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Metis aboriginal rights: catch 22?

In last month's column, we took a very brief look at Metis hunting rights and the Powley case at the Supreme Court of Canada. I'm going to set out some of the challenges to Canada's legal system arising out of Metis rights.

First off, the best known group of Metis in Canada are those mixed race aboriginal people centered around the Red River valley, but whose territory extended from the Rockies and eastern BC, all the way through the prairies and extending into northwest Ontario. But that's just one group. The reality of the situation is that very few European women immigrated to the New World in the centuries between 1500 and 1800, and that mixed marriage was the rule rather than the exception for over 300 years! The very first use of the term "Canadian" (actually Canadien) was used to refer to the mixed race French/Indian population that was growing up in New France. Acadians were of mixed blood and their refusal to swear allegiance to English or French monarchs lead to their dispersal in the Maritimes and Louisiana. Canadian, Cajun, Acadian Sort of has a ring to it, doesn't it?

Mixed race people naturally spread out into the continent and having a foot in both Indian and European cultures, they thrived, populated whatever territory we are talking about from Newfoundland to British Columbia and created distinctive cultures. And it was always about culture, not just race. Certainly today you'd be hard pressed to find any "pure blood" (whatever that can mean) Indian or "white" person anywhere on the continent. And that situation goes back hundreds of years. After the very first European married the very first Indian, Metis were marrying Metis, Metis were marrying Indians that were actually mixed race etc. etc.

In the words of Maureen Flynn-Burhoe (Inuit Art Quarterly, 2000) "The honesty of their accounts is remarkable. It is a kind of subjectivity which does not conceal, dissimulate or defend! itself."

So why do we care now? And what's it got to do with a law magazine?

We care because the way the Europeans dealt with aboriginal peoples made it important and put the Metis right in the middle of one of history's strangest Catch 22s.

One of the basic documents concerning aboriginal rights in North America was the Royal Proclamation of 1763. At that time, the Indian Nations were very strong and not at all happy with the haphazard expansion of Europeans into their territories. In order to keep the peace, the Proclamation put a moratorium on all settlement into Indian territory unless a Treaty and purchase of land had been made with the Indian Nation in possession of the lands. Sounds reasonable enough. However, by that time, mixed blood people were already expanding into Indian territory (without regard to the proclamations of a monarch across the ocean) trapping the furs, shooting the buffalo for the pemmican, paddling the canoes and just plain living. And they weren't Indians per se.

So when the time came to move Europeans into a territory, the Metis were told "The Royal Proclamation says we can't deal with you until we make a deal with the Indians" Fair enough so Far. But when the Treaty was made with the Indians, the Metis were told "We can't make a deal with you ... you're not Indians"

Huh?

Now to be fair, this expansion of settlement into Indian lands was a pretty new thing back then, and maybe nobody stopped to think that the half-breeds would actually start up their own culture and beat the official settlers to the land. But the effect was that when the west was settled, the Metis were pretty much cut out of the deal. And this is the case even though they had not only opened up the west and were occupying much of the western land when settlement happened, but they also pioneered this whole multi-racial society thing that Canada is so proud of today. It was to finally right this historical oversight that the Constitution now specifically defines aboriginal peoples as including Metis.

It's better late than never, but the modern problem that we have to deal with is how to give them their well deserved piece of the pie when it's pretty well all been divided up. And the answer so far is that it is pretty hit and miss.

Some Metis nations have kept their historical ties to the lands and may have preserved hunting rights on unoccupied Crown lands (like Indians but without the official reserve and other federal benefits). In some areas in Northern Canada, the Metis have retained ties with their Indian relatives and have received land claims settlements (for example the 1993 Sathu Dene and Metis Settlement near Great Bear Lake in the NWT). And in Alberta, the provincial government passed the 1990 Metis Settlement Act giving legal effect to the fact of the existence of Metis settlements and homelands in northern and eastern Alberta including the Buffalo Lake, East Prairie, Elizabeth, Fishing Lake, Gift Lake, Kikino, Paddle Prairie and Peavine Settlements.

But for many Canadian citizens who self identify themselves as Metis, the connection to a hunting right or a land base may be less obtainable than a recognition from the rest of us of the pioneering work done by their ancestors. Look up Metis Nation, Louis Riel, Red River Settlement or some of the other names mentioned here and think again of those people generations ago as the pioneers that they were. Not only pioneers in the sense of the land bur pioneers of the ideal of a multiracial society that may have (sadly) been just a bit ahead of its time.

Fred Fenwick is a lawyer with the firm of Drummond Phillips Sevalrud LLP in Calgary, Alberta.
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Title Annotation:Aboriginal law
Author:Fenwick, Fred R.
Publication:LawNow
Geographic Code:1CANA
Date:Apr 1, 2004
Words:962
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