Canada has always been a country of mash-ups. Sometimes out of necessity, sometimes by choice, our history has been marked by the coming together of different groups, tribes, nations and races to produce something new.
During the age of exploration, North America experienced a rough collision of European and Aboriginal forces. Following the end of the Seven Years’ War, when the country of Canada first began to take legal shape, there arose a formal amalgam of English and French interests. To this unlikely combination was later added United Empire Loyalists fleeing the American Revolution. Then came many more immigrants from Europe and elsewhere, constantly changing the shape and look of Canada. In our modern era, rising rates of mixed marriages and other signs of social mixing between cultures, clans and ethnicities have further reinforced this welcome agglomeration effect, while Canada’s Indigenous population has increased markedly. “We are a métis civilization” declares the opening line of Canadian philosopher John Ralston Saul’s 2008 book A Fair Country.
Despite this rich mélange of our backstory, however, in recent decades Canadian legislators and courts have fallen over themselves trying to divide us into separate categories based on racial ancestry – Aboriginal or otherwise – rather that admit the reality and benefit of the integrationist forces at work. The clearest fault line in this faulty process turns on the definition of that quintessentially Canadian concept: being Métis.
Section 35 of the Constitution Act, 1982 recognized and affirmed “the Aboriginal and treaty rights of the Aboriginal peoples of Canada.” It is a concept that explicitly includes “Métis peoples.” At the time, however, the Constitution’s framers offered no clear idea of what they meant by the term.
The word “Métis” refers to the offspring and descendants of a union between an Aboriginal and a non-Aboriginal person in the context of Canada (or its geography before Confederation). As such, it encompasses a broad spectrum of possibilities and time-frames. The most familiar example of this process of racial mixing are the Métis of Rupert’s Land – the vast Hudson’s Bay Company concession that later became much of western and northern Canada. These most famously included the Red River settlements of Manitoba prior to Confederation and throughout the Riel Rebellions of 1870 and 1885.
Imagery associated with this time and place include cultural artifacts such as York boats, pemmican, blue capotes, a pipe and pipe bag hung from a red waist sash, dyed European trade cloth worked with silk and beadwork, the Red River jig and Red River cart. All this reveals a combination of European and Aboriginal traditions and elements. Some proponents, including former federal Crown-Indigenous Relations minister Carolyn Bennett, refer to this particular iteration of the Métis as “Capital ‘M’ Métis.”
The Constitution, however, refers to “the Indian, Inuit and Métis peoples of Canada,” seemingly in the plural. Although the Constitution’s choice of grammar could be read more than one way, it seems to support the view that there is no particular exclusivity to the descendants of the Red River settlements, the Riel Rebellions or the Fur Trade Era in Rupert’s Land, regardless of capitalization preference. It certainly raises the possibility that Métis may exist elsewhere in Canada and trace their origin to other historical eras and geographic areas. Again, the definition of Métis is best seen as simply the offspring of a mixed-race, native and non-native (usually white) couple.
The 1996 Royal Commission on Aboriginal Peoples added its perspective on the meaning of Métis:
“Intermarriage between First Nations and Inuit women and European fur traders and fishermen produced children, but the birth of new Aboriginal cultures took longer…Gradually, however, distinct Métis cultures emerged, combining European and First Nations or Inuit heritages in unique ways. Economics played a major role in this process. The special qualities and skills of the Métis population made them indispensable members of Aboriginal/non-Aboriginal economic partnerships, and that association contributed to the shaping of their cultures.”
Note again the lack of any geographic specificity entailed in “intermarriage between First Nations and Inuit women and European fur traders.” The Royal Commission makes explicit mention of Métis communities in Labrador and the Maritimes, all of which were outside Rupert’s Land. The central role of economics – trade, resource use and individual enterprise – is also significant.
According to the 1996 Royal Commission on Aboriginal Peoples, Métis refers to the “intermarriage between First Nations and Inuit women and European fur traders” without any geographic restrictions; pictured, mixed-race families in (left) Ontario and (right) Saskatchewan. (Sources of photos: (left) Robert Bell, courtesy of Library and Archives Canada, e011156727_s1; (right) Provincial Archives of Alberta, OMI Collection)
The Supreme Court of Canada offered the first key legal take on what it means to be Métis in the 2003 case of R. v. Powley. Here it upheld the acquittal of Sault Ste. Marie, Ontario area residents Steve and Roddy Powley for shooting a bull moose without a hunting licence on the grounds that they were exercising their Aboriginal right to hunt for food, and that the exercise of that right in the circumstances took priority over Ontario’s hunting regulations. The Supreme Court upheld the trial judge’s factual finding that the Powleys were part of a Métis “community” in and around Sault Ste. Marie.
