Manitoba Metis case now coming before the Supreme Court of Canada is obviously a matter of highest interest to the Red River Metis, it also has a marked significance for other Metis in Canada. That interest began when the Manitoba Metis Federation (MMF) and the NCC jointly launched the case after the 1981 rejection of the NCCs potential claim package. The NCC interest was spelled out in a memo to Board of Directors of the NCC in 1990.

"The NCC goal, supported by the MMF, is to have the 1870 Manitoba Act provisions regarding lands upheld as a "Metis Treaty" that provided collective rights, not just individual grants. This would have considerable value to Metis constituents throughout Canada, but especially in Ontario, the prairies and the NWT and B.C., and would also set the basis for seeing Metis as having not only "aboriginal" but also "treaty rights" under s. 35(2) of the 1982 Constitution Act."

The NCC lawyer on the case, Vic Savino, reported to the NCC that: "On the hearing of the appeal, we focused our oral argument on the rights of the Metis people pursuant to the Manitoba Act being "treaty rights" pursuant to Section 35 of the Constitution Act, 1982. When the Department of Justice was giving their oral argument, the judges of the Supreme Court, ...picked up on this treaty and aboriginal rights argument and subjected Canada's counsel to intensive questioning in that respect. I believe it was a significant factor in the Court's decision."

The NCC argument before the Supreme Court was as follows:

1. The Metis people are, by virtue of Section 35 of the Constitution Act, 1982, recognized as one of Canada's aboriginal peoples. As such, their "treaty and aboriginal rights" are "recognized and affirmed" and thereby entrenched in Canada's Constitution. This is not something that occurred magically in 1982. The recognition of the Metis as one of Canada's aboriginal peoples is firmly rooted in the Manitoba Act and the events that surrounded it both before and after 1870.

2. The Manitoba Act is the Metis Treaty

The Manitoba Act is the Treaty between the Metis people and Canada. The Metis Treaty comprised a bundle of rights including as main elements:

* The establishment of Canada's first new Province after Confederation (This new province was also Canada's first and only "Native" Province)

* The entrenchment of French and English language rights

* The protection of separate schools for the Catholic Metis and

* The establishment of a land base of some 2 million acres to be reserved to the Metis in extinguishment of their "Indian title." In addition to the "river lots" which the Metis already occupied "by the custom of the country", 1.4 million acres was to be assembled into nearby townships on the river fronts and distributed among Metis families for the benefit of future generations.

3. Mr. Justice O'Sullivan in his dissenting Judgment recognized the "Treaty" nature of the Manitoba Act.

"The Manitoba Act sanctioned by Imperial legislation, is not only a statute; it embodies a Treaty which was entered into between the delegates of the Red River Settlement and the Imperial authority"

(Tab 10, page 8 of Applicant's Application)

The point, for the purposes of this paper, is that the Supreme Court has already begun to grapple with the possibility that Metis people have treaty rights -- a position many NCC Metis constituents have been proposing for two decades.

It is interesting to note that the government of Canada initially challenged the case on basis that all of the "legitimate" claimants in the case were dead. Another aspect of the case, that of the Aboriginal title of Metis was also peripherally addressed:

"The legal basis of the land claim is a matter of great uncertainty. Unlike the Nishga (sic) Indian Tribe in Calder v. Attorney-General of British Columbia (1973), 34 D.L.R. (3rd) 145, the Metis people did not occupy a clearly defined area of land and only on one side of their families can they show descent from persons who inhabited the land from time immemorial."

Although that specious reaction was eventually reversed on appeal, it is clear that the myth that half-breeds are only half of something whole is still alive and well in Canada's courts. In fact, since most Metis today are the descendants of other Metis, most modern Metis are descendants of many sides of many families who "inhabited the land from time immemorial." In effect, Metis cold be said to be "doubly" entitled to claims as descendants of both Indians and white settlers.

The case is now being prepared for a hearing before the Supreme Court of Canada.

Treaty issues were, as we shall see, very much of a focal point during the First Ministers Conferences (FMCs) on Aboriginal matters between 1983 and 1992. The fact that the first amendment to the constitution involved the recognition of modern land claims agreement as treaties within the meaning of Section 35, gave new currency to the potential for treaty as a means of negotiating a new relationship between Aboriginal and non- Aboriginal people. We will come back to this possibility in the section of the future of Metis in Canada.

Claims Related to Section 35

The involvement of Metis in the constitutional reform process has been a roller coaster ride of high expectations and low end results. Few Metis who tearfully celebrated the agreement to include the term in the Constitution Act in 1981 would have believed so little would have changed in the following ten years.

Even a spate of successful lower court cases seems to have done little to alter federal "on-the-ground" claims policy toward the Metis south of 60. The complexity of the constitutional process itself, to say nothing of the equally complex sets of issues facing Metis people involved, cannot be dealt with here. There were, however, five identifiable elements in the process that have a particular impact on the position or status of Metis in Canada today and we will deal briefly with them.

