A legal look at the Métis of Chibougamau

I read with some amusement that, following the results of DNA tests that show some Indigenous ancestry, Luc Michaud and 350 other individuals are claiming to be a “Métis community” with Aboriginal fishing and hunting rights in Chibougamau. As a descendant of the classical buffalo-hunting Métis in White Horse Plains, Manitoba, I was just as surprised as I imagine many Eeyou are. While it’s true, to some extent, that we followed the buffalo, I’ve never heard of any herds straying into Eeyou territory.

What are the chances of their claims of being taken seriously by a court of law? In subsection 35(2) of the Constitution Act, 1982, the Métis were recognized as one of three Aboriginal groups along with “Indians” and Inuit whose “existing aboriginal and treaty rights of the aboriginal peoples of Canada [were] hereby recognized and affirmed” in subsection (1). The first time an “Indian” claim to an Aboriginal right to fish made it to the Supreme Court of Canada was the Sparrow case in 1990. It took another 13 years for a Métis claim to a right to hunt would make it to the Supreme Court. Part of the reason for this is that, whereas Canadian governments have scrupulously kept band and treaty lists in order to determine just who the beneficiaries of Indian lands and treaty rights are, they have not done so for the Métis. Following the inclusion of the Métis in s. 35 in 1982, the federal government dragged its feet by pretending it didn’t know who qualified as “Métis” under ss. 35(2).

For this reason, unlike the previous Aboriginal rights cases involving First Nations, the Court found itself having to define “who is Métis” when it rendered the Powley decision in 2003. First of all, the Court insisted in Powley that “it is imperative that membership requirements become more standardized so that legitimate rights-holders can be identified” (para. 29) and affirmed “that the creation of appropriate membership tests before disputes arise is an urgent priority” (para. 30).

In the meantime, it provided three “important components of a future definition”: “First, the claimant must self-identify as a member of a Métis community.” Luc Michaud is certainly claiming to be Métis, but he “admits he was surprised when he discovered a Métis ancestor through a DNA test.” It’s not only Michaud himself, but “a lot were surprised, and a lot were proud when they got their results back.” Here, the Court was very clear: “This self-identification should not be of recent vintage: While an individual’s self-identification need not be static or monolithic, claims that are made belatedly in order to benefit from a s. 35 right will not satisfy the self-identification requirement.”

But the more telling part of the Court’s comment is that of identifying “as a member of a Métis community.”

Here, the Court specified: “Second, the claimant must present evidence of an ancestral connection to a historic Métis community.” Third, the Court stipulated that “the claimant must demonstrate that he or she is accepted by the modern community whose continuity with the historic community provides the legal foundation for the right being claimed.”

As Michaud told the Nation, “We were approached by the Confederation of Aboriginal Peoples of Canada’s Grand Chief Guillaume Carle to start a community.” If one needs to “start” a community, it’s because it doesn’t already exist. If it doesn’t already exist, there is no continuity between a present-day community and a historical community. Without evidence of a historical community, there is no legal foundation for Aboriginal hunting and fishing rights under s. 35.

Furthermore, the Court was clear that membership cards in non-profit associations is insufficient proof: “Membership in a Métis political organization may be relevant to the question of community acceptance, but it is not sufficient in the absence of a contextual understanding of the membership requirements of the organization and its role in the Métis community.”

DNA tests may provide evidence of mixed ancestry. But again, the Court was very clear here: “The term “Métis” in s. 35 does not encompass all individuals with mixed Indian and European heritage; rather, it 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.”

In the recent case, Le Directeur des poursuites criminelles et pénales c. Noël [2016], Roland and Martine Noël claimed Aboriginal hunting rights in Abitibi under s. 35 based on their “généalogie autochtone sauvage micmaque.” Judge Ladouceur rapidly disposed of their claims by noting that they provided no evidence of belonging to a contemporary Mi’qmaq community. He remarked on the fact that “the maternal Amerindian genealogy has for sole foundation a genealogical connexion with Magdeleine Micmac, one among 512 great-great-great-great-great-great-great-grand-parents of Mr. Noël and with Marie Micmac, one of 4096 great-great-great-great-great-great-great-great-great-great-grand-parents of Mr. Noël.”

