What is a nation? According to Canadian philosopher Will Kymlicka, it is a “historical community, more or less institutionally complete, occupying a given territory or homeland sharing a distinct language and culture.” American foreign affairs expert Robert Kaplan says nations are “practical communities…of geographic and historical association.” The Oxford English Dictionary defines a nation as “a large aggregate of communities and individuals united by factors such as common descent, language, culture, history, or occupation of the same territory, so as to form a distinct people.”
Even Joseph Stalin agreed that land, community, continuity and distinctiveness are the essential characteristics of a nation. “A nation is an historically evolved, stable community of language, territory, economic life, and psychological makeup manifested in a community of culture,” the murderous Soviet dictator wrote in his 1913 treatise Marxism and the National Question.
Something a nation is not: a corporation.
So why did Ottawa recently sign a “nation-to-nation” treaty with a corporation purporting to represent a landless, fully assimilated, colonial-era people who can’t even agree on a common definition of who they are?
Are the Métis people considered a nation within Canada?
The Red River Métis Treaty, signed in November 2024, recognizes the Métis as a nation, granting them self-government powers and significant federal funding to support programs and services for their members. Some argue that this recognition is problematic, however, since the Métis lack many essential elements of nationhood, such as a continuous homeland, a distinct language spoken widely among their people, and a cohesive governance structure.
The Red River Métis Treaty
On November 30, 2024, the Government of Canada put its name to the Red River Métis Treaty, committing itself to a “nation-to-nation, government-to-government relationship based on the recognition, affirmation, and implementation of the rights of the Red River Métis.” The document describes how Ottawa intends to transfer self-government powers and an ample supply of federal funds to Métis people in Manitoba. To be effective, the treaty must still be ratified by both houses of Parliament.
The Red River Métis Treaty purports to establish a “nation-to-nation, government-to-government relationship” between Canada and the Manitoba Métis Federation (MMF). Shown (left to right), MMF president David Chartrand, Winnipeg MP Dan Vandal, federal Crown-Indigenous Relations Minister Gary Anandasangaree and Al Benoit, MMF Chief of Staff, during the signing ceremony on November 30, 2024. (Source of photo: Manitoba Métis Federation/Facebook)
The treaty presents many major problems of practical, precedential and conceptual import. Practically speaking, a “nation-to-nation” treaty obviously requires two nations to participate. And while the Red River Métis, also called in the treaty “the Manitoba Metis Federation”, style themselves as la Nouvelle Nation, or “the New Nation”, this is merely a branding exercise. They are in fact a corporate entity. As the preamble to the treaty states, “Canada required the Manitoba Métis Federation (MMF) to incorporate Manitoba Métis Federation Inc. (MMF Inc.) in order to facilitate funding arrangements and the establishment of intergovernmental relationships.” Elsewhere, MMF Inc. is defined as a “legal entity formerly incorporated under The Corporations Act, C.C.S.M c. C225 and continued under the Canada Not-for-Profit Corporations Act.”
This bit of legal legerdemain was necessary because a binding treaty can only exist between legal persons. Under international law all genuine nations are legal persons. The same goes for the 634 recognized First Nations scattered throughout Canada. These are also legal persons and they can point to specific geographic locations as their homebase and make defensible claims to a distinctive racial heritage and continuous sense of community. Treaties signed with these groups, including the numbered treaties of the Canadian West and northern Ontario during the late 1800s and early 1900s, as well as modern treaties such as the 2000 Nisga’a Treaty, were made between two such sovereign bodies. These agreements also involved a clear exchange of interests. In return for relinquishing their claim to a broader territory of Canada, native groups were given specific land rights and other considerations.
In contrast, Manitoba Métis Federation and Red River Métis do not denote a legal person. They are business or operating names by which MMF Inc. carries on its public activities. MMF Inc. is therefore the only legal person with whom Canada could enter into a binding, enforceable “treaty” relationship. The fact Canada required its treaty counterpart to be a corporation should be seen as the first piece of evidence that this is not a genuine treaty between genuine nations. It is really a corporate-commercial agreement.
