Aboriginal Law – Some Specific Subjects – Indigenous Identity in Canadian Law – "Métis"
By: Kerry Wilkins, B.A., M.A., LL.B., LL.M.
Part III.1.(b).(i) - III.1.(b).(ii) Indigenous Identity in Canadian Law — "Métis"
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III.3.(b).(i): Constitution Act, 1867
In concluding that Métis and non-status Indians qualify as "Indians" for purposes of federal legislative authority under the Constitution Act, 1867, the Supreme Court of Canada observed that "[t]here is no consensus on who is considered Métis or a non-status Indian, nor need there be." "Determining whether particular individuals or communities are non-status Indians or Métis," it continued, "is a fact-driven question to be decided on a case-by-case basis in the future . . . " The court did stipulate, however, that individuals could qualify as Métis or as non-status Indians, and therefore as "Indians" for purposes of federal legislative authority, despite not being accepted by any established Métis or non-status Indian community. "There is no principled reason," it said, "for presumptively and arbitrarily excluding them from Parliament's protective authority [over "Indians"] on the basis of a 'community acceptance' test.".
III.3.(b).(ii): Constitution Act, 1982
The Constitution Act, 1982 includes Métis, along with Indians and Inuit, among the "aboriginal peoples of Canada" for purposes of that Act. The Supreme Court of Canada has held that Métis are Indigenous peoples with whom the Crown has a fiduciary relationship and in respect of whom the Crown must act honourably.
The effect of including Métis among the "aboriginal peoples of Canada" for purposes of the Constitution Act, 1982 is to afford the Aboriginal rights, and any treaty rights, of Métis peoples the same constitutional protection as that afforded to the Aboriginal and treaty rights of any other Indigenous peoples of Canada.
Not all individuals with mixed Indian and European heritage qualify as Métis for purposes of the Constitution Act, 1982. As used there, the term "Métis" "refers to distinctive peoples who, in addition to their mixed ancestry, developed their own customs, way of life, and recognizable group identity separate from their Indian or Inuit and European forebears." The Supreme Court of Canada has defined a "Métis community" for this purposes as "a group of Métis with a distinct collective identity, living together in the same geographic area and sharing a common way of life.".
To qualify as a bearer of contemporary Métis Aboriginal rights, a contemporary Métis community must demonstrate that it has some degree of stability and some degree of continuity with a historical Métis community, as defined. For this purpose, it is not fatal to a Métis community's claim that the community "went underground" or lacked visibility for a period of time between the ancestral period and today, as long as the community's characteristic practices continued and there was no lapse in continuity.
To qualify as a member of a Métis community, and therefore as someone entitled to exercise Aboriginal rights belonging to that community, an individual must demonstrate:
• self-identification as a member of the Métis community, in circumstances that do not suggest mere opportunism;
• evidence of an ancestral connection — by birth, adoption, or other means — with the historical Métis community; and
• acceptance by the modern Métis community "whose continuity with the historic community provides the legal foundation for the right being claimed": for example, "past and ongoing participation in a shared culture, in the customs and traditions that constitute a Métis community's identity and distinguish it from other groups".
But acceptance by a modern Métis community is not necessary for a Métis individual to qualify as an "Indian" subject to federal legislative authority under the Constitution Act, 1867. This means that there probably are some Métis individuals who are not entitled to the benefit of any Métis Aboriginal rights.