Specifically, the judgement declared that, “Métis cultures by definition post-date European contact…The constitutionally significant feature of the Métis is their special status as peoples that emerged between first contact and the effective imposition of European control.” As to who can claim membership in a Métis community, the Court wrote, “Courts will have to ascertain Métis identity on a case‑by‑case basis taking into account the value of community self‑definition, the need for the process of identification to be objectively verifiable and the purpose of the constitutional guarantee.” (Emphasis added.)
According to the Court, a person may thus be a Métis if he or she self-identifies as one, or has an ancestral connection to an historic Métis “community” and is currently accepted as a member of that community. These criteria are unquestionably vague. But read at face value, Powley argues against the suggestion there is anything specifically “Aboriginal” about being a Métis. Past and present Métis culture, by definition, was founded in and is defined by the post-contact, Euro-Canadian mercantile culture.
Then in 2016 the Supreme Court ruled on Daniels v. Canada (Indian Affairs and Northern Development). Based on seemingly thin legal and historical arguments, the Court declared that Canada’s 400,000 Métis and 200,000 non-status Indians were to be considered “Indians” under federal jurisdiction, at least for the purposes of being eligible to claim benefits from the Canadian taxpayer.
The Court again failed or declined to concretely define who exactly is a Métis person. “There is no consensus on who is considered a Métis or a non-status Indian, nor need there be,” the ruling reads. Rather, this is a “fact-driven question to be decided on a case-by-case basis in the future.” Given the implications of turning all Métis into the equivalent of status Indians, with all the rights associated with tapping into Canadian taxpayers, this open-ended description hardly settled anything.
Prompted by Daniels, in June 2019 the Justin Trudeau government announced that it had signed “self-government agreements with three provincial branches of the “Métis Nation” in Ontario, Alberta and Saskatchewan. (Manitoba signed a similar agreement in 2021.) According to the National Post, these agreements were to be “an upfront recognition of the Métis right to self-government, with further agreements on specific areas of jurisdiction to follow,” such as “childcare, language and the administration of justice.” Then federal minister Bennett announced at the time, “For generations, Métis weren’t recognized at all by the federal government…Métis were the forgotten people.” Forgotten no longer. Since the Daniels ruling, Métis organizations have received an estimated $3.4 billion in federal funding.
But how is anyone to decide who gets to participate in this taxpayer-funded windfall? Recall that Daniels proposed the entirely impractical concept of 400,000 individual “case by case” examinations of Métis status. By failing to properly define and explain the elements of Métis status, the Supreme Court repeated and compounded the failures of the section 35 framers to produce a legally valid notion of a Métis person. Now it appears this will be up to the Métis themselves to hash out in court, as indicated by a high-stakes lawsuit that is already tearing the Métis Nation apart.
Since 1983 the Métis have been represented nationally by the Ottawa-based Métis National Council (MNC). It was created through the cooperation of three founding provincial bodies: the Manitoba Métis Federation, Métis Nation-Saskatchewan and Métis Nation of Alberta. Later, organizations from Ontario and British Columbia were added.
Forgotten no longer: In the wake of the Daniels ruling, Métis organizations have received an estimated $3.4 billion in federal funding; pictured, former Crown-Indigenous Relations minister Carolyn Bennett. (Source of photo: Arctic Circle, licensed under CC BY 2.0)
In 2002, reflecting this sense of noblesse oblige, Manitoba representatives pushed the MNC to adopt a “National Definition” of Métis status as being “a person who self-identifies as Métis, is distinct from other Aboriginal peoples, is of historic Métis Nation Ancestry and who is accepted by the Métis Nation.” (The twin requirements of self-identification and rigorously documented ancestry, plus the MNC’s apparent option still to reject any applicant who seemingly qualified in other respects, make for a curious combination.)