Beyond a lack of coherent nationhood, the Red River Métis also have nothing to trade. They have no existing land base or sovereignty to give up since they have not occupied any particular area on a unified and continuous basis across recent memory. Unlike most such commercial agreements, it is all one way, and it thus promises to be highly profitable for an officially “not-for-profit” corporation. For this and numerous other reasons explained below, it should be impossible for Canada to sign – or ratify – a treaty with the “Red River Métis”.
Mystery of the Métis
The question of who or what the Métis are has long been a puzzle for scholars and lawmakers. The term traditionally refers to descendants of any union of an Indigenous and non-Indigenous person within Canada. The most familiar example of this occurred during the fur trade of the 18th and 19th centuries in Rupert’s Land, the vast Hudson’s Bay Company concession that later became much of western and northern Canada. The mixed-race mercantilists who sprang from these relationships – typically French but also including English, Scottish or Irish fathers and Indian mothers – were often centred on the Red River area of what is now Manitoba.
Métis is best understood as an amorphous concept unconstrained by geography. As distinguished Métis lawyer Jean Teillet put it in a 2012 article, ‘Finding the boundaries of a physical settlement that can be called a Métis community is an exercise in futility.’
They also roamed widely throughout the Prairies while on hunting expeditions and frequently hired themselves out as labourers in other remote areas. Due to land disputes with Canada once it acquired Rupert’s Land in 1870, the Manitoba Métis (as they were then called) engaged in two rebellions, led by Louis Riel, against the federal government. In the aftermath of their two defeats, especially following the North West Rebellion in 1885, they dispersed widely throughout the Canadian and American West.
Despite this well-known backstory, the concept of “Métis” is not exclusive to the Prairies; racial mixing can occur wherever and whenever natives and whites come into contact. The 1996 Royal Commission on Aboriginal Peoples, for example, made explicit mention of Métis communities in Labrador and the Maritimes. There is also a vocal and well-developed Métis community in Ontario. Métis is best understood as an amorphous concept unconstrained by geography. As distinguished Métis lawyer Jean Teillet put it in a 2012 article, “Finding the boundaries of a physical settlement that can be called a Métis community is an exercise in futility.”
In the nearly 140 years following the North West Rebellion, Canada’s Métis integrated themselves nearly completely into broader society. Judging by maps distributed by MMF Inc. showing the full extent of its imagined imperium, the notional Métis nation is scattered across the entire Prairies and into northern Ontario and northern B.C. without any specific locus. According to the 2021 Census, 624,000 Canadians claim Métis identity. Reflecting the realities of modern Canadian life, many of them live in urban areas as ordinary, fully assimilated citizens of Canada. For example, nearly 100,000 people in Manitoba identify as Métis, yet only 38,000 of them belong to MMF Inc. Of this group, nearly half live in Winnipeg. A mere 4,000 actually voted on the new Red River Métis Treaty.
Perhaps in an attempt to overcome the lack of a specific and continuous physical presence anywhere in Canada, the preamble to the Red River Métis Treaty states that Canada’s historical relationship with the Métis has been “steeped in colonialism”. This phraseology is clearly meant to imply an element of shame on Canada’s part – that colonialism has somehow been imposed on the Métis and that the treaty is a way to redress this injustice.
To be clear, the Métis owe their entire being to colonialism. Without European involvement in the fur trade, there would never have been any racial mixing and not one Métis person would ever even have been born. The Métis are a colonial creation from birth to culture. Consider further that every item or habit associated with Métis heritage – York boats, Red River carts, pemmican, blue capotes, red waist sashes, beadwork, jigs and fiddles – all represent the merging of European and Indigenous elements. Theirs is a post-contact mélange culture.