The first is the jurisdictional question of which level of government in Canada is responsible to respond to Metis claims and aspirations in Canada. The second is the creation of a federal "interlocutor" for Metis and non-status Indians in 1985. The third is related to Aboriginal self- government. The fourth element is the Metis Nation Accord proposed by the Metis National Council. The fifth is the Charlottetown Accord and its potential impact on Metis in Canada.

The story of the split between the NCC and three of its prairie Metis organizations is best left to another time and place. For discussion purposes, it can fairly be said that, 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 Metis National Council (MNC) was formed to represent the interests of these prairie Metis 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.) There is no doubt that the withdrawal of three prairie organizations from the NCC in 1983 and the formation of the Metis National Council (MNC) has had an impact on Metis, and Metis claims in every part of Canada. The first evident impact was that it, effect doubled the representation of Metis people at the national level. The MNC focused on the representation of prairie Metis issues, while the NCC continued to press the issues of Metis peoples in the rest of Canada.

This division or doubling of national representation of Metis has, from the point of view of many Metis people, only made the need for flexible accommodation of Metis aspirations more apparent. Each organization has pursued the interests of its respective constituencies, and each has its own vision of how those interests should be accommodated. To date, there has be only area of consistent conflict or opposition between the two groups, --the definition of Metis-- and that will be dealt with in the context of the Charlottetown Accord.

Jurisdiction for Metis

The question of which level of government in Canada is obligated to respond to Metis claims and aspirations is one of the central issues of the relationship between Metis and the non-Aboriginal population of Canada. As we shall note in greater detail in the section on the future of Metis in Canada the "after-you-Alphonse" syndrome that federal and provincial governments get into when Metis issues are raised is one of the greatest obstacles to resolution of those issues. The issue of responsibility is so significant, in fact, that the Commission has contracted two other papers to deal with it. For that reason the issue will not be dealt with in this paper at all, except as it impacts on those issues which are the subject of this paper.

As we saw in the context of the historical background to Metis claims, the federal government has been studiously avoiding direct recognition of the legal status of both Metis and non-status Indians since the inception of the Indian Act in 1876. When the Native Council of Canada was formed in 1971 the national body and its affiliates were funded through the creation of an Aboriginal Representative Organizations Program (AROP) in the office of the Secretary of State. The funding was not channeled, as might have been expected, through the Department of Indian and Northern Affairs.

The Constitutional Reform Process

The issue of 91(24) federal responsibility for non-status Indians and Metis was a consistent theme of NCC presentations throughout the 1970's. It was not until Section 35 of the Constitution Act, 1982 came into effect that there was both a significant legal basis and a national forum in which those concerns could be expressed. Earlier attempts at forming a direct bilateral relationship between the NCC and the federal government at the cabinet level were short-lived and achieved very little more than establishing the basis for the research funding referred to earlier.

One of the major priorities of both the MNC and the NCC in the early constitutional rounds was to achieve some form of direct bilateral forum to address Metis and non-status issues. The MNC chose the route of creating separate schedules and agendas with the First Ministers Conferences (FMCs) themselves. The NCC pressed for 91(24) recognition of, and equity of access for, all Aboriginal peoples, including Metis, as a constitutional amendment.

As the constitutional negotiation process developed, the strategy of the federal government became increasingly clear. Their plan was to "embroil" the provinces into accepting jurisdictional responsibility of Metis and for unregistered Indians. At one point there was an abortive attempt to even include Inuit south of 60, in the category of a provincial (i.e. Quebec) responsibility.

The 1983 and 1984 conferences were inconclusive on the issue of federal and/or provincial responsibility for Metis and non-status Indians. Towards the close of the 1985 FMC, however, in a closed negotiation session with the NCC, the federal delegation agreed, in exchange for NCC support for a federal amendment proposal, to have the Prime Minister make the following statement:

"Both I and the federal government accept that the Metis and non-status people have unique problems regarding the protection of their rights. I, of course, confirm today as I have in other circumstances -- a commitment to attempt to recognize their special needs. I am going to be convening a meeting which I will personally chair with leaders of the Metis and non-status people, with Mr. Crombie and Mr. Crosbie, to examine ways in which we can work together to guarantee their rights and gain that equality which the Constitution Act envisaged. It is somewhat overdue."

Upon the assurance of the Prime Minister that his statement included consideration of a land base for Metis and non-status Indians, the NCC delegation agreed to support the Federal amendment. A later attempt to incorporate that commitment in a bilateral Memorandum of Understanding was made at the meeting promised by the Prime Minister held the following December. The MOU proposed that:

"The Native Council of Canada has demonstrated that their Indian and Metis constituents, being without equitable recognition in federal legislation and policies, face a denial of access to and benefit of the constitutional recognition and protection of their rights as aboriginal persons.