In Québec (Procureure générale) c. Séguin [2017], Royal Séguin and the “communauté métisse autochtone de Maniwaki” claimed s. 35 hunting rights in the area around Maniwaki. Judge Dallaire similarly remarked that “the genealogical elements submitted […] bring out that in the case of the majority of the members of the community, one must often go back 10 or 12 generations to find the presence of an Aboriginal, sometimes thousands of kilometres from the region of Maniwaki, without for so much being able to make a finding of a subsequent integration into a métis community.” He noted that it would be “easier to nail Jell-O to the wall” than draw any conclusions about the existence of a métis community in Maniwaki.

However, even if this group of individuals cannot claim Aboriginal rights as “Métis” under s. 35, could they still qualify as “Métis” under s. 91(24) as Michaud claims and therefore qualify for federal services or funding intended for Aboriginal peoples? In the recent Daniels case, the Court again repeated the first two criteria of Powley: 1) Self-identification as Métis; and 2) An ancestral connection to an historic Métis community.” Furthermore, the Court stated: “Determining whether particular individuals or communities are non-status Indians or Métis and therefore “Indians” under s. 91(24), is a fact-driven question to be decided on a case-by-case basis in the future” (para. 47). In other words, if the federal government balks at their claims to be Métis, they will have little choice but to make their claim in court.

Again, there seems to be no claim here – much less any evidence – that there ever was a historic Métis community in Chibougamau. And as the two most recent cases in Québec illustrate, something more than remote Indigenous ancestry is required.

I would like to close with a few comments on just what it is to be “Métis” for those of us in the West. To be sure, the word “métis” in French simply means “Qui est issu de l’union de deux personnes d’origine ethnique différente.” In other words, Indigenous ancestry is not an essential element of being qualified as “métis”. Someone of Japanese and Lebanese background could be considered “métis” in this general sense. But in the context of North America, and more particularly in the English language in Canada, “Métis” has a long history of association to a distinct Indigenous people known as Otipemisiwak who emerged around the Lake Winnipeg basin.

For us, being “Métis” is not simply a matter of finding some minute trace of “Indian” DNA or a single, distant “Indian” ancestor in our genealogy. My father was born in St. Boniface, Manitoba, and his mother in the Métis community of St. Eustache, Manitoba. Both her parents were Métis, all four grandparents were Métis, all eight great-great-grandparents were Métis and at least 11 of her great-great-great-grandparents were Métis. Although it would be more appropriate to simply call this first generation “mixed-bloods” – for it is only retrospectively that they founded a Métis lineage. Had they married differently, their children might have ended up fully integrated into a First Nation. Furthermore, they were not simply mixed French and Cree as is often believed, but a mixture of French, Scottish, Cree, Ojibwa, Assiniboine, Sioux and other unknown First Nations, such as my Indigenous ancestor who was listed as “born in the Polar Sea” or another in “the Northwest Territory”. And the same was true of everyone else in my grandmother’s community.

There were of course those French-Canadians who arrived in St. Eustache after 1870. Whatever Indigenous ancestry the latter might have had, they not only held themselves aloof from the Métis, but also geographically segregated themselves, referring to the original Métis settlement as “Fort Rouge”. I imagine when settlers moved into Eeyou territory to extract resources, they behaved much the same way. In 1857, United Canada passed the first “Gradual Civilization Act”, which sought “the gradual removal of all legal distinctions between them and Her Majesty’s other Canadian Subjects.” This was the objective of successive federal Parliaments for the next 100 years up to and including the infamous White Paper in 1969. Having failed to do so, it’s almost as if the next best way of erasing our very existence as distinct peoples is to treat our very identities as just one more resource to be assumed, extracted and exploited.

Darren O’Toole is an Associate Professor in the Faculty of Law and the Institute of Canadian and Aboriginal Studies at the University of Ottawa