As for the Michif language peculiar to the Métis, according to Statistics Canada, there are only 1,485 fluent speakers in all of Canada, with a mere 360 claiming it to be their mother tongue. Among those who profess Métis identity, the Cree Indian language is actually far more common. This again points to the difficulties involved in pinning down a distinctive definition for Métis beyond the fact it involves someone who is part-native and part-white.
The Rise to Full Native Status
Despite the Métis’ geographic, linguistic, cultural and racial indistinctiveness, Canadian law has gradually placed a cloak of Indigeneity upon them. Initially ignored during the drafting of the Constitution Act, 1982, the Métis were surprisingly granted recognition at the last minute through Section 35 of the Canadian Charter of Rights and Freedoms (apparently at the suggestion of NDP MP Svend Robinson). This put them alongside Indian and Inuit as “aboriginal peoples of Canada”, although without any clearly defined rights.
Since then, their grasp on the privileges of native status has grown steadily. In 2003, the Supreme Court of Canada ruled that Métis harvesting rights (for hunting, fishing, trapping and foraging) were on a par with those of other Indigenous people. In 2013, the Court criticized the federal government’s handling of an 1870 Métis land grant, laying the groundwork for the current negotiations. And in 2016, the Daniels v. Canada case offered the Métis a potential full slate of aboriginal rights, as are currently enjoyed by First Nations and Inuit. Now this process has culminated in a fully-fledged “nation-to-nation” treaty.
Significantly, the areas identified in maps by MMF Inc. as its homeland have already been allocated to other First Nations under numbered treaties 1, 2, 3 and 10. This overlap presents another irremediable problem for Métis nationhood. How can two “aboriginal groups” lay claim to the same piece of real estate simultaneously? When the Métis first argued in 2018 that their “homeland” included nearly all of western Canada, it sparked sharp controversy with First Nations. The same conflict resurfaced immediately after the Red River Métis Treaty was announced.
Just days later, two Manitoba native bands launched a court action against both Canada and MMF Inc., demanding the treaty be declared invalid since it infringes on their Section 35 rights. “It directly impacts the other Indigenous nations in the same region…because what you’re doing is you’re splitting resource management activities, whether it’s fisheries, whether it’s hunting, whether it’s harvesting of medicines, or even forest management,” Faron Trippier, a lawyer for the Dakota Tipi First Nation and Canupawakpa Dakota Nation, told CBC News. Since the Métis only came into existence post-contact, Trippier argues, their rights must necessarily be inferior to those of First Nations. “In a longer timeline, you’ll see who are…the original Aboriginal title holders,” the lawyer vowed.
A vast flood of federal funding has caused a split over who gets to lay claim to being Métis and therefore gets to control that funding.
A similar lawsuit arose when Ontario Métis began their own (still uncompleted) self-government talks with Ottawa in 2022; the Wabun Tribal Council representing six First Nations in northern Ontario argued that any federal plans to recognize Ontario Métis rights “misappropriates First Nations ancestors and history to retroactively transform a modern group of individuals with some mixed First Nation ancestry into a so-called ‘Métis’ nation.” With provincial Métis organizations in B.C. and Alberta now citing the Red River Métis Treaty as a precedent for their own “nation-to-nation” agreements, things are primed for more legal fireworks.
I’m Métis! No You’re Not, I’m Métis!
Another deeply problematic feature of the treaty is that it was signed amidst an internecine feud over who actually speaks for the Métis. All Métis were once represented by a national umbrella organization called the Métis National Council Secretariat Inc. (MNC Inc.). Since the 2016 Daniels decision and the Justin Trudeau Liberal government’s enthusiastic embrace of Métis “nationhood”, a vast flood of federal funding has caused a split over who gets to lay claim to being Métis and therefore gets to control that funding. In 2021, MMF Inc. left the national group claiming they alone represented the one true Métis identify due to their link to the original Red River colony.