This National Definition promoted Manitoba’s interests by focusing attention on those with a direct connection to the original Red River settlements (although it also applied to Métis elsewhere in the former Rupert’s Land and where the fur trade had been conducted). This position naturally rankled other provincial bodies, notably the Métis Nation of Ontario (MNO), whose members may claim Métis identity but most of whom lack the necessary Red River/Rupert’s Land connections to meet the National Definition. The MNO prefers what it calls a “pan-Indigenous” definition of Métis status based on “self-identification and a connection to the territories outside Manitoba.”
This long-simmering internal feud took on much greater import following the Daniels decision ruling that the Métis are Indians for constitutional purposes, thus opening the door to billions in federal funding through self-government agreements with Ottawa. The reason for the disagreement is one of the few things the competing Métis organizations can agree on. According to MNC legal documents, “Since at least 2017 there has arisen among the governing members of MNC a dispute concerning the identification and recognition of citizens of the Métis Nation.” A legal filing by the MMF similarly observes, “This disagreement quickly devolved into a bitter battle over fundamental questions about what it means to be Métis.”
The issue has been most pronounced in Ontario, where the MNO is particularly aggressive in signing up members from what it calls “new historic Métis communities”; that is, communities without a direct connection to Rupert’s Land and the fur trade. According to census data, Métis are the fastest-growing segment of Canada’s aboriginal population, with most of this growth coming in Eastern Canada. All this threatened the pre-eminent position of the Manitoba Métis Federation within the Métis world.
After failing to block Ontario from welcoming arriviste “new” Métis by legal means, last year the MMF abruptly split from the national body on the eve of its 2021 national assembly. The trigger for this move was the election of Ontario Métis representative Cassidy Caron as MNC president. It is here that the dispute gets messy.
According to the MNC, the departure of the Manitoba Métis prior to the annual meeting was part of a meticulously planned “scorched earth policy” meant to leave the MNC severely damaged as soon as Caron took office. Earlier this year, the national body launched a multi-million-dollar lawsuit against the MMF, claiming its departure was fraught with corporate malfeasance, including the alleged misappropriation of millions of dollars in program funding arrangements signed with the federal government, as well as other allegations of conflicts of interest and non-arm’s-length dealings. (It is important to note that none of the allegations of either side have been tested or proven in court.)
The most prominent of these allegedly stolen programs is the $30 million Métis Veterans Legacy Program between the MNC and Ottawa in 2019. It included a $9 million fund to provide compensation of up to $20,000 for each living Métis veteran of the Second World War (and smaller amounts for surviving families); it also allows the service provider to charge a 15 percent administrative fee, making it a lucrative venture for whoever is running the program. The MNC claims control of this compensation fund was improperly transferred to the MMF prior to the split.
The MNC also claims the MMF arranged “excessive, inappropriate or unnecessary” severance and retirement packages – in some cases up to two years’ pay – for personnel working for the national office, some of whom were then promised jobs with the Manitoba organization. The MNC further claims the MMF seized control of an historic and irreplaceable Métis computer database that was supposed to reside with the national organization. All told, the MNC is claiming losses and damages of more than $25 million.
In its statement of defence and counterclaim, the MMF denies all allegations, claiming the lawsuit is simply “the latest salvo from the MNC against the MMF and David Chartrand in a broader political dispute over the representation of the Métis people” and “what it means to be Métis.” The MMF boasts that it “was a primary driver of the MNC’s growth and success in procuring billions of dollars in funding from the federal government and other sources for the benefit of the Métis Nation.” Whatever success the national organization has enjoyed, the defence document implies, is thus to be considered the sole result of Manitoba’s efforts. With regard to the veterans’ compensation program, it claims the MNC is incapable of delivering the services required. The MMF thus argues it is entitled to run all the programs it took with it.
Just in case this “take-my-ball-and-leave” legal gambit isn’t sufficiently convincing for the courts, however, the MMF makes a further Hail Mary-style argument to insulate itself from all claims of administrative malfeasance. “The MNC has always operated in accordance with Métis Nation traditions, practices and procedures, which are well known and accepted by the Métis Nation,” the MMF statement of defence asserts. “The MNC is an Indigenous representation body and properly viewed through the lens of recognition, reconciliation, and affirmation…Strict compliance with corporate law requirements, and a failure to recognize and affirm the MNC’s long-standing traditions, practices and governance structures, frustrate and run counter to section 35.”
