Are the Métis in Section 91(24) of the Constitution Act, 1867? An Issue Caught in a Time-Warp
| Author | Bradford W. Morse |
| Pages | 121-140 |
121
Are the Métis in Section () of the
Constitution Act, ? An Issu e Caught
in a Time-Warp
.
A. INTRODUCTIO N
Addressing the question posed in t he title of this paper has proven to be
particula rly di cult for me on a personal level. In some senses, I have
been w restling with the u ncertainty implicit in the query for much of
my professional life. I have authored and co-authored a variety of legal
articles on var ied aspects of this topic for many years; I have prepared
internal brieng notes and legal opinions for the Native Council of Can-
ada (now known as the Congress of Aboriginal Peoples) and for other
See, for example, Brad ford W. Morse, “Government Obligation s, Aboriginal
Peoples and Section ()” in David C. Hawke s, ed., Aboriginal Peoples, G overn-
ment Responsibi lity: Exploring Federal and Pro vincial Roles (Ottawa: Car leton
University Press, ) at ; als o Bradford W. Mor se & Rober t K. Groves ,
“Canad a’s Forgotten Peoples: e Aborigin al Rights of Métis and Non-St atus
Indians” () Law & Anthropolog y ; Bradford W. Morse, Aboriginal Self-
Government in Aust ralia and Canada (Kingston: In stitute of Intergovern mental
Relations, Q ueen’s University, ); Bradford W. Morse & John Giokas, “Do the
Métis Fall w ithin Section () of the Constitut ion Act, ?” in Royal Commis-
sion on Aboriginal Peoples , Aboriginal Self-Gover nment: Legal and Constitution al
Issues (Ottawa: Supply and Ser vices Canada, ) at ; Bradford W. Morse &
Robert K. Groves, “Const ituting Aborigina l Collectivities: Avoiding New Peoples
‘In Between’” () Sask. L. Re v. ; Bradford W. Morse & Robert K. Groves,
“Métis and Non-Status Ind ians and Section () of the Constit ution Act, ” in
Paul Chart rand, ed., Who Are Canada’s Aborigina l Peoples? Recognition, Den-
ition and Jurisdict ion (Saskatoon: Purich Publicat ions, ) at –.
122 .
Indigenous peoples’ organizat ions in Canada. For well over t wo dec-
ades, I have also advocated in favour of eit her a reference to our hig hest
court or a constitutional amendment to resolve this debate. e govern-
ments of Canada a nd the Northwest Territories had each seriously con-
templated making a reference for resolution of this constitutional issue
in the mid-s, but never proceeded w ith the plan. Agreement was
reached among all prime ministers, premiers, a nd leaders through t he
Charlottet own Accord in . at accord would have led to a constitu-
tional overhaul. It would have decided this matter conclusively in favour
of expressly including all Aboriginal peoples w ithin a renewed sect ion
(), along with a justiciable commitment to negotiate self-government
agreements, entrenching the inherent right of self-government and other
constitutional provisions. ere wa s as well a complementary polit ical
commitment, called the Métis Nation Accord, by the federal government
with the ve western provinces, the Nort hwest Territories, and the Mé-
tis National Council, to develop a new relationship with the Métis Na-
tion. at consensus, however, died with the rest of the accord’s defeat in
separate, but simultaneous national and Quebec referenda in October of
. As a result, the government of Canada continues to treat the Méti s
as outside its section () jurisdiction.
e jurisdictional question itself has not died. It continues to plague
the very core of the political and legal position of the Métis people of
Canada. Section (), a provision dating back to Confederation in
, remains the single largest st umbling block to welcoming the Métis
people, and especially those of the Métis homeland, into the circle of
Confederation in the st century. Over the years, many federal ministers
and senior ocials have proposed putti ng the question aside and focus-
ing on eorts to ach ieve pract ical measures to address socio-economic
imbalances between the Métis a nd other Canadians. Although this ap-
proach has helped spur some tangible gains, creating federally f unded
e accord was signed on August by the rst m inisters and national
Aborigina l leaders, with the dra legal text released on October. It proposed to
amend s. () to replace “Indians” w ith “Aboriginal Peoples of Canada.” It also
would have protected the long-sta nding unique relationships est ablished for speci-
ed Métis sett lements in Alberta by enacti ng s. E through which the prov ince of
Alberta would h ave received concurrent yet subordinate juri sdiction to the federal
government concerning t he Métis people within its borders .
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