This triggered a fractious lawsuit launched by MNC Inc. against MMF Inc. over control of a $30 million federal Métis trust fund that MMF Inc. took with it when it left the national group. So far, it appears MMF Inc. is ahead in the battle for this pot of money. In July 2023 MNC Inc. lost an interim injunction motion and were ordered to pay court costs of $213,000 to MMF Inc.; the litigation’s current status remains unclear. Following the departure of MMF Inc., Métis organizations in British Columbia and Saskatchewan also left the national body. At present only Alberta and Ontario Métis are represented by the national-in-name-only MNC Inc.
While MMF Inc.’s departure from the Ottawa-based MNC Inc. has had catastrophic consequences for the unity of a “national” Métis movement, at home in Manitoba business appears to be booming. According to MMF Inc.’s most recent financial statements, the corporation boasts annual revenue of $158 million and net income of $11 million. The firm controls a complex web of interrelated companies and has extensive real estate holdings in Winnipeg and throughout Manitoba.
Alongside this entrepreneurial activity, MMF Inc. also receives an astonishing amount of public funding, including $98 million per year from Indigenous Services Canada, $43 million from Manitoba Hydro and $17 million from Employment and Social Development Canada. From this vast supply of public largesse, however, little appears to find its way to the ordinary Métis who work outside MMF Inc.’s head office. Among the firm’s biggest expenses are $34 million on salaries, $15.5 million on professional fees, $11.7 million for building construction and $4.6 million for travel. According to the notes to the financial statements, the activities of MMF Inc. include numerous transactions between related corporations, such as the Métis Economic Development Organization, 5785066 Manitoba Ltd., Louis Riel Capital Corporation and Métis N4 Construction Inc.
The Powers That Will Be
If and when the Red River Métis Treaty is ratified, MMF Inc. will presumably be the beneficiary of far greater federal transfers to accommodate the wide range of “Self-Government Arrangements” the treaty contemplates. As its text explains, these new powers include providing “citizens” of the undefinable Métis nation with education, health care, economic and social development, child and family services, justice, environmental protection, cultural development and on and on. Every possible function of present-day government with the possible exception of national defence and international relations is available to be downloaded to a putative Métis nation.
The stated goal of this massive transfer of power and funding is, as the treaty puts it, “Red River Métis Citizens having equal opportunities for well-being to those of other Canadians, achieving and maintaining equity in socio-economic outcomes between Red River Métis Citizens and other Canadians.” The treaty further promises “Red River Métis Citizens having access to public programs and services that are reasonably comparable to those available to other Canadians.” This effectively renders future funding commitments – and the burden on Canadian taxpayers – open-ended and unlimited.
Redundancy delivered: Once ratified, the Red River Métis Treaty will allow MMF Inc. to provide its “citizens” with nearly every possible government service and program, even though these services and programs are already delivered by existing levels of government.
And yet, as Canadian citizens who mainly live in the most accessible parts of Manitoba, the citizens of the Red River Métis nation already receive all these benefits, services and privileges from their municipal, provincial and federal governments. They have access to the exact same health care, education, justice, welfare and economic development programs as any other resident of the province. The only exception might be programs for Métis “cultural development”, something that could easily be delivered without creating a new level of government. In fact, MMF Inc. could fund such efforts right now given its huge bankroll. (In 2023, it spent a mere $175,694 on “Culture and Heritage”.)
In the event of a conflict between valid Métis law and federal law, Métis law will prevail – presumably over the Charter itself.
If fully implemented, the Red River Métis Treaty’s ultimate result will be to create an entirely duplicative, parallel governmental structure for a small, indistinct and virtually undefinable group of long-assimilated Canadians. Beyond being a colossal waste of taxpayers’ money, it also threatens the individual rights of each alleged citizen of the Red River Nation.
Who Voted for Fewer Rights?
