Canadians have responded to news of the Federal Court’s decision to grant sweeping recognition of Métis rights with both surprise and deep concern about its potential financial implications. There have been countless reports on what the Federal Court’s decision may mean in terms of rights to land and government resources for Métis and non-status Indians, but these are all very premature.
Certainly this decision opens our nation up to the possibility of broader access to education and health benefits for Métis as well as hunting, fishing and harvesting rights recognition, and ultimately land claim negotiations. But reports speculating that this decision could cost Canada billions of dollars by recognizing the Aboriginal rights of hundreds of thousands of people are greatly exaggerated.
While Statistics Canada’s 2006 census does record that there are as many as 400,000 Métis in Canada, these are individuals who self-identified by simply check-marking a box. The Supreme Court of Canada made it very clear in the 2003 Powley decision that there is more to being Métis than simply self-identifying. While the definition of Métis is highly political and widely debated, we must defer to what the Court’s decisions have been on the matter. In order to be granted Métis rights recognition, one must be able to clearly demonstrate their ancestral connections to Métis communities that existed in central Canada prior to the government having effective control in those areas. These communities were separate from first nations or European communities, but held cultural and economic ties to both. Most importantly, in many parts of central Canada these communities stayed put and despite integration with the Euro-Canadian population throughout the 20th century, their culture and traditions continue to thrive to this very day. The number of individuals who are able to claim Métis rights based on this definition is substantially less than initially reported.
Rights recognition is also not new for Métis in Canada, although to be clear it does not apply everywhere. Attempts to achieve recognition in Quebec and Eastern Canada have failed in the courts, but there are groups continuing to raise legal challenges. Frustrated by the federal government’s denial of jurisdiction over their rights recognition, Métis in Ontario, Manitoba, Saskatchewan, parts of Alberta and the Northwest Territories have negotiated agreements with provincial governments, including hunting, fishing and harvesting rights. It is likely that this new decision by the Federal Court will only apply to those who have already been recognized by their provinces. While these relationships have at times been challenging, they demonstrate the shared benefit to government and Aboriginal communities of negotiating rights recognition and not continuing to litigate unnecessarily.
The Métis have also been working progressively with industry, and have successfully negotiated agreements with mining, forestry and energy developers throughout central Canada. The Métis rights agenda has continued to gain momentum in the past two decades because Métis communities have been working progressively with governments in a manner that allows both sides to choose the terms of their agreements, rather than wait for those terms to be chosen for them by the courts. This is the main reason why this decision on Métis rights is so critical at this moment in time for Canada. The Conservative government now stands at a crossroad with two clear options on the table: appeal or negotiate. They will feel pressured to appeal the case, in an attempt to avoid additional burden on the public purse. But, appealing this case will guarantee its appearance before the Supreme Court, where decisions made are final and inflexible. An appeal would also mean years of uncertainty followed by the very real possibility of an even stronger victory for the Métis and an edict from Canada’s highest court. Even if the Crown were to win at the Supreme Court, saving Canadians from this perceived threat of costly new programming, there would likely be future challenges.
By choosing not to appeal the Federal Court’s ruling, the government could take advantage of this serendipitous opportunity to make powerful progress with regard to Aboriginal rights recognition in Canada. Choosing this path means the government can achieve two things: first, it can negotiate. The Métis have clearly demonstrated themselves to be savvy, realistic in their objectives and open to negotiating the policy and legislative reforms that this decision will require over time. A negotiation process will ensure Canada has the ability to adjust to the new Métis rights reality in a sustainable way. Second, it would send a very clear message that this government is sincere in its intentions to promote Aboriginal rights and improve Aboriginal livelihoods. The surest path to the recognition of Aboriginal rights and reconciliation of our shared history is negotiation.
The Métis have always been an entrepreneurial, industrious people with a history of brokering peaceful agreements. Throughout the 19th and 20th centuries, many of Canada’s treaty negotiations with first nations were actually facilitated in part by Métis, or half-breeds as they were referred to at the time. This collaborative spirit is precisely the sort the Harper government should embrace with both hands and raise as the model for meaningful Crown-Aboriginal relationships.
Melanie Paradis is the manager of natural resources & Aboriginal affairs with NATIONAL Public Relations and formerly the director of lands, resources & consultations for the Métis Nation of Ontario.