In essence, the MMF is arguing that as an Indigenous organization, it should not be held to the same legal, fiduciary and ethical standards that apply to non-Aboriginal businesses and organizations. To do so would “frustrate” reconciliation efforts. It is a risky claim that has not been tested in court. And keep in mind that Métis culture has always been a mixed-race child of capitalism, mercantilism, hunting traditions and deep cultural mixing and integration. How could their genuine “traditions, practices and governance structures” be anything other than a reflection of all these, of which compliance with the law – including corporate law – is an essential feature? Further, the MMF clearly expects to benefit from Canadian law – starting with the Constitution itself, and here extending to the fair procedures of civil courts – and expects governments and other organization to live up to agreements in accordance with law.
Better Off Without Ottawa
Tom Flanagan, professor emeritus of political science at the University of Calgary, uses the Métis as an example of the problematic tendency of “defining groups of people in racial terms and putting them under the paternalistic control of the state.” In discussing the process leading up to the recently-concluded self-government agreements that lie at the heart of the current legal fight, Flanagan dismisses the claim that the “Métis have missed out on the benefits that First Nations receive as aboriginal peoples.” Rather, he argues, the evidence points in the opposite direction:
“The Métis are better off than First Nations precisely because they have always been independent and self-supporting, the ‘free people,’ as they have often called themselves. It is no accident that Métis do better than First Nations on every indicator that Statistics Canada measures, including employment, income, housing and education.”
Flanagan explains that prosperity comes from the development of human capital and from participation in the broader economy, not in extracting government funding based on bloodlines and cultural identity. “Ethnic groups such as the Chinese, Japanese and Jews have achieved prosperity in Canada despite enduring periods of discrimination,” Flanagan notes. “Would they have done better, or even as well, if their efforts had been devoted to getting their names on a registry to receive compensation for wrongs done to their ancestors?” Instead, various Métis organizations are fighting over which group represents the purest form of a particular combination of mixed-race heritage.
Consider the Mexican equivalent of mixed-race Métis and other non-status Indigenous people. These are the Mestizos, a product of what is known as “mestizaje.” They have no special legal, racial status and aspire to none. They’re just “ordinary” Mexicans. If anything, the Mestizos are currently exalted by their community as representing the positive, future-oriented, creative intermingling of the Indigenous and European “races” and cultures that make up the rich, diverse and colourful human tapestry that characterizes that country – a culturally fused “creative participation” with neither the Indigenous nor European side being regarded as superior.
Benefits of Diversity
In Canada, instead of recognizing and celebrating the broad diversity of their heritage, the Métis – or at least their official organizations – seek to have themselves racially pigeon-holed as “Indigenous.” And in doing so, they deliberately ignore the crucial other part of their heritage.
Consider the case of former Trudeau Cabinet minister Jody Wilson-Raybould, described by the Canadian Encyclopedia as “Canada’s first Indigenous justice minister.” In fact, she is of mixed racial heritage. Her father was Indigenous and her mother a white schoolteacher. Her husband is white. She was born and raised in Vancouver. She is thus an example of the social mixing essential to the Canadian experience and epitomizes the richness and success of the integrationist model. Based on the various definitions offered by the courts listed above, we might accurately consider her Métis. Yet it’s fashionable – as well as personally and politically advantageous – for Wilson-Raybould to define herself as “Indian” (her word choice in the title of her autobiography).
“…[It] makes it harder to fall back on the tribal identities that have guided (disastrously) so much of human history, and that are now resurgent. Your background pushes you to construct a worldview that transcends the tribal…You’re also accustomed to the idea of having several selves, and of trying to forge them into something whole, this task of self-creation [being] a defining experience of modernity. Focusing on our multiple social identities imparts mental flexibility…and forces one to think more deeply about the world. It’s linked to economic prosperity and creativity.”
A richly varied and multifarious heritage ought to be the source of great pride. Diversity is said to be our strength, after all. What a shame that such a positive and quintessentially Canadian concept as Métis has been turned into yet another source of legal division and social disharmony.
Peter Best is a lawyer based in Sudbury, Ontario and author of the 2018 book There Is No Difference: An Argument for the Abolition of the Indian Reserve System and Special Race-based Laws and Entitlements for Canada’s Indians.
Source of main image: City of Winnipeg Archives.