The Red River Métis Treaty gives its founding corporation sole power to determine who is a citizen of its notional nation. With MMF Inc. still locked in a legal battle with MNC Inc. over who gets to define themselves as true Métis, this could prove another legal nightmare. Worse, as the text explains, this is “a treaty within the meaning of Sections 25 and 35 of the Constitution Act, 1982.” In other words, the proposed treaty will be recognized as equivalent to every other treaty and land claim agreement already signed between Canada and legitimate First Nations governments. As such, it cannot be unilaterally changed or abrogated by Ottawa. Once ratified, Canada is essentially tying its hands with this document. In doing so, it is also condemning members of the Métis nation to a permanent diminution of their individual rights.
Does the Red River Métis Treaty conflict with existing federal Indigenous law?
The Red River Métis Treaty has sparked concern with other Indigenous groups. Two First Nations (Indian governments) in Manitoba have filed lawsuits claiming the treaty infringes on their constitutional rights under Section 35 of the Canadian Charter of Rights and Freedoms, part of Canada’s Constitution, arguing that Métis claims overlap with their own treaty and resource rights. As a product of colonial-era Canada, these native groups argue that any Métis rights should be subordinate to First Nation rights.
Section 25 of the Constitution Act, 1982 states that the Canadian Charter of Rights and Freedoms, “shall not be construed so as to abrogate or derogate from any aboriginal, treaty or other rights and freedoms.” The new treaty mirrors and perhaps emphasizes this exception to the Charter since it expressly gives MMF Inc. jurisdiction to “preserve, promote and develop” any allegedly culturally-distinct features. In the event of a conflict between valid Métis law and federal law, Métis law will prevail – presumably over the Charter itself. The treaty adds further vagueness to the protection of individual rights by stating that the Charter “applies to MMF Inc. in respect of all matters within its authority, bearing in mind the free and democratic nature of the MMF as recognized in this Treaty.” [Emphasis added.] Whatever that means.
The illiberal implications of such half-hearted defences of individual rights were highlighted in the clash between native and national law in a landmark Supreme Court of Canada case last year. In Dickson v. Vuntut Gwitchin First Nation, the court ruled that when Indian band law and the Charter collide, band law is superior if its ostensible purpose is to protect “Indigenous difference”. As a result, Indian reserves and modern, self-governing treaty territories are now de facto Charter-free zones.
A looming loss of rights: The 2023 Supreme Court case of Yukon resident and Vuntut Gwitchin First Nation member Cindy Dickson revealed that when native law and Canada’s Charter of Rights and Freedoms come into conflict, native law prevails. A similar fate awaits Métis members under the new treaty. (Source of photo: APTN National News)The “citizens” of the Red River Métis can expect more of the same. Whenever a conflict may arise between Métis jurisdiction and that of the province or federal government, the treaty claims Métis law will take priority. The treaty even posits that the Red River Métis could create their own complete justice system, involving not only laws but courts and jails as well. How this could be created for a nation with no identifiable physical presence beyond a head office in Winnipeg is not explained.
Indeed, the treaty seems wholly unconcerned with such practical matters. It blithely states that “until there is another court or body with authority over the adjudication of offences arising under Red River Métis Law, the provincial or territorial court in the jurisdiction where the offence occurred has jurisdiction to hear and determine proceedings in relation to prosecutions of offences under Red River Métis Laws.” But who will pay the costs of piggybacking Métis law on the provincial court system? Or to enforce such laws? Keep in mind, the province of Manitoba is not even a party to this treaty.
Nothing But Downside
Amid the many obstacles, conflicts and absurdities involved in signing a “nation-to-nation” treaty with a non-nation corporation, the gravest danger of all lies in Canada’s reckless weakening of its own inherent sovereignty. Once it is in possession of self-government treaty rights, MMF Inc. can presumably demand the right to be consulted and accommodated on any proposed natural resource project or other private or public undertaking throughout the province. In this way the organization could become yet another roadblock to getting anything done in this country. All that will be required for them to insert themselves into any approval process will be to assert that the project in question might adversely affect their hunting, fishing, gathering or other rights. In the absence of an explicit geographic boundary for the Métis nation, perhaps the entire province is fair game for such obstructionism. Who knows?
