Neither Fish nor Indians': Pursuing Crown-Métis Relations through Historical Evidence Concerning Policies and the Constitution Act, 1930
| Author | Frank J. Tough |
| Pages | 153-206 |
153
“Neither Fi sh n or Indians”: Pur suin g
Cro wn–Métis R elat ions thr ough Historic al
Evi denc e Conce rnin g Polic ies and the
Constitution Act, 1930
.
A. INTRODUCTION: “MUST BE READ GENEROUSLY”
e question of the recognition of federal responsibilit y for t he Métis
under section () of the Constitution Act, , can be pursued by con-
sidering the relationship between the Crown and the Métis. at relation-
ship can be p ondered by considering legal doctr ines and principles or it
can be careful ly reconstructed through historica l evidence. O f course,
the interpretation of historical evidence can be informed by t he values
of justice and equity, or it can draw on absurdities, formalities, and false
dichotomies to come to the aid of antagonistic views, for insta nce, those
who regret t hat Métis rights were ever recognized in the rst i nstance.
By being cognizant of the surrounding circumsta nces of legal a nd pol-
itical processes , this analysis will attempt to demonstrate the value of a
nuanced approach for utilizing records.
is title borrows f rom a centuries-old idiom used to des cribe dicult categorie s,
“Neither sh nor fowl,” or, more accurately, “Neither sh, nor esh, not fowl, nor
good red herring.” It serves a s a subtle reminder about the many “red herri ngs”
that are oered to counter a rec ognition of federal jurisd iction concerning the
Métis due to the problem of classi fying this Abor iginal people.
For those contemplating the relevance of historical evidence, such as questions of
fact, select ion, and interpretation, see E.H. C arr, What Is History? (Harmondsworth:
Penguin Books, ; original ) at –. See omas Flanagan, “e Case against
Métis Aborigi nal Rights,” Canadian Publ ic Policy vol. , no. () at –.
154 .
While the intention is not to relentlessly pursue all the problems of
law and historical fact that frequently emerge in Aboriginal and treaty
rights litigation, the analysis here contradicts se veral aspects of the large
historical conclusions deriving from t he Blais decision. In Blais, the Su-
preme Court found:
e NRTA [Natural Resources Transfer Agreement] i s a constitutional
document which must be read generously within its contextual and his -
torical con nes and yet in such a way that its purpose is not overshot.
Here, the appellant is not entitled to benet from the protection accord-
ed to “Indians” in the NRTA. First, the NRTA’s historical context sug-
gested that the term “Indians” did not include t he Métis. e historical
documentation indicated t hat, in Manitoba, the Métis had been treated
as a dierent group from “India ns” for purpos es of deli neating rights
and protections. S econd, the common usage of the term “Indian” in
did not encompass the Métis. e terms “Indian” and “ half-breed”
had been used to refer to s eparate and distingu ishable groups of people
in Manitoba from the mid-th century through the period in which the
NRTA was negotiated and enacted. e location of para. in the NRTA
under the heading “India n Reserves” further supports this inter preta-
tion. ird, the purpose of para. of the NRTA was to ensure respect
Most of the recent litigation concerns t he eect of the NRTAs on the treaties cov-
ering the prai rie provinces. e NRTA Indian livel ihood right provided:
. [] In order to secure to the Indian s of the Province the continuanc e of
the supply of game and sh for t heir support and subsistence, Ca nada agrees
that the laws respec ting game in force in the Provi nce from time to time shal l
apply to the Indians w ithin the boundar ies thereof, provided, however, that
the said India ns shall have the right, wh ich the Province hereby assures to
them, of hunting, t rapping and shing game and sh for food at all seasons of
the year on all u noccupied Crown lands and on any ot her lands to which the
said Indians m ay have a right of access.
In the Alber ta and Saskatchewan ag reements, the Indian hunting r ight is found in
paragraph , whereas the same wording is found i n paragraph in the Manitoba
agreement. ree Memora nda of Agreement were made: () Dominion of Canada
and the Province of M anitoba ( December ); () Dominion of Canada a nd
the Province of A lberta ( December ); and, somewhat later () Dominion
of Canada and Prov ince of Saskatchewan ( March ). By convention, these
agreements are referred to a s the Natural Resources Transfer Agreement s,
[NRTAs]. e content of these agreements is very sim ilar.
“ ” 155
for the Crown’s obligations to “India ns” with respect to hunti ng rights,
who were viewed as requir ing specia l protection and assi stance. is
view did not extend to t he Métis, who were considered more independ-
ent and less in need of Crown protection.
And more specically, the Court asserted: “We nd no reason to disturb
the lower cour ts’ ndings that neither the Crown nor the Métis under-
stood the ter m ‘Indians’ to encompass the Métis in the decades leading
up to and including the enactment of the NRTA.” Based on the evidence
before the Court, this nding may have been reasonable; however, this
chapter will present historical evidence that directly contradicts this
legal conclusion. ere are many large issues involved in the NRTA, most
of which have been ignored or handled badly. It is not possible here to
argue the inclusion of the Métis in the Indian livelihood rights provision
in each of the NRTAs (paragraph in the Alberta and Sask atchewan
agreements; paragraph in t he Manitoba agreement), although the a n-
alysis oered here challenges some of the assumptions that were devised
for interpreting the “hunting” rights paragr aph). Nonetheless, it is my
impression that the arguments made in the Blais c ase and the actual de-
R. v. Blais, [] S.C.R. at . Recall, that t he essential issue concerne d a
Métis constitut ional right to hunt under the NRTA.
Ibid. at .
Only recently are hi storical analyses of t he Indian interests in the N RTAs develop-
ing. See Robert Ir win, “‘A Clear Intention to Eect Such a Modic ation’: e
NRTA and Treaty Hu nting and Fishing Rights ,” Native Studies Review vol. , no.
() at –; and Frank J. Tough, “e Forgotten Constitut ion: e Natural Re-
sources Transfer Agreements a nd Indian Livelihood R ights, ca. –,” Alberta
Law Review vol. , no. () at –. Neither Er win nor Tough found
evidence of clear a nd plain intent on the part of the Crow n to modify treaty rig hts
with parag raph /. e assumption that treat ies were modied by the NRTAs is
a historical ly unproven foundation adopted for all cour t decisions concerning the
“Indian liveli hood right” provided by NRTAs. For the broader pol itical context
relating to process, s ee Nicole Colleen O’Byrne, “e A nswer to the ‘Natural Re-
sources Question’: A Historica l Analysis of the Natural Resou rces Transfer Agree-
ments,” LL.M. the sis (Montreal: McGill University, ).
A rst step i n making an argu ment for an inclusion of the Métis as India ns in the
livelihood rig ht provisions of the NRTAs requires the corre ction of the historical
hypotheses i n the existing case l aw with respect to the modic ation, consolida-
tion, merger, or cutting down of t reaty rights. is task i s beyond the scope of the
present analysis.
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