In recognition of this inequity, the Prime Minister committed himself on April 3, 1985 "to examine ways in which we can work together to guarantee their rights and obtain that equality which the Constitution Act envisaged."

The Government of Canada recognizes that all aboriginal peoples must be guaranteed equitable access to the aboriginal, treaty, and other rights and freedoms recognized and protected in the Constitution. Towards ensuring that this objective is given real and practical effect the Government of Canada and the Native Council of Canada agree to establish processes for the development of concrete proposals for accessing and implementing the rights of the Native Council of Canada constituents."

At the meeting, the Prime Minister set aside the memorandum proposal and simply announced that the Minister of Justice would serve as "interlocutor" and would "play a lead role on matters affecting your membership." Subsequent attempts to set up a formal bilateral process failed, as did the FMC in 1987. The only real gain made at the 1987 FMC was in inclusion of the principle of "equity of access" which the NCC had proposed. We will deal with this concept more fully when we discuss the impact of the Charlottetown Accord.

The role of the interlocutor was to provide Metis and non-status Indians with a focal point for contact within the federal government. Various Ministers of Justice were designated by the Prime Minister as interlocutor until the end of the Charlottetown process when the Minister of Constitutional Affairs, the Hon. Joe Clark, briefly took up the role. The current interlocutor is the Hon. Anne McLellan, Minister Designate of Natural Resources.

Metis Self-Government

The issue of Aboriginal self-government moved to the forefront of the constitutional reform process in 1984-5 as a means of dealing with what proved to be an unmanageable agenda in 1983. It was hoped that by bundling a number of the more difficult items (like sovereignty and jurisdiction) under the umbrella of Aboriginal self-government, it would be possible to achieve some form of constitutional amendment. This proved to be elusive during the 1984-87 process and was completely ignored in the proposed Meech Lake Amendment. At the time, it did serve the purpose, however, of focusing attention on two issues that were critically important to Metis aspirations.

The first was to address the lack of a Metis land base, and how that might be accommodated in a self-government context. The second was the need to develop a process for negotiating self-government agreements which could accommodate a great variety of local, regional, and even urban situations.

A federal attempt to address the self-government issue in a non-constitutional format generated what became known as the tripartite self-government negotiation process. In the hopes of developing models that might be examined in future FMCs, the federal government publicly announced a new opportunity for the Aboriginal people of Canada to negotiate self-government agreements.

In theory the offer seemed a viable opportunity for Metis people to begin the negotiation of a new relationship with government, other Aboriginal people, and the Canadian public. In practice the tripartite process has proven to be a cul de sac for any Aboriginal collectivity south of 60 and outside the Indian Act regime, and for Metis in particular. In an all too familiar pattern the federal bureaucracy, took the commitment of the Prime Minister and structured its implementation into a two-track process. The first process was initiated immediately by the Minister of Indian Affairs for on-reserve Indian participants. The second track, designed specifically of non-reserve Indian communities and Metis, had to be initiated by a provincial government, which also had to pay half of the costs of the process. Needless to say, there were relatively few provincial takers.

Those that did get underway, primarily the MNC western affiliates, found themselves bogged down in program delivery discussions which studiously avoided addressing the fundamental issue of the Metis right to self-government. The results speak for themselves. In the eight-year history of the self-government tripartite process, not one single agreement has been reached with Metis or non-reserve Aboriginal communities. If it has done nothing else, the tripartite process has clearly demonstrated that some other form of accommodation is required if self-government is to be achieved by Metis communities.

The issue has absorbed a great deal of printers ink and created a number of parallel fora to discuss its many related problems. The core issue for Metis revolved around a land base. The MNC, for the most part pursued the creation of a land base for Metis and the development of self-government for Metis as a matched set. The NCC, in order to accommodate its large urban constituency, also pursued the issue of urban self-government based on the idea that government could be built around a "community of interest" as well as it could be built around a geographic community. Urban self-government issues are comprehensively addressed in a 10-volume set of reports to the Commission. Self- government of Metis will be raised again in this paper, both in the context of the Charlottetown Accord, and in the section of the future of Metis.

The Charlottetown Accord

The following description of the Charlotettown Accord and it potential impact on the Aboriginal and treaty rights and claims of Metis in Canada is no more than an outline of highlights of the issues and concepts involved. Although the Accord itself failed in a referendum, it still has considerable viability as a basis for future interaction between governments and Metis.

In summary it can safely be said that every government in Canada and four national Aboriginal organizations have agreed that all Aboriginal peoples will:

1. have a constitutionally based framework in which to negotiate agreements 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).

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 Metis and unregistered or non-status Indians would 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 whatever gains that might be made in future negotiations.