Often under the guise of the profoundly undemocratic United Nations Declaration on the Rights of Indigenous Peoples, this sort of activity is already undermining the Crown sovereignty of federal and provincial governments and impeding their ability to act in the best interests of the entire country and its citizens. It also prevents markets from functioning properly and erodes the foundational principle of individual equality under the law.
The Red River Métis Treaty looks more like a power grab by a highly-profitable corporation. And its stated goal is to provide duplicate services to assimilated customers already well-served by existing levels of government.
An example of the real-world implications of such a recusal of sovereignty can be seen currently in B.C.’s plan to effectively destroy its mining prospecting industry by giving native groups a veto over mineral exploration permits. No competent national government should ever willingly give up its sovereign ability to decide what can and cannot occur within its own borders. And no other country has engaged in this degree of self-emasculating behaviour as Canada. While Australia came close with its “Voice” referendum in 2023, the public ultimately rejected the proposal, voting instead to protect their own national sovereignty.
Strangely enough, the myriad dangers arising from granting full aboriginal rights to Manitoba Métis have largely been ignored by the rest of Canada. The limited media coverage to date has been mostly laudatory. One notable exception comes from Jerry Storie, a former Manitoba MLA who served as provincial Minister of Northern Affairs from 1983 to 1985 in the NDP government of Premier Howard Pawley. As Storie pointed out in a trenchant Winnipeg Free Press op-ed published in December, “Manitobans, in fact all Canadians, should be concerned that a ‘treaty’ is being signed to support another ‘nation’ within Canada without discussion.”
While Storie admits that the Red River Métis have some legitimate grievances surrounding the founding of Manitoba – in particular, a slow-to-arrive federal land grant in the post-Confederation years – such issues are best handled through negotiations, not by granting nationhood. Of much greater concern to him are the treaty’s broader implications. This includes the relinquishing of Crown sovereignty to an indistinct Métis people, the precedent set for future treaties and the lack of consultation with other affected parties, in particular First Nations. “Is it a precursor to establishing other Métis nations in other provinces?” Storie asks. “Should we not have a say on matters that may obligate us to yet-unknown costs and future problems? If an agreement is built on the notion of a Métis nation, shouldn’t we understand its underpinnings and rationale?” All Canadians should be asking the same questions.
How have Métis rights evolved since Canada’s Constitution was passed?
The concept of Métis rights has steadily expanded since their inclusion in Section 35 of Canada’s new Constitution Act in 1982 (which includes the Canadian Charter of Rights and Freedoms). Court decisions, including the 2003 Powley case and the 2016 Daniels case, have progressively recognized Métis harvesting rights and other legal protections, despite ongoing debates about their historical and cultural distinctiveness compared to Canada’s First Nations (Indians) and Inuit.
Canada’s negotiations with Indigenous people – from early colonial-era treaties to the Royal Proclamation of 1763 to the post-Confederation numbered-treaties and modern self-government agreements – were all conducted with groups that met some basic definition of nationhood. They represented racially, linguistically and culturally distinct societies that roamed across or occupied specific geographical areas, and practised recognizable forms of governance – thereby exercising a form of sovereignty.
The modern Red River Métis meet none of these criteria. Their treaty looks more like a power grab by a highly-profitable corporation. And its stated goal is to provide duplicate services to assimilated customers already well-served by existing levels of government. The treaty will thus do nothing to improve the lives of residents who identify as Métis, with the possible exception of those working at MMF Inc.’s head office. Instead, it will diminish their existing rights, waste taxpayers’ money and weaken the authority of Canadian legislatures. The anticipated flood of federal funding might even create a debilitating sense of dependency among Manitoba Métis where none existed before.
Whenever it reconvenes, Canada’s Parliament must reject the Red River Métis Treaty.
Peter Best is a retired lawyer based in Sudbury, Ontario and author of the 2020 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: Shutterstock.
