Having roughly established two of the three criteria for Metis identification, and before we establish the third, we can now look at therights and/or benefits to which those people are entitled.  LetÌs deal with Aboriginal rights first.

It is very clear that the Constitution Act of 1982 recognizes and affirms the Aboriginal and Treaty rights of the Aboriginal peoples of Canada in Section 35. [Link 12]

The first amendment to the Constitution in 1984 recognizes that modern land claims agreements are to be considered treaties within the meaning of that same Section 35. It is equally clear that Metis people are one of those Aboriginal peoples.  But what the Constitution does NOT say is what those Aboriginal and Treaty rights actually are or to whom, precisely, these rights apply.

It is sufficient, for the purpose of this essay, to say that Aboriginal rights are those rights that pertain to or derive from the use and occupancy of land by the Aboriginal peoples of Canada prior to the assertion of British sovereignty over any given area. <Note 9>.

 It is also at least minimally accurate to say that Treaty rights are those rights derived from the various Treaties signed between some Aboriginal peoples and some non-Aboriginal governments over the last 500 years. So it is at least logical (if not entirely realistic) to say that any Aboriginal person -- including Metis -- whose ancestors did NOT sign treaty must therefore have their original Aboriginal rights intact.

There is one other factor that must be established before we can go any further.  Aboriginal rights are, both by common sense definition and legal fiat, COMMUNAL rights.  They apply primarily to a group or a community or a nation and then, secondarily,  to the individuals in that group, community or nation.  Although individuals can be ELIGIBLE to derive benefits from Aboriginal rights, the rights themselves are held in right of the group, community or nation -- so to speak.  As an INDIVIDUAL, a person cannot claim an Aboriginal right except as a member of the community group or nation to which that right applies. 

Whether or not Metis have Treaty Rights is an explosive issue in the Aboriginal world today.  Some say that only -Indians- could legitimately sign Treaty so, by definition, Metis have no Treaty rights.  Reality, however, is not quite so tidy.  There is at least one Treaty -- the Halfbreed (Metis in the French version) Adhesion to Treaty Three.  Descendants of Metis people included in that Treaty clearly have a claim to Treaty Rights.  Hundreds, if not thousands, of Metis were initially included in a number of other treaties and then unilaterally excluded under later amendments to the Indian Act.  These Metis and their descendants clearly have a claim as well.  Finally, at least one judge has agreed that the Manitoba Act, from the point of view of the Metis it addressed,  was, in principle, a Treaty.  The descendants of those Manitoba Metis clearly have Treaty rights in that context.

In either case -- Aboriginal Rights or Treaty Right -- the original right applies to a group, community, or nation which occupied a specific territory at a specific time and signed a particular Treaty in a specific place and time.  In this situation it is that community (and/or its descendant community) which determines who is and who is not eligible to be a stakeholder in any given Aboriginal Right or subsequent Treaty Right. 

I emphasize that although a given community may ultimately have the authority to determine eligibility for stakeholder or benefit in a claim, that does not mean (as so many seem to assume) it therefore has the authority to determine or dictate whether or not an individual can IDENTIFY him/herself as a Metis in that Treaty or claim area.

Quite apart from Aboriginal and Treaty Rights, there is also the question of benefits derived from government and other programs designed to serve Metis peoples.  These programs and services are offered specifically to disadvantaged Metis or as part of a larger  Aboriginal ÏclienteleÓ designated generally as Aboriginal people.  There are two types of benefits available from government.  The first type are group benefits such as core funding for organizations, or claims research funds.  The second type are individual benefits such as assistance in employment training, or housing improvement.  Government policy requires that such programs be available to all Metis -- whether or not they belong to a Metis organization.  But there has been an alarming trend in recent years for local government agencies to require ÏproofÓ of Metis identity in the form of membership in a Metis organization.  As a result some Metis organizations are denying Metis recognition to some individuals in order to restrict the receipt of government program benefits to their own existing members, or to protect their successful voter base.

That brings us to the rationale for the third necessary element in the holy trinity of Metis identity -- acceptance or validation by a Metis community.  There were and are a finite number of Metis communities which have and do exist in Canada.  Those which existed before the imposition of British sovereignty have, according to the courts, Aboriginal title.  This is clearly the case today in parts of the Northwest Territories and Labrador, and any other area were the Aboriginal title has not been -surrendered-  <Note 10>  Those communities are entitled to determine, within the bounds of equity and fairness, who is part of their community and who may or may not be eligible stakeholders in a modern claim.  It is they who are entitled to set the -definition- of who is or is not an eligible Metis FOR PURPOSES OF THEIR PARTICULAR CLAIM.  That should not mean they are entitled to determine who can or cannot identify themselves, generally, as Metis -- apart from the claim.

Hunting and trapping rights provide a good example.  These are rights which apply to a particular population who have a demonstrable record of use and occupancy of the land in which the hunting and trapping did and perhaps still does take place.  That community has, or should have, the authority to determine which individuals and under what circumstances the right to hunt and trap on that land can be exercised.  It would be clearly unconscionable for 100 Metis from Labrador to descend on a Metis community in Northern Alberta and begin blazing away in the bush simply because the Labradorians were Metis in Labrador.  By the same token, it cannot be possibly be legitimate for the Alberta Metis community to forbid the Labrador Metis to identify themselves as Metis simply because the Labradorians did not have the right to trap or hunt on that particular range of land in Manitoba.