In the 1992 process, 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 Metis people. Each organization pursued an amendment to Section 91(24) of the Constitution Act which would place Metis on a level playing field in relation to the federal government. Each organization also lobbied for mechanisms that would ensure that Metis people would be eligible for the negotiation of self-government agreements and the application of Aboriginal and Treaty rights.

To understand what Metis in Canada have gained in the Charlottetown process, we must understand how achievement of the goals of both NCC and the MNC affects the prospects of using the Accord as basis for future negotiations.

At the opening of the Charlottetown 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 had agreed to add a clarity clause which includes the words "all Aboriginal peoples" to Section 91(24). As in the 1983-87 process, the NCC pressed for, and got agreement to, an "Equity of Access" amendment to Section 35. This amendment would ensure that all Aboriginal peoples in Canada have access to the Aboriginal and Treaty rights contained in Section 35.

The subject of the renewal, renovation and negotiation of Treaties became a significant issue in the 1992 process. All governments accepted the NCC proposal for an equity amendment on Treaty rights for all Aboriginal peoples, including Metis who are Treaty beneficiaries regardless of their status under the Indian Act.

The NCC also repeated a proposal for an Equity of Access clause to ensure that off-reserve Aboriginal peoples --Status Indians off-reserve, non- status Indians, and Metis 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. The proposals were unanimously accepted.

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 Metis Nation. In addition to that Accord, which will be discussed in the next section, 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).

Whatever else might be said of the Charlottetown process, the interests and aspiration of the Metis people of Canada were well represented and, for the most part, warmly accommodated.

The Metis Nation Accord

As the Charlottetown process developed, the MNC leadership opted to propose a non-constitutional process to achieve their goals, in case the Charlotettown process failed. 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, including self-government negotiations, with the Metis signees of the accord who are referred to in the accord as the Metis Nation. One of the main features of the Metis Nation's accord is a proposed definition of Metis which links identification as Metis to federal legislation relating to scrip and to the Manitoba and the Dominion Lands Acts.

A third element provides that the Metis Nation (the Metis organizations who are signatories to the accord) could approve an individual as a being Metis. The NCC was concerned that the proposed Accord exclude most Metis outside the prairie provinces.

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

This clause would prevent the accord definition of Metis from excluding Metis 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 'Metis Nation' in the accord.

The MNC agreed the accord could include a non-derogation clause which referred to "any other Aboriginal people," but would not agree to the addition of the phrase, "including other Metis."

In should be made clear that the NCC, at the time the accord was presented, and the Confederacy today, does not oppose the Metis Nation Accord as an instrument for achieving the aspirations of the constituency of the MNC. What is adamantly opposed, is the very real possibility that the definition sections of the accord might be used by government and by some MNC affiliates to exclude other Metis people from asserting their own identity as Metis individuals, and achieving their own negotiated arrangements as Metis people.

The Confederacy Response

At the Annual General Meeting (AGM) of the NCC following the failure of the referendum, the Resolution #13 was passed without opposition, although the delegation of the Northwest Territories abstained en bloc:

Whereas the Native Council of Canada (NCC) exists to represent off-reserve Aboriginal people, including Metis people in Canada,

and

Whereas the Native Council of Canada negotiated the term "Metis" into the Constitution Act 1982 with the intention of accommodating all of its Metis constituents, and

Whereas the Metis National Council (MNC) has announced its intention to pursue an agreement with Federal and provincial governments which will create a definition of Metis which will exclude all Metis not within the political infrastructure of the organizations named in the Metis Accord,

Therefore be it resolved that affiliates of the NCC form a Confederacy of Metis peoples within the NCC to address this and other concerns of the Metis peoples of the NCC, and

Be it further resolved that this Confederacy of Metis Peoples be authorized by this Assembly to invite other Metis peoples and organizations to associate themselves with the Confederacy for the above stated purposes, and

Be it further resolved that this Confederacy be authorized to approach the Metis National Council with a view to developing a co-operative and mutually beneficial resolution to the issues raised in the Metis Nation Accord, and

Be it further resolved that if such negotiations should fail, the Confederacy of Metis Peoples be authorized to take such other legitimate action as may be necessary to insure equity of access to all Aboriginal and Treaty rights applicable to them and to initiate such action as may be necessary to defend themselves against abrogation and derogation of their rights by virtue of the implementation of the Metis Nation Accord or any part thereof."

Apart from a few conference calls, and the Metis Perspective Workshops at the NCC General Annual Assembly in Ottawa in February, the most significant activity of the Confederacy to date has been the interaction with the Commission to create the Metis Circle for which this paper is being developed. The Confederacy has renewed it mandate through a resolution of the most recent AGM of the NCC held in Ottawa at the end of February. Several other resolutions proposed by the Confederacy will be discussed in the next section. For detail on the concept of the

Confederacy see